E-Mail Marketing - Regulating E-mail Marketing

In June 2001, Washington's anti-spam law was upheld by that state's Supreme Court. The law had been challenged as placing an undue burden on interstate commerce. However, the state's high court ruled that the only burden the law placed on spammers was the requirement of truthfulness. Washington's law was designed to prevent e-mailers from using the Internet to distribute deceptive commercial messages. It bans unsolicited commercial e-mails from containing misleading information in the subject line, an invalid return address, and a disguised transmission path. The law allows for fines from $100 to $1,000 per e-mail.

As of mid-2001 spam was regulated by a patchwork of state laws, some of which were more effective than others. Bills to regulate spam were pending in both the U.S. House of Representatives and the U.S. Senate that would require unsolicited commercial e-mail messages to be clearly labeled as such, include a valid return e-mail address, and give consumers a way to opt-out of receiving future mailings. The proposed federal laws also would allow the Federal Trade Commission (FTC) to fine violators. State attorneys general would be allowed to take legal action against spammers on behalf of citizens.

The Coalition Against Unsolicited Commercial E-Mail (CAUCE), an organization that lobbies for federal anti-spam legislation, found that state laws generally were ineffective at stopping spam. CAUCE noted that states must avoid violating the interstate commerce clause of the U.S. Constitution, which prevents states from placing an undue burden on interstate commerce. Generally, the federal position on anti-spam legislation has been that state laws would put an undue burden on interstate commerce and thus be a violation of the U.S. Constitution. Marketers certainly would have difficulty complying with 50 different state laws, as compared to a single federal standard. According to E-Commerce Times, even the strongest anti-spam legislation would only require that e-mails be clearly marked and have opt-out information readily available.

The Direct Marketing Association (DMA) supports anti-spam laws that crack down on false and misleading commercial e-mail messages and e-mails that fail to give consumers a way to opt-out of future mailings. However, the DMA noted that legitimate e-mail marketers should not be categorized as spammers, especially when they provide consumers with a way to opt-out of future mailings. Other obstacles to effective anti-spam regulation included a lack of resources to sue spammers. Under the proposed federal legislation, individual consumers would not be able to sue spammers. Instead, they would have to rely on government agencies or Internet service providers (ISPs) to take legal action. That in turn would likely overload law enforcement agencies that did not have the resources to handle a large volume of anti-spam cases.