New Developments in State Statutes Governing Unsolicited Commercial

In the last few weeks there have been significant developments regarding state statutes governing unsolicited commercial e-mail. As discussed below, a California court held provisions of that state’s statute unconstitutional. In Colorado, the legislature passed a bill that has requirements similar to the California statute. The statute becomes effective August 2, 2000. These developments represent the current struggle on the state level to regulate unsolicited commercial e-mail and privacy issues while recognizing the interstate use of the Internet.

California Statute Held Unconstitutional

A San Francisco Superior Court judge recently held that section 17538.4 of the California Business and Professions Code violates the dormant Commerce Clause of the U.S. Constitution by placing inconsistent restrictions on interstate use of the Internet. In general, section 17538.4 of the Business and Professions Code requires the sender to implement a toll-free telephone number or e-mail address the recipient can use to opt out of future e-mails and imposes disclosure requirements for the subject line and text of the e-mail.

The California legislature previously passed a separate provision that prohibits use of an electronic mail service provider’s equipment located in the state in violation of that service provider’s policy regarding unsolicited e-mail advertisements. The court’s ruling does not affect that provision.

In March, a Washington court held that state’s statute governing unsolicited commercial e-mail unconstitutional. That decision has been appealed.

Colorado Passes New Statute

The Colorado legislature recently passed the Colorado Junk EMail Law (“Act”) governing “unsolicited commercial e-mail messages” sent to Colorado residents. See 2000 Colo. H 1309 (to be codified at Colo. Rev. Stat. ' 6-2.5-101 to 6-2.5-105). The Act becomes effective August 2, 2000. The Act defines “unsolicited commercial e-mail message” as “an electronic mail message sent without the recipient’s expressed permission for the purpose of promoting real property, goods, or services for sale or lease.”

When distributing unsolicited commercial e-mail messages, the sender must:

• Disclose the actual point-of-origin e-mail address of the unsolicited commercial e-mail;
• Use the accurate e-mail transmission information or other routing information;
• Obtain any third party’s consent before using that third party’s Internet address or domain name for the purposes of transmitting unsolicited commercial e-mail;
• Use the exact characters “ADV:” as the first four characters in the subject line of an unsolicited commercial e-mail message. In addition to several other exemptions, this requirement does not apply to e-mail between an organization and its members or if the sender has a current or prior business relationship with the recipient. The Act defines “current or prior business relationship” to include relationships where the recipient has indicated a willingness to receive commercial e-mail messages from that sender.
• Provide a mechanism allowing recipients to easily and at no cost remove themselves from the sender’s e-mail address lists. It is a violation of the Act to send an unsolicited commercial e-mail to any person that has requested to be removed from the sender’s e-mail address lists.

The recipient of an unsolicited commercial e-mail message that violates the Act or an e-mail service provider whose facilities were used to transmit the message can file a civil action to recover actual damages, attorneys’ fees, costs, and/or a civil penalty in the amount of $10 for each e-mail in violation of the Act.