In the beginning…
It all began on March 30, 1998. First, EarthLink was awarded $2 million in an email “trespassing” case against the notorious Sanford Wallace and his company, Cyber Promotions. That same year, the states of Washington and California added new “anti-spam” bills to their dockets. These were the first hints of the coming tidal wave of anti-spam legislation that, five years later, has swamped the nation.
Today, according to spamlaws.com, 26 states have laws regulating spam on the books. Eight of these spam laws have the advertisement (“ADV”) labeling requirement. Let me guess — you forgot to add “ADV” to your subject line in your last acquisition campaign, right? Although most of those 26 states have so far not enforced these laws, there are very important precedents you should be aware of:
- Washington State v. Jason Heckel. The Washington State Supreme Court recently upheld the state law and charged that Heckel used fraudulent subject lines, fraudulently routed through open relays, and gave no valid return email address. The most important precedent in this case is that Heckel is based not in Washington but in Oregon. Watch out — you don’t have to be in-state to get in trouble.
- Verizon v. Additional Benefits. Following EarthLink’s victory in California, Verizon settled out of court last October with a Michigan-based company run by the infamous Alan Ralsky. Ralsky’s company clearly violated the Virginia state spam law (thanks in passing to AOL) and trespassed on the virtual grounds of Verizon’s network. This case exemplifies the enforcement of the Virginia law as well as using the interstate commerce clause against a company outside of Virginia.
- New York v. Monsterhut. Perhaps the most visible anti-spam enforcement, New York State’s Attorney General Eliot Spitzer enforced the state law against Monsterhut’s infamous Todd Pelow. (Why are all spam companies led by amazing characters such as Wallace, Heckel, Ralsky, and Pelow? There should be a comic book!). What’s unique is Monsterhut was accused of marketing to addresses it claimed were opt-in. Recipients said otherwise. The company was also charged with ignoring unsubscribe requests. Monsterhut is now history, but the case set a precedent for opt-in enforcement.
Some Strangeness in Utah
Thought much about email extortion lately? No? Then look in your mailbox for a letter from a law firm in Utah that demands money for spamming. All it takes is one Utah recipient to unsubscribe and not be removed from your list, and BAM! — you’re slammed for more than $500 in fines. You can choose to fight it out in a Utah court, but you may pay that same $500 in plane tickets just to make your court date (at least it’s ski season and may not be such a bad business trip!).
And it’s not just Utah. There’s a similar situation with Iowa’s state law and a case of extortion against a marketer who mistakenly didn’t immediately honor an unsubscribe request.
Why You Should Care
Who is in charge of your email acquisition programs, you or your lawyer? If it’s you, it may be time to rearrange things. Today’s acquisition programs can easily fall afoul of any one of today’s many email laws. You must keep a tight rein on your content, list management, and dispute resolution options. Verifying the sources of email rental list collection is no longer a wish. It’s a requirement.
Have you ever run your email acquisition list request against the Direct Marketing Association’s (DMA’s) email preference service suppression file? That list is a current example of what may be several do-not-email lists that will come into being. Multiple state legislatures are following Missouri’s lead by proposing similar suppression files for you to use when planning your acquisition campaigns.
Bear with a rundown of the political food chain. Presidents are often past governors. Governors endorse U.S. senators and representatives. U.S. senators and representatives campaign with state senators and representatives, and county mayors and sheriffs endorse state senators and representatives, with constituents voting for all. Each of these elected officials relies on the next to stay in office.
What’s my point? No elected representative wants to see his legislative efforts become irrelevant.
It’s highly doubtful any federal legislation will effectively pre-empt the plethora of state email laws. State legislators are too powerful to let that happen, and the federal bills under consideration are not so strongly worded as to create a “ceiling” that entirely pre-empts the state laws. At most, a “floor” requirement will be set up. Such a floor pre-emption will mean nothing when applied to the majority of stricter state email laws.
What Should You Do About This Nonsense?
- Don’t email anyone in Utah! (Just kidding.)
- Let the lawyers win when doing email acquisition or bring in a consultant to help mitigate any potential problems.
- Voice support for a federal ceiling bill that would pre-empt all state email laws.
- Pay attention to your state’s proposals, such as those for do-not-email lists. Contact local representatives and voice your concerns.
- Someone call Stan Lee and get a superhero to fight these spam characters!
Concerned? What do you think should be done about state email laws? Send your opinions or concerns.