United States: To Spam Or Not To Spam

Across the country, legislators are taking notice of an issue that has been angering internet service providers ("ISPs") as well as their customers: the proliferation of unsolicited commercial email, also known as "spam." The widespread transmission of bulk electronic mail in general is taxing the ISPs' computer systems, and email users are growing increasingly resentful at the crowding of their inboxes with spam (not to mention the invasion of their privacy through the sale of their personal information that spam signifies).

As a result, one state after another has recently passed statutes regulating spam, and several ISPs have sued the spammers. Any company considering sending bulk commercial email must therefore be aware of the legal landscape surrounding the issue that has been taking shape over the last few years.

If you are considering the use of bulk commercial email, the safest course of action is to send only solicited emails. For example, you may wish to restrict your mailing list to individuals who have registered their email addresses on your web site and have checked a box indicating that they would like to be informed of new products or offers.

One risk to avoid is the use of "opt-in" lists purchased from other companies, which are often erroneously assumed to contain only valid information. The better choice is to obtain your own opt-ins, and in so doing, to make clear to consumers how their email addresses will be used. For example, in requesting consumers' email addresses, you would be better served indicating in close proximity to the request that you will be sending advertisements to any email address entered rather than burying that fact in the terms and conditions section of your web site.

Whether you send email that is solicited or unsolicited, there are some general guidelines that you would be wise to follow. First, all emails should indicate the correct routing address from which they were actually sent. Second, they should indicate clearly how the recipient may opt out of receiving any further emails from you. Delaware law, for example, explicitly provides, "All commercial electronic mail sent to any receiving address within the State shall have information to the recipient on how to unsubscribe or stop further receipt of commercial electronic mail from the sender." Finally, you should implement mechanisms to ensure that recipients who do opt out in fact do not receive any further emails from you.

If you decide to send unsolicited commercial email, you should be aware of the variety of regulations regarding spam that currently exist, which are constantly being supplemented by new legislation. Indeed, the U.S. House of Representatives has just passed a bill regulating spam. The proposed federal law requires that unsolicited commercial emails contain accurate routing information, as well as a valid, conspicuously displayed email address to which the recipient may reply to notify the sender not to send any more messages. Senders are explicitly required under the bill to honor such notification. To remedy any violation, the bill authorizes recipients and ISPs to recover $500 for each improper message.

Until the federal bill passes, however, unsolicited commercial emails will continue to be regulated by various state laws. Only one state - Delaware - prohibits unsolicited commercial email altogether. Fifteen other states regulate spam in one form or another, and many more states are currently considering such legislation.

Each state's statute contains different requirements regarding the unsolicited emails, and different liabilities for violation of the requirements. Many allow both email recipients and ISPs to recover up to $25,000 per day in damages from violators. Others allow email recipients to seek injunctive relief. Several also allow ISPs to block the transmission of spam reasonably believed to violate state law.

For example, the California statute mandates that all unsolicited commercial emails contain a subject line beginning with the characters "ADV:" and a body that begins with a statement, in the same font size as the majority of the text, informing the recipient of a toll-free telephone number or a valid sender-operated return email address that the recipient may call or email to terminate any further messages. California law also forbids the transmission of spam through an ISP in violation of that ISP's policy, and allows a damaged ISP to recover the greater of actual monetary loss or $50 per message, up to a maximum of $25,000 per day. Finally, the statute states that it does not limit the rights of an ISP to restrict access to or use of its system, implying that ISPs can block the transmission of spam violating their policies.

Although the law on spam is developing rapidly, you can minimize the risk in sending spam by taking certain steps. Though the safest way to eliminate risk is to check the laws of each state, you can lessen risk by complying with requirements that appear repeatedly in the statutes of different states. For example, numerous states have prohibited the transmission of unsolicited commercial email in violation of the policy of a particular ISP.

In addition, you should be aware that some ISPs use blocking software to prevent the transmission of spam. In Cyber Promotions, Inc. v. America Online, Inc., a federal court in Pennsylvania rejected a challenge to the use of such software, finding that it does not violate any First Amendment rights of an email sender.

It is important to note that state laws currently regulating spam may not survive constitutional challenge. A trial court in the State of Washington recently struck down that state's spam statute on the grounds that it impermissibly restricted constitutionally protected speech. Moreover, a number of state statutes provide that they shall become inoperative upon the enactment of federal law regulating spam. Thus, should a federal law be adopted, the number of regulations implicated by the transmission of spam could be greatly reduced.

Until such a time, however, the legal landscape surrounding spam remains complex, and anyone considering its use must be vigilant in monitoring the constant additions to that landscape by other states.