IP: more about -- Court upholds anti-spam law / Unsolicited e-mail not protected, judges say

[David Farber <dave () farber net>]

> 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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