World's toughest spam laws may be invalid

California this week enacted the world's toughest spam law. But the law, which prohibits commercial e-mail being sent to California e-mail addresses, unless a recipient has 'opted-in,' is too ambiguous to stand up in court, say the critics.

On Tuesday, Governor Gray Davis signed into law the new legislation which raises the bar in penalising spammers: it carries a fine of $1,000 per message per recipient, and up to $1 million for each mass-mailing.

The state's Attorney General, ISPs or recipients of spam can bring actions under the new law. Opt-in e-mail marketing is permitted, as is marketing where recipients have an existing business relationship with the sender, similar to the European approach.

But critics have pointed out that the wording of the new law is very broad, and is likely to be challenged on the grounds that it restricts the freedom of expression of the person sending the e-mails. Challenges could also be made on the grounds that the Act will affect interstate trade.

Ray Everett-Church, lawyer with the ePrivacy Group, told CNet News.com:

"The California law has a provision that says people may not send unsolicited commercial e-mail to California e-mail addresses. The legislation does not define a California e-mail address or how one determines what a California e-mail address is. That ambiguity is very likely to be the basis of a challenge."

In fact, the legislation defines "California e-mail address" as being any of the following:

1. An e-mail address furnished by an electronic mail service provider that sends bills for furnishing and maintaining that e-mail address to a mailing address in this state.
2. An e-mail address ordinarily accessed from a computer located in this state.
3. An e-mail address furnished to a resident of this state.

The wording might avoid court scrutiny because many expect a federal Act to supersede the Californian law. Several anti-spam bills are making their way through Congress at present, although there does not seem to be any consensus as to which one, if any, of the current proposals will be passed. Most of these provide for an 'opt-out' approach to dealing with spam.

The new Act is due to take effect on 1st January 2004.

See:

• The Act

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