Re: California anti-spam law

On Tue, 29 Sep 1998, Christopher A. Mohr <chrismohr[_at_]sprintmail.com> wrote:
>
> Wouldn't state anti-spam legislation be a violation of the commerce
> clause?

That was put forward in one of the newspaper articles that discussed the legislation the day after it was signed. I personally don't see it, or at least, I think it needs a much more careful argument before I'd accept it.

If I recollect properly, there is no blanket prohibition on states enacting laws that regulate commerce, even interstate commerce, that flows into their state. There are restrictions, for example, when a state regulation interferes with a federal regulatory scheme, but I don't see that.

One point that was attempted to be made in the article I read was that the requirement that advertisements begin with "ADV:" in the subject line was unconstitutional on the ground that different states could come up with conflicting similar requirements, and it would be impossible to comply with all of them.[1] I don't buy that. It assumes that the spammer is required to use the same subject line on all copies of an email he sends out. That's simply not correct. The spammer could send multiple batches, and vary the subject line depending on the jurisdiction to which the particular batch is being sent. There will still be an issue of classifying the email addresses by jurisdiction, of course, but at least a good-faith attempt at that can be done based on domain name -- although that's not too effective for multistate ISPs such as AOL, etc.

[1] This seems to me to be basically an application of that case, whose name I don't recall, where one state forbid tractor-trailers with two trailers -- as a practical matter, if a driver had to comply with this regulation in one state, he'd have to do it in all others as well, because otherwise he'd be at the state border with two trailers, one cab, and no way to proceed further with both trailers. Because of this point, the Supreme Court found the regulation to be interference with interstate commerce, and therefore unconstitutional.

--
Terry Carroll       | "Duke Nukem's world is made up of aliens, radio-
Santa Clara, CA     | active slime and freezer weapons--clearly fantasies,
carroll[_at_]tjc.com     | even by Los Angeles standards." - Micro Star v.
Modell delendus est | Formgen, Inc., no. 96-56433 (9th Cir. Sep 11, 1998)