California Bans Junk Email

24 September 2003

With rare jurisdictive simplicity, the state of California has banned unsolicited commercial emails, effective January 1 2004.

America’s most populous state, California is home to some of the globe’s largest internet companies and accounts for around 20% of the nation’s outbound and inbound email.

The bill, signed late Tuesday by state governor Gray Davis, prohibits the sending of commercial emails to anyone in California who has not specifically requested them. Says the bill’s sponsor, Democrat Senator Kevin Murray: “We are saying that unsolicited email cannot be sent and there are no loopholes.”

Shorn of ‘ifs’ and ‘buts’, the Californian legislation is by far the most encompassing of all the anti-spam laws enacted by any of the other thirty-five US states to have taken similar action. It emulates that passed recently in the UK which also enforced an opt-in approach.

Junk email outbound from California to other states of the union is likewise banned, with a fine of $1,000 (€874; £607) for each transgressing message, to a limit of $1 million per campaign.

The bill’s supporters claim it outpunches similar laws in that it also allows individuals the right to file private lawsuits – thereby encouraging legal action even if state prosecutors are reluctant to act.

Marketers, however, are less enthused at California Dreaming. The bill is misguided, they say, doing little to corral the murky spammers whose unsavoury messages hail from outside the state, even outside the Union.

Knee-jerked Direct Marketing Association president H Robert Wientzen: “The people sending the latest penis enlargement schemes are not going to pay attention to this. This is a group of politicians trying to cash in on a popular issue and will create more confusion and problems than solutions.”

A more measured response came from Chicago Law School professor David E Sorkin who opined: “I don't think that states have much business regulating the internet. If you can't tell where the recipient of an email is, and still have to comply with different state regulations, it is a burden on interstate commerce.”

Nonetheless, Sorkin believes the new law would probably survive a claim that it violated the First Amendment, as courts have held that commercial speech deserves lesser protection than private speech.

Data sourced from: New York Times; additional content by WARC staff