Concerns Raised Over California's New Anti-Spam Law

by Glen Shapiro, LawAndTax-News.com, New York

30 September 2003

Experts have warned that California's new anti-spam legislation, signed into law by Governor Gray Davis last week, may be worded too broadly to be effective.

The new law, set to come into effect on January 1, 2004, imposes a fine on spammers of $1,000 per message per recipient, and up to $1 million per mass-mailing. Under the terms of the legislation, commercial e-mail from firms with which internet users have an existing business relationship is permitted, as is opt-in e-mail marketing.

However, observers have suggested that the wording of the legislation is likely to be vulnerable to legal challenges from several angles, including under the First Amendment, and under the 'dormant commerce' clause of the constitution (which prohibits state laws which interfere with interstate commerce).

Speaking to CNET News last week, California attorney with the ePrivacy Group, Ray Everett-Church suggested that:

"Certainly the California antispam law is going to face some constitutional challenges. The one I'm looking to see first is the commerce clause challenge. 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."

However, although the definitions are indeed broad, this would appear to be an erroneous assertion, as the legislation defines a California e-mail address as:

• 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;
  
• An e-mail address ordinarily accessed from a computer located in this state;
  
• An e-mail address furnished to a resident of this state.

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