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The "Colorado Junk Email Law"
toodrunk2f_ck writes: "News has been slow to trickle out about the new "Colorado Junk Email Law" (HB00-1309). Signed by Gov. Owen on June 6, the law is about to become active. CNET has this article on it and the legislative synopsis is here. Basically, the law allows receivers of unmarked "junk email" to sue senders for a $10 civil penalty per piece plus court costs. It seems unclear, though, how enforcement will work and what effects it may have. Imagine the workload on the courts if every person receiving spam were to sue over it. It will be interesting to see whether Colorado sets a precedent for other states to follow with this law." Hemos posted an article about the law before it was signed; that article is unfortunately no longer available, but the comments are.
If you as a lawyer can defend spam, then the same defense can be used to defend sending junk mail postage due. In fact, since it was a lawyer who invented spam in the first place, I think I'll return the favor by creating 'snail spam'. How about we geeks start sending "Hot teen sex at 1600 Pennsylvania Avenue" postage due letters to any law firm defending email spam? Would those of you in the law get the point then?
Of course the US mail won't deliver such mail, or would it? If defense of spam is successful, I can't see any reason why the postal service couldn't be forced to collect the postage from the recipients. They could send each person a bill based on the amount of junk mail they receive each month. In fact, I think I'll apply for a method of doing business patent, and collect a royalty from everyone who uses my business plan.
The law, 100's of millions of lines of code, not one line of which has ever been tested to see if it works
...must provide the originating e-mail address of the spam
...can't forge third party domain names in the spam unless permission is granted
...can't forge header information
...must use "ADV" in the subject line of the spam (for easy filtering)
...must provide an opt-out mechanism
...can't spam people who've requested to be removed
What makes this bill work is that spammers can't forge header information, which would work right in with forging domain names in the spam. A lot of sites out there (nowhere.com, localhost.com, etc.) have fallen victim to spammers forging their domain names, so this will hopefully save the hapless sysadmins from a lot of headaches. Also, it does say that spammers must honor remove requests. But think about how many spammers there are out there. It's almost like the dilemna of getting off a telemarketer's list. You may have gotten off Company A's list, but Company A may have sold your number to Company B, and you're back to square one. Besides, it's been proven in the past that spammers use their remove lists for spam runs, since the addresses are obviously valid. The requiring of "ADV" in the subject line of the spam works, to a degree. While you can filter out the spam based on that information on the user or system level, it doesn't stop the spam.
And there's a lot that doesn't make this bill worth a lot. For one, requiring that the spam provide a valid From: address is just wasting space on the paper the bill is printed on. The spammer could use a Hotmail throwaway and get away with it, since they could argue that it's a valid address. The opt-out mechanism doesn't work either. It's been a fact that a lot of spammers out there use remove lists for spamming. And while the spammers must obey your request, it falls into the telemarketing scenario above. This bill also doesn't prohibit using an open server as a third party relay (AKA relay rape), which is a big problem, since some servers have crashed due to the load of spam being sent through it.
Basically, as long as your spam has a valid From: address, "ADV" in the subject line, an opt-out mechanism, and doesn't forge header information or domain names, you can spam all you want. And that really doesn't do a whole hell of a lot of good IMHO.
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The real Raunchola isn't cool enough to have any imposters
The actual Washington Court decision is here, though it doesn't say a lot. The theory is the the Commerce Clause of the Constitution grants primary authority to regulate interstate commerce to the federal government, not the states. If a state law unduly burdens interstate commerce, then, no matter how noble the intent may be, it is unconstitutional. This is what is known as a so-called dormant commerce clause issue, the "typical" commerce clause issue being one where there is a challenge to whether a Congressional enactment is justified under Congress' (quite broad, but not unlimited) commerce power.
I don't like spam, but as a practicing lawyer, I think the Washington case was decided correctly, and that the U.S. Supremes would agree if ever called upon to visit the issue.
Of course, federal legislation would not address the First Amendment issue, but that issue won't arise until either there is federal legislation or the Colorado courts disagree with the Washingtom court on the dormant commerce clause issue.
And even if federal legislation is passed, there remains the outstanding First Amendment questions. Soon to be seen at an appellate court near you . . .
The whole point of hating spam is not because it's annoying, sure it's annoying, but the bigger picture is someone is paying, usually the email account holder, for these guys to advertise to you. You pay for your internet account, or you pay by seeing banner ads, the ISP pays by using their bandwidth, hard drive space, etc. Spam costs the recipiants money, there is no First Amendment protection which allows you to advertise to someone while costing them money at the same time.
-- iCEBaLM
By the way, I've heard good arguments why none of those things would help at all. The quick list:
Saying that they can't forge the header is a nice gesture, but it's only a small improvement. Many spammers broadcast from ISP accounts that are shut down within hours anyway.
The problem with subject tags is that it doesn't eliminate the cost-shifting. Spammers still get a free ride and everybody else pays to deliver and process their junk.
The problem with opt-out lists is that you still have to receive it. Spammers get one free bite. It wouldn't be *too* bad if it were just that, but all they have to do is "change" their "company" and they get another free bite. Repeat indefinitely. In general, opt-out is not a good solution.
And all this is assuming that they actually honor the law at all.
