Califonia's New Anti Spam Law
By Dori Friend

California Governor Gray Davis recently signed legislation that would elevate California’s existing anti-spam laws to the most stringent in the nation.

This law, set to go into effect January 1, 2004, would allow the residents of California and the State Attorney General to seek damages against those who send unsolicited e-mails to Californians with fines of up to $1,000 per email and $1,000,000 per incident.

This law is certain to be faced with many legal challenges from direct marketers and legitimate email senders. As such, legitimate senders need to be aware of this new law, it’s implications on the industry and the probable legal battles that are likely to arise.

Below are some key factors that both lawmakers and marketers will need to address:

This has the potential to be a model for a national anti-spam law.
It gives consumers, the ones most affected by spam, the right to sue.
Only email addresses that users have "opted in" will be allowed to receive e-mail.
This law would seek to go after both the spammers and the advertisers that they represent.
Most spam originates from organizations (roughly 200 of them) that are good at not being easily located.
Messages are typically re-routed, sometimes on an hourly basis using servers from outside of the United States.
This law does not define exactly what "spam" is, nor does this law go far enough to define what an "unsolicited" email is.
This law could lead to frivolous lawsuits and have little actual affect on the problem of spamming.

The consensus is that while the intentions of this law are just, to protect consumers from unwanted or offensive emails, the law itself will have little net effect in reducing the amount of spam.

Some of the legal hurdles this law is sure to face are first, the broad definitions of some of the terms, and two, the spammers themselves who will argue that their Constitutional right to free speech is being violated.

For example, this anti-spam legislation outlaws the same type of message that would be legal if it were to be sent via the United States Postal Service.

The legality of this measure will almost assuredly be contested as a violation of the "dormant commerce clause." This is a section of the United States Constitution that bans state laws from interfering with interstate commerce.

It will be imperative that the legitimate email senders maintain accurate files of their recipients’ permission to send them information via email.
Undoubtedly this will focus much attention on the issue of spam, and may lead the way to a national debate in Congress.

© Sonic-Rocket Marketing, 2003