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