E-Mail Privacy -- The Regulation of Spam

To date, sixteen states have enacted legislation regulating unsolicited commercial electronic mail, known in the industry as "UCE" and to the public as "spam." The problem for those who use e-mail as a marketing tool has been not only trying to comply with these various state laws, but also trying to comply with a handful of related laws at the federal and state level which affect how e-mail can be used for commercial purposes. California's 1998 statute, for example, is similar to "spam" legislation in other states; it requires marketers to include the abbreviation "ADV" (or, for adult materials, "ADV:ADLT") in the subject line of every unsolicited message and to provide recipients with an opt-out, toll-free phone number or valid return e-mail address. Cal. Bus. & Prof. Code § 17538.4 (Deering 2001). Some states have enacted more stringent regulatory schemes; Delaware, for example, prohibits any entity (including out-of-state marketers) from sending spam to a Delaware resident. These statutes are facing mixed response by the courts. In June 2000, a state court judge ruled that California's law was unconstitutional because it placed excessive restrictions on interstate trade, but on June 7, 2001, the Washington Supreme Court unanimously upheld that state's statute on identical grounds. Wash. Rev. Code Ann. § 19.190 (2001).

Given the varied level of restrictions in state laws, the uncertain judicial reception of such laws, as well as the assortment of various related federal and state laws, industry groups and privacy advocates alike have called for comprehensive federal legislation which would clarify the area. While several bills have been proposed in recent years, none has passed.

Most recently, the best prospect for comprehensive legislation was the "Unsolicited Commercial Electronic Mail Act of 2001," introduced by Representatives Heather Wilson of New Mexico and Gene Greene of Texas, and which had garnered bipartisan support from members of Congress, including California's Gary Miller. "Unsolicited Commercial Electronic Mail Act of 2001," H.R. 718, 10th Cong. (1st Sess. 2001). Despite solid initial support, companies and industry groups such as Amazon.com, the National Retail Federation, the Direct Marketing Association, and consortiums representing banks and securities firms soon lined up to oppose the legislation. Meanwhile, consumer and privacy groups argued that the bill, which prohibited class action lawsuits and declined to adopt an "opt-in" mechanism similar to that of the anti-junk fax Telephone Consumer Protection Act of 1991 ("TCPA"), was too weak. "Telephone Consumer Protection Act of 1991," 47 U.S.C. § 227 (2001).

The original text of the bill:

• established criminal penalties when messages were sent containing fraudulent routing information or headers;
• made it illegal to send unsolicited e-mail to con- sumers who had asked to be removed from a distribution list;
• empowered internet service providers to block all messages from senders identified as "spammers";
• allowed consumers to sue companies that ignored their requests to be removed from distribution lists; and set a $500 per message penalty for each unsolicited e-mail sent to an individual who had asked not to receive such messages.

The House Judiciary Committee's amendments eliminated all but the first of these provisions, reducing the bill's reach to technical fraud, and added a provision directing the U.S. Attorney General to order warning labels for e-mails containing pornographic material.

There is no word as to when the legislation will come up for a full vote in Congress. In March 2001, an identical version of the legislation proposed by Representatives Wilson and Greene was introduced in the Senate by Montana's Conrad Burns as the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2001," or the "CAN SPAM Act of 2001"; it remains to be seen whether the recent change in control of the Senate will result in inconsistencies between the two bills. "CAN SPAM Act of 2001," S.630, 107th Cong. (1st Sess. 2001). Until such a time as comprehensive spam legislation is enacted at the federal level, the regulation of spam will continue to be an awkward combination of state and related federal laws.