CALIFORNIA'S SPAM LAWS
California's two laws regulating the sending of unsolicited commercial e-mail went into effect January 1, 1999. They were enacted as amendments to previously existing sections of the Business and Professions Code, 17538.4 and 17538.45.
California now defines "unsolicited commercial e-mail" as e-mail that has the following characteristics:
Advertises the rent, sale or other offering of goods or services.
Is sent to a recipient with whom the sender has no previous business or personal relationship.
Is not sent at the request of the recipient, or with the recipient's consent.
Section 17538.4 is the more spam-friendly section. It applies if at least one of the following occurs:
- A company licensed to do business in California sends unsolicited commercial e-mail.
- A California resident receives an unsolicited commercial e-mail message.
The section permits the sending/receipt of such e-mail messages provided all the following criteria are met:
First: the sender must establish a valid toll-free phone number and/or e-mail address to which the recipient may call or write and ask to be removed from any further e-mailings.
Second: the sender must also inform the recipient, as the first text of the e-mail message (in a font just as large as that of the rest of the message), of the ability to be removed by contacting this phone number and/or e-mail address.
Third: the Subject header of such an e-mail message must contain, as its first four characters, "ADV:". (In the case of a solicitation which, by law, may only be viewed by persons 18 years or older, the first eight characters of the Subject header must read "ADV:ADLT").
Fourth: the sender must honor all remove requests submitted to the phone number and/or e-mail address listed in the message.
In the event one or more of the above criteria are violated by the sender of an unsolicited commercial e-mail message, only the California Attorney General has the right to bring a cause of action against the offending sender (Section 17536). In such a suit, the Attorney General may seek a maximum of $2500 per violation.
Section 17538.45, on the other hand, is very anti-spam. It permits an ISP (Internet Service Provider) to sue those who send unsolicited commercial e-mail either into or out from its network, provided the following criteria are met:
First: the ISP's equipment actually used to send, or which received, the
e-mail message(s) must be located within California.
Second: the ISP must be able to prove that the sender had actual notice (knew or should have known) before sending the e-mails that his or her messages would pass through the ISP's equipment located within California.
Third: the ISP must have in place a policy clearly stating that its equipment is
not to be used for the sending and/or collection of unsolicited commercial e-mail messages.
Fourth: the ISP must be able to prove that the sender had actual notice of this policy before sending the messages.
Interestingly, section 17538.45(f)(3)(B) strongly implies that ISP's may be able to satisfy this actual notice requirement (criteria Four) by embedding their "no spam" policies directly into the mail servers' "greeting banners" ... so that when an e-mail message is about to be sent into our out from a particular mail server, the sender cannot help but see this warning when connecting to the server to send the message. However, this subsection is not unequivocal about this.
Once all four criteria are met, the ISP is entitled to recover the
greater of the following amounts from the sender:
- $50 per message sent via its equipment (up to a maximum of $25,000 per day of abuse).
- The actual monetary loss suffered by the ISP as a result of the abuse.
