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Michigan's Proposed Spam Law Called Toughest In U.S.
goats_in_boats writes "A new bill (PDF
or HTML)
was presented to the Governor
of Michigan that would require spam sent to residents of the State to be identified
as such. Highlights include the requirement that unsolicited email 'Include in
the e-mail subject line "ADV:" as the first 4 characters' and that 'a person who
violates this act is guilty of a misdemeanor punishable by imprisonment for not
more than 1 year or a fine of not more than $10,000.00, or both.' An article
in the Detroit Free Press calls the bill 'the most stringent anti-spam law in
the nation.'"
Now we just need a few more laws in different states, mandating a different set of initial 4 characters. SPM:, AVT:, etc... That would make it reasonably difficult to send nationwide SPAM with any guarantee of legality.
1. Enforcement: How will they actually prosecute (or even find) spammers that violate the law? I'd say there's a pretty good chance that there will be quite a few complaints. Assuming they're even able to backtrack and find the spammers who violate the law, a large number of violations could render this law unenforceable. It takes a good amount of time to review the violation, try to track down where the e-mail came from, etc. If they can't effectivly track down violators, the law won't do much.
2. Interstate/International commerce: While this should affect spammers in all states (as explained in another post), how will this hold up with international companies? Does this stop a company in the US from sending it's spam through a Canadian e-mail advertising agency? Does it apply to non-US companies at all? I'm far from a legal expert, so if you have any ideas please share them.
From Sec 3 of the Act:
"an e-mail service provider that the sender knew or should have known is located in this state or to an e-mail address that the sender knew or should have known is held by a resident of this state"
Requiring willful conduct or intent as this law does (in Sec 3, not Sec 4) puts a huge burden on the prosecution/plaintiff. With email addresses that have no physical correspondence to the receipt's real address, how is the spammer supposed to "know or should know" if the resident is in Michigan? Once this, nearly unprovable, element is part of the crime, the crime becomes nearly unenforceable. And, all the draconian requirements that got this law the press coverage may be ignored.
I guess the real battle is "can you assume that if a Domain Name is registered to a MI address that the email server is physically in MI?" After all, the Domain Name's mailing address may be a corporate headquarters and the server may be located in Florida.
Sec. 4 of the Act is a good old strict liability requirement (no intent or negligence needed to prove the crime). But, the requirements imposed by Sec. 4 aren't that odd, just standard "truth in advertising" applied to email.
Any law that says you must label spam (e.g., put ADV: in the subject) has two major flaws:
1) It only addresses half the problem, and it's not the important half. It does nothing to ease the burden on the mail servers that must transport the spammer's trash.
2) It sanctions what would otherwise be an illicit act.
As it is today, the act of spamming may or may not be illegal, but once a law is enacted that says "label it", the spam becomes sanctioned by law. Without that law, a hosting company can dump a user for spamming. With the law, it becomes more difficult because the spammer can say "I followed the law!"
IMHO: We're better off without laws like this.
--Bill
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