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California bans spam, but law may be challenged

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California bans spam, but law may be challenged

  • On Tuesday, Gov. Gray Davis signed the nation’s toughest anti-spam legislation, allowing California residents to bring private lawsuits against e-mail advertisers and distributors.

Sep. 25, 2003 — California Gov. Gray Davis signed into law this week a bill widely considered the toughest anti-spam legislation in the country.

The law, which will take effect Jan. 1, 2004, bars advertisers from sending unsolicited commercial e-mail to California residents, except those who choose to “opt-in” or explicitly agree to receive the e-mail.

The legislation allows individuals to bring private lawsuits against both companies that send e-mail and the advertisers that appear in the messages. Those groups may be fined from $1,000 per e-mail to up to $1 million per e-mail campaign. Broad in scope, the law outlaws commercial e-mail sent from other states to California residents, as well as e-mail sent from California to individuals outside the state.

“California is sending a clear message to internet spammers: we will not allow you to litter the information superhighway with e-mail trash,” said Davis, in a press release announcing the law.

Critics point out that California’s solution may be too facile. According to a Sept. 24 story in The New York Times, direct marketers argue that the law will have little effect on the worst offenders (such as companies seeking to defraud consumers), who won’t be deterred by the law, and the many advertisers who send spam from abroad.

Although the U.S. Supreme Court has ruled that commercial speech is not entitled to the same level of protection as political speech, the law is likely to be challenged as a violation of the First Amendment. David E. Sorkin, a professor at the John Marshall School of Law in Chicago, says the legislation may also be fought under an entirely different context.

“The law is more likely to be struck down on Commerce Clause grounds” as an unconstitutional restriction on interstate commerce, Sorkin said.

California joins 35 other states that have passed anti-spam legislation. Many states, however, do not go so far as to ban spam, but instead require advertisers to identify their e-mail messages with the label “ADV” (for “advertisement”) in the subject line. California is the first state to create a private right of action to enforce anti-spam legislation.

Several anti-spam bills are being considered in the U.S. House and Senate this fall, and California’s aggressive law could be pre-empted if Congress approves federal anti-spam legislation.

KM


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