gregh  2006-11-06 15:43  email  Law  privacy  spam   

My fellow USF School of Law blogger notes:

Spam:

This is good to know. Cal. Bus. & Professions Code section 17538.4 requires that spam have an opt-out feature. If you opt out and they continue spamming you, they can be liable for $50 per message up to $25,000 per day.

I wonder if the source of the spam has to be located in California?

The short answer... isn't particularly short.

California Business & Professions Code § 17538.4 was repealed in 2003. It was split up into a number of pieces. The most interesting are Cal. Bus. & Prof. Code §§ 17529.2 and 17529.8.

The former restricts the sending of spam from California or to email addresses in California (along with some restrictions on address harvesting):

Notwithstanding any other provision of law, a person or entity may not do any of the following:
(a) Initiate or advertise in an unsolicited commercial e-mail advertisement from California or advertise in an unsolicited commercial e-mail advertisement sent from California.
(b) Initiate or advertise in an unsolicited commercial e-mail advertisement to a California electronic mail address, or advertise in an unsolicited commercial e-mail advertisement sent to a California electronic mail address.

The latter provides the remedies:

(a)(1) In addition to any other remedies provided by this article or by any other provisions of law, a recipient of an unsolicited commercial e-mail advertisement transmitted in violation of this article, an electronic mail service provider, or the Attorney General may bring an action against an entity that violates any provision of this article to recover either or both of the following:

(A) Actual damages.
(B) Liquidated damages of one thousand dollars ($1,000) for each unsolicited commercial e-mail advertisement transmitted in violation of Section 17529.2, up to one million dollars ($1,000,000) per incident.

(2) The recipient, an electronic mail service provider, or the Attorney General, if the prevailing plaintiff, may also recover reasonable attorney's fees and costs.

The problem is, 15 U.S.C. § 7707(b):

(b) State law

(1) In general

This chapter supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto.

(2) State law not specific to electronic mail

This chapter shall not be construed to preempt the applicability of--
(A) State laws that are not specific to electronic mail, including State trespass, contract, or tort law; or
(B) other State laws to the extent that those laws relate to acts of fraud or computer crime.

That would seem to leave Californians with only § 17529.5:

(a) It is unlawful for any person or entity to advertise in a commercial e-mail advertisement either sent from California or sent to a California electronic mail address under any of the following circumstances:

(1) The e-mail advertisement contains or is accompanied by a third-party's domain name without the permission of the third party.

(2) The e-mail advertisement contains or is accompanied by falsified, misrepresented, or forged header information. This paragraph does not apply to truthful information used by a third party who has been lawfully authorized by the advertiser to use that information.

(3) The e-mail advertisement has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.

In short, we got a wimpy solution from the federal government that expressly preempted the laboratory that was being provided by the states. It allowed a bunch of folks in Congress to declare victory, when all we've really seen is a huge increase in the amount of spam. (At work, spam blocked by our very expensive filters currently knocks out around 50% of inbound email. Just a remaining trickle is actual spam after that.)

Until we can get widespread technical solutions, whether it's Microsoft's newly less-encumbered Sender ID, Yahoo's DomainKeys, the simpler SPF, or something else that's wandering around, things will continue to be ugly. Now that so much spam originates from the bots lingering around the world, trying to take any legal action against spammers is very, very difficult and expensive. The relatively small number of successful cases, given the huge expense of this problem, seems ample evidence of that.