Politech mailing list archives
Ethan Ackerman on zany state "check before you send" laws [fs]
From: Declan McCullagh <declan () well com>
Date: Thu, 30 Jun 2005 01:17:07 -0400
Previous Politech messages: http://www.politechbot.com/2005/06/29/michigan-laws-and/ http://www.politechbot.com/2005/06/28/brad-templeton-on/ http://www.politechbot.com/2005/06/27/mail-laws-spell/ -------- Original Message --------Subject: Re: [Politech] Utah, Michigan laws and problems with mailing lists continued [fs]
Date: Wed, 29 Jun 2005 13:38:49 -0400 From: Chris Beck <cbeck () pacanukeha net> Organization: None At All To: Declan McCullagh <declan () well com>, Eric Goldman <egoldman () gmail com> References: <42C22C28.1050001 () well com> Rumour has it Declan McCullagh, on or about 29/06/2005 1:05 AM, whispered: > * there is some reason why the email "check-before-you-send" laws are OK > in the spam context but not the harmful-to-minor email contextPerhaps the fact that spam is unsolicited, harmful-to-minot is not necessarily.
Tricky though. -- Chris Beck - http://pacanukeha.blogspot.com Opinions of bureaucrats do not create wrongs.[I recall that solicited HTM material sent to an address on the list is still unlawful. --Declan]
-------- Original Message --------Subject: RE: [Politech] Utah,Michigan laws and unsettled state of "check state before sending" laws [fs]
Date: Thu, 30 Jun 2005 00:58:54 -0400 From: Ethan Ackerman <eackerma () u washington edu> Reply-To: <eackerma () u washington edu> To: Declan McCullagh <declan () well com> CC: Eric Goldman <egoldman () gmail com> Greetings Declan, Not 100% certain this isn't more legalese than Politech would benefit from, so this may be just for you and Eric, but thought I might clarify the status of "check before you send" email laws - which Eric erroneously (but with good intentions:) suggests have been cleared of their (serious) commerce clause infirmities.WA's anti-spam law - which _wasn't_ "check-before-you-send" - was cleared ofd
some commerce clause problems - the WA supreme court found it wasn't a violation of the commerce clause for WA's anti-spam law to require "truth in subject line and headers." That law requires a standard of actual knowledge, or "should have known" that the recipient was a WA resident. Such a "knowledge" standard is a good deal different than "affirmative duty to check." At the time of bill writing, there was a simultaneous push for a registry, with automatic violations for senders spamming to those listed in the registry, and this probably lead to the popular (but erroneous) belief that WA had some kind of "must check" statute. I think a state statute with a "must check" would face a harder challenge, and I'm not aware of any cases upholding such a requirement. As added points for WA, their supreme court (unlike California's uncritical embrace of the similar, less precise CA statute) also realized there might be commerce clause & jurisdiction problems as to spam sent to Washingtonians checking email out-of-state, or to wholly non-Washington-touching email, but based on the facts (continued forged header spamming to in-staters EVEN AFTER receiving a letter from the AG saying "there's this law, you are breaking it, these are WA state residents checking their email in WA, stop now...") the Heckel case was a rather clear "knowing" in-state violation. -Ethan Ackerman (disclosure: helped write amicus adopted in WA v. Heckel) _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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- Ethan Ackerman on zany state "check before you send" laws [fs] Declan McCullagh (Jun 29)