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Ethan Ackerman on zany state "check before you send" laws

Previous Politech messages:
http://www.politechbot.com/2005/06/29/michigan-laws-and/
http://www.politechbot.com/2005/06/28/brad-templeton-on/
http://www.politechbot.com/2005/06/27/mail-laws-spell/


-------- Original Message --------
Subject: Re: [Politech] Utah,	Michigan laws and problems with mailing 
lists continued [fs]
Date: Wed, 29 Jun 2005 13:38:49 -0400
From: Chris Beck <cbeck@pacanukeha.net>
Organization: None At All
To: Declan McCullagh <declan@well.com>, Eric Goldman <egoldman@gmail.com>
References: <42C22C28.1050001@well.com>

Rumour has it Declan McCullagh, on or about 29/06/2005 1:05 AM, whispered:

 > * there is some reason why the email "check-before-you-send" laws are OK
 > in the spam context but not the harmful-to-minor email context

Perhaps the fact that spam is unsolicited, harmful-to-minot is not 
necessarily.
  Tricky though.
--
Chris Beck  -  http://pacanukeha.blogspot.com
Opinions of bureaucrats do not create wrongs.

[I recall that solicited HTM material sent to an address on the list is 
still unlawful. --Declan]



-------- Original Message --------
Subject: RE: [Politech] Utah,Michigan laws and unsettled state of "check 
state before sending" laws [fs]
Date: Thu, 30 Jun 2005 00:58:54 -0400
From: Ethan Ackerman <eackerma@u.washington.edu>
Reply-To: <eackerma@u.washington.edu>
To: Declan McCullagh <declan@well.com>
CC: Eric Goldman <egoldman@gmail.com>

Greetings Declan,
Not 100% certain this isn't more legalese than Politech would benefit from,
so this may be just for you and Eric, but thought I might clarify the status
of "check before you send" email laws - which Eric erroneously (but with
good intentions:) suggests have been cleared of their (serious) commerce
clause infirmities.

WA's anti-spam law - which _wasn't_ "check-before-you-send" - was 
cleared ofd
some commerce clause problems - the WA supreme court found it wasn't a
violation of the commerce clause for WA's anti-spam law to require "truth in
subject line and headers."  That law requires a standard of actual
knowledge, or "should have known" that the recipient was a WA resident.
Such a "knowledge" standard is a good deal different than "affirmative duty
to check."  At the time of bill writing, there was a simultaneous push for a
registry, with automatic violations for senders spamming to those listed in
the registry, and this probably lead to the popular (but erroneous) belief
that WA had some kind of "must check" statute.

I think a state statute with a "must check" would face a harder challenge,
and I'm not aware of any cases upholding such a requirement.

As added points for WA, their supreme court (unlike California's uncritical
embrace of the similar, less precise CA statute) also realized there might
be commerce clause & jurisdiction problems as to spam sent to Washingtonians
checking email out-of-state, or to wholly non-Washington-touching email, but
based on the facts (continued forged header spamming to in-staters EVEN
AFTER receiving a letter from the AG saying "there's this law, you are
breaking it, these are WA state residents checking their email in WA, stop
now...") the Heckel case was a rather clear "knowing" in-state violation.

-Ethan Ackerman
(disclosure: helped write amicus adopted in WA v. Heckel)

Posted by Declan McCullagh on Jun 30, 2005 in category free-speech


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