Mitchell N. Roth
mroth@williamsmullen.com

As appeared in e-Connections newsletter, a publication of the American Teleservices Association.

So, you think the state and federal governments are maniacally regulating the teleservices industry, while turning a blind eye on other forms of direct marketing? Have no fear: State and federal governments are aggressively expanding their stranglehold on direct marketers. This time, email marketers are in their sightlines.

Case in point: California’s recently enacted restrictions on unsolicited commercial email advertisements which was signed by Governor Davis, albeit in the midst of the recall campaign, on September 23, 2003 (S.B. 186 2003). Without a doubt, this legislation is the most restrictive anti-spam email enacted in the country to date. Among the activity restricted is the transmission of email advertisements to an email address ordinarily accessed from a computer located in California, or to an address assigned to a California resident. The statute exempts advertisements to individuals who have specifically requested to receive such advertisements, or who has previously purchased the advertised product or service.

I certainly do not profess to be a technological genius, but I know of no possible way to determine whether email sent to a particular address is ordinarily accessed in any one state. Nor, am I aware of any existing methodology to determine whether an email address is assigned to a resident of any particular state. Not trusting my own troglodytic instincts, I conferred with my nerdy intellectual property and technology law partners down the hall. They, too, are unaware of any such methodology. In fact, is that not the beauty of email in the first place? It can be completely anonymous. Apparently, California legislators are beginning to re-think the practicality of this legislation. According to rumors emanating from Sacramento, legislators are already considering amending it.

Of course, what would direct marketing legislation be without the Congress’ involvement. Earlier this month, the U.S. Senate passed its version of the “CAN-SPAM Act of 2003” (S 877). In addition to restricting the transmission of unsolicited email advertisements, this bill also prohibits the use of false or misleading information in the “from” and/or “subject” fields and, you know what’s coming, the creation of a “Do-Not-Email Registry” which even Tim Muris has stated is a bad idea.

So, it appears that state and federal regulators were just getting warmed-up when they aggressively pursued telemarketing. They are now warmed-up and ready to pursue eamailers. So, give your friendly email marketers a great big hug when you see them next and let them know that you feel their pain.