IP: RE: more about anti-spam law

[David Farber <dave () farber net>]

> Reply-To: <eackerma () u washington edu>
> From: "Ethan Ackerman" <eackerma () u washington edu>
> To: <farber () cis upenn edu>
> Cc: "Brad Templeton" <brad () templetons com>
>
> Greetings, Dave,
> I thought maybe I could share a bit about the last 2 posts about the Cal.
> spam law case and Brad Templeton's worries about the precedential effect of
> the Cal. ruling.
>
> I chime in because Washington state has to some extent "been there-done
> that" already, when its Supreme Court found its (partially different)
> anti-spam law constitutional for similar reasons earlier this year.
> (http://www.zdnet.com/zdnn/stories/news/0,4586,5092345,00.html)
> To address Brad's thoughts about this case being upheld at the federal
> level, I thought it would be informative to note that the US Supreme Court
> declined to review the (logically similar) Washington decision.
> (http://www.newsbytes.com/news/01/171669.html)
>
> I wholeheartedly share Brad's concerns about extraterritorial regulation and
> non-uniformity. But I wanted to point out that, for some
> not-very-obvious-reasons, Brad's fears may be somewhat misplaced.  The devil
> is in the details in this and the Washington case.
>
> The California case was a suit between two Cal. entities, over putatively
> entirely intra-Cal. activities.  The WA case was over an email sent to a WA
> resident that the sender knew to be a WA resident.  (The WA statute requires
> "actual knowledge" that the recipient be a WA resident, and so is less
> 'spam-blocking' than the Cal. statute.)
> Most importantly, both cases involved manipulated or deceptive subject lines
> or header info.  In both cases, the courts waxed eloquent over commerce
> clause issues, but they had good facts underlying them, and the cases really
> could have gone forward as "false advertising" cases.  I suspect the cases
> might well have turned out differently if the facts had been less
> supportive.
>
> So for all the fear this has put in those concerned about
> extraterritoriality, I think its premature to say that any state statute
> will be upheld when the facts are clearly extraterritorial.  Only time will
> tell.
> Now, as to uniformity, well, I guess I can't apologize that away...
>
> (Disclaimer: I participated as Amici in the WA supreme court decision.)
>
> Ethan
>
>
> Ethan Ackerman
> Senior Research Fellow, Center for Law, Commerce & Technology
> University of Washington School of Law
> 1100 NE Campus Parkway
> Seattle, WA 98105
> Tel:  206.440.0853/Fax: 206.616.3427
> http://www.law.washington.edu/lct/
>
>
>
> -----Original Message-----
> From: owner-ip-sub-1 () admin listbox com
> [mailto:owner-ip-sub-1 () admin listbox com]On Behalf Of David Farber
> Sent: Friday, January 04, 2002 4:25 PM
> To: ip-sub-1 () majordomo pobox com
> Subject: IP: more about -- Court upholds anti-spam law / Unsolicited
> e-mail not protected, judges say
>
>
>
> >Date: Fri, 4 Jan 2002 15:35:50 -0800
> >From: Brad Templeton <brad () templetons com>
> >To: farber () cis upenn edu
> >
> >Dave, the real depth to this issue is not about spam.  The precedent
> >set by this ruling is quite dangerous.  The California court is
> >ruling that California has the power to reach out and enforce its
> >laws on people who send mail to California, even though in most cases
> >people are unaware of what state they are mailing to.
> >
> >In their zeal to get at spammers, advocates of this law are opening
> >up a big jurisdictional can of worms.  If this were upheld at the
> >federal level, it would mean you must now learn and comply with the
> >50 different e-mail laws of every state, or take steps to learn
> >where your email is going and then obey the laws of that state.
> >
> >That's a tall, perhaps impossible order, and a major change in the
> >way email works.
> >
> >That's why the law violates the dormant commerce clause, in spite
> >of what the judges said.  This law means that if you, in Pennsylvania
> >send an E-mail to an address that happens to be in New Jersey (though
> >you don't know it) you now must either find out where it is or follow
> >California's laws just to be safe.
> >
> >This particular law may be easy to follow, because you're not sending
> >advertisements (actually, I take that back, you do forward interesting
> >product and conference promotions sometimes) but the point is you now
> >are ruled subject to any law they see fit to pass.
> >
> >But California law is not supposed to have any bearing on mail you send
> >from Pennsylvania to New Jersey, and thus the problem.
> >
> >
> >Now, as it turns out, this law is not a very good anti-spam law, since
> >it regulates single commercial mails rather than bulk mail (which is
> >really what spam is) and on top of all that it has the government
> >defining the syntax of E-mail headers rather than the IETF.  It's also
> >as ineffective as the 17 other spam laws have been.  But those issues are
> >secondary.  The precedent is the real issue here.
> >
> >It's a precedent that was set the other way in cases like ACLU v. Pataki
> >which said New York couldn't restrict web sites just because users from
> >New York fetched pages from them.
> >
> >The court failed to realize that it is very common, and indeed the norm
> >in any mail to a stranger, to have no idea what state the recipient's
> >mailbox is in.  This is unlike sending letters by the USPS where you
> >write the state on the envelope.
> >
> >One hopes criticism of the law will make this clear.  I have doubts if
> >government regulation of E-mail is the right solution to spam, but if
> >there is to be such regulation, the federal level is the place for it,
> >not the state.
> >
> >More details on that can be found on my spam website at
> >www.templetons.com/brad/spume/
>
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