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"I have a good idea why it's hard to verify programs. They're usually wrong." --Manuel Blum, FOCS 94
This legislation conclusively proves two things:
At first glance, this bill seems too stupid for words--let's be serious. Is there anybody who has been online for, oh, say two weeks that hasn't figured out that on the Internet there are no state lines? And if you've been through law school (which, presumably, most Colorado legislators have been) you have heard something at some time about restrictions on Interstate Commerce? This bill is one colossal exercise in taxpayer-funded flamebait, destined to be overturned by the first judge who reads it. Right?
Except...
Politicians should generally be kept away from computers and other things they might hurt themselves with--but that doesn't mean they don't have a nascent form of Neanderthal cunning. Remember--this is an election year. Periodically politicians have to demonstrate that they are fighting, tooth and nail, for their constituents. That they are defending the weak, empowering the powerless, and valiantly struggling to defeat the wicked schemes and machinations of [if democrat==1 {big business, big oil, Republicans} else {labor unions, environmental wackos, Democrats}]. Americans may revere national leaders who are proven veterans of decades of foreign policy--but everybody votes for the guy who "fights". Nobody gets re-elected because he or she is regarded as a serious legal scholar with a remarkable ability to grasp the subtle nuances of extremely complex litigation.
So a politician must periodically demonstrate that he is a fighter--pretty much regardless of who he fights, or whether he ever wins. At the same time, most politicians really do want to achieve something or other, and they realize that in order to be effective in a group of 100, 200, or 435 Type A personalities you have to have cooperation. Being a "fighter" and working cooperatively would seem mutually exclusive, no?
What happens if they stage a fight, but only one fighter shows up?
Yup. What many politicians have discovered is a way to "fight" that actually doesn't include an opponent. A phenomenon in recent years has been a steady succession of legislation by one "fighting" politico or another designed to prevent the crisis du jour. Cocaine vendors, pornographers, child predators, and now email spammers all have one thing in common: none of them is willing to appear in a public hearing to oppose any legislation. There isn't a Recividist Pedophiles Industry Association wining and dining legislators, or an Alternative Neuro-Pharmacology Association staging demonstrations for government-subsidized blow. Everybody, Republican and Democrat alike, can "fight" email spam with the sure and certain conviction that nobody, anywhere, will oppose them. They all get to print "co-sponsored the Colorado Anti-Junk-Email Law" on their campaign brochures, and they look like heroes.
The fact that the Colorado Anti-Junk-Email Law is totally unenforceable, absolutely unconstitutional, and guaranteed to be overturned within minutes of getting litigated doesn't mean anything. These politicians may not be that bright--but they're not completely stupid. They know perfectly well that this law is going to get tossed in the hopper by the first judge to see it. And they know that nobody yet has put "...and 47% of my opponent's legislation was overturned within minutes of getting litigated." on a campaign brochure. The practice won't stop until candidates start running ads pointing out how much tax money is wasted by incumbents writing frivilous legislation in order to look like "fighters".
This is an election year. The Colorado Anti-Junk-Email Law is an election year gimmick. Don't be fooled into thinking it is anything more--at the very best it is a waste of tax money.
Dear Sir or Madam: Do you hate someone? I mean deep-down, gut-churning, all-consuming, roast-in-the-fires-of-hell hatred? Then the all-new Revengenator® is for you! Now, with just the push of a button, you can spew tens of thousands of forged email messages to Colorado residents, all in your target's name! Imagine their surprise when they're hit with thousands of lawsuits for millions of dollars! Your dreams of that all-consuming, sword-of-justice, scorched-earth payback is here, for the low-low price of just $49.95! The Revengenator® : now, it's personal.
But the bill also allows that customer's Internet service provider to collect hundreds or thousands of bad messages sent through its main computers and sue the mailer for $10 on each one, providing the incentive of millions of dollars in potential damages.
Now this could be very damaging to a company. It's good to see that ISPs are not being left out of this bill. Good work, Colorado!
-Frijoles-
If I were a lawyer in colorado right now I would definatly be filming my "Get any spam lately? then you can cash in!" commercials. Instead of having people with neck braces and crutches I would have "ravaged by spam" computer systems that are covered with scortch marks and dents. Muwhahaahha! that'll show 'em!
Buying a Dell computer is equivalent to dropping the soap in a prison shower.
It is about the court costs. It can cost quite a bit for court costs, and that provides a means that people aren't going to be making money off of getting spam (such as if it were a $500 fine), but they still get dinged pretty badly, when 50 people suddenly sue, and they have to pay their court costs and the 50 people's... that could effectively stop all SPAM.
However, lawyers will be on this like flies on honey. The best profit margin that a lawyer can have is on a class action suit, and this has to be one of the easiest ones for them to find claimants. Lawyers will make a bit of money, and if we're really lucky they'll litigate the spammers into non-existence.
Man, I can't wait to see the first spammers who's gonna get hammered by Judge Judy... ;-)
It may well be that only federal legislation can resolve this problem. Washington State's anti-spam legislation was recently held unconstitutional on the ground that states may not regulate the flow of spam, in that doing so is unduly restrictive of interstate commerce in violation of Article I, Section 8 of the Constitution.
While another court may have a different view, there is precedent that seems indistinguishable in the present case.
And even if federal legislation is passed, there remains the outstanding First Amendment questions. Soon to be seen at an appellate court near you . . .