Minnesota Anti-Spam Law Takes Effect, Texas Introduces Bill

An anti-spam law took effect in Minnesota yesterday, and anti-spam legislation was introduced in the Texas Senate last week.

Both aim to address some of the most egregious tactics spammers use, such as forging headers and giving false return addresses, and both require ADV labeling in the subject lines of unsolicited commercial e-mail sent to state residents. However, many from both sides of the spam debate question what effect these laws will have.

“The spam problem isn't really a problem of people taking a half a second [when an ADV label is included] rather than a full second [when it's not] to realize a message is spam, and then being able to delete it,” said David Sorkin, an information technology expert from John Marshall Law School in Chicago. He said that states' anti-spam laws so far have attacked the symptoms and not the problem: the massive volume of spam.

Similar to anti-spam laws enacted in other states, Minnesota's bans using third parties' domain names to send e-mail without their permission, or otherwise misrepresenting the source of e-mail sent to state residents. It also bans the use of misleading subject lines.

Minnesota's law requires the use of “ADV” as the first three characters of the subject lines of unsolicited commercial e-mail. Moreover, pornographic e-mails sent to Minnesota residents must include “ADV-ADULT” in their subject lines.

The law also requires unsolicited commercial e-mail to include a valid toll-free number, a valid return address and an easy way for recipients to opt out of future mailings.

The law exempts e-mail to people who gave permission to receive commercial e-mail from the sender, e-mail from organizations using it to communicate exclusively with their members, and e-mail to people who have a pre-existing business or personal relationship with the sender.

Internet service providers and individuals in Minnesota now can sue marketers who use others' domain names without permission, false headers and/or misleading subject lines for $25 per e-mail up to $35,000 per day. ISPs and individuals also can sue marketers who violate Minnesota's “ADV” requirement for $10 per e-mail received up to $25,000 per day.

The bill proposed in the Texas Senate last week, SB 698, would ban using misleading subject lines and third parties' domains without permission. It would require “ADV:” to be the first four characters of the subject lines of unsolicited commercial e-mails, and “ADULT-ADVERTISEMENT” to lead the subject lines of pornographic e-mails. It would allow civil penalties of $10 for each e-mail sent in violation of the law up to $25,000 per day.

It also would require e-mailers to provide a functioning return e-mail address through which recipients can opt out, and for e-mailers to honor opt-out requests within 90 days. Texas' bill would ban selling addresses of people who opted out of commercial e-mailings.

Adult e-mail sent in violation of the law in Texas would be a Class B misdemeanor.

Minnesota is the 26th state to enact an anti-spam law of some sort. The increasingly complicated patchwork of state anti-spam laws led the Direct Marketing Association to come out in favor of federal anti-spam legislation in October that would include banning false headers.

Many states' anti-spam laws, Minnesota's included, include provisions for federal law to pre-empt them.

But while many anti-spammers agree with the DMA that federal legislation is needed to combat spam, the meeting of the minds ends there.

The DMA is ostensibly working to help rid the Internet of pyramid and get-rich-quick scheme spammers so the medium stays viable for its members. But some anti-spammers worry that if the fly-by-nights are pushed out of the market and spam's stigma disappears, the volume of unsolicited commercial e-mail from more legitimate marketers could become crippling.

“Once spam gets cleaned up, the floodgates are going to be opened,” Sorkin said. “We may be annoyed by porno spam and fraudulent spam, but it's making a lot of legitimate businesses afraid to use e-mail, and I think that, in effect, is a good thing.”

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