Spam Wars: Making Spam Illegal in Utah

Much like the woman in the famous Monty Python skit, I don't like spam. Unlike her, I'm talking about the almost unstoppable flow of unsolicited email messages advertising new mortgages, "male enhancement" pills, online gaming and a host of other shady operations. This also includes spam from political parties and activists that don't seem to be able to respect opt-out requests or even acknowledge that by not having an opt-in mechanism, it violates the ToS/AUP for every Internet provider and mailing service.

There are existing federal laws governing unsolicited commercial email (also called UCE), but it requires expensive filings in federal court and lets non-commercial spam keep on flowing. For these reasons, spam is something that also needs to be addressed at the state level. Utah is one of the few states that no longer has an anti-spam law on the books, having repealed it in 2004. Well, I decided that it's time to get tough on spam again, so I grabbed the law and tweaked it to cover unsolicited bulk email (UBE).

13-45-101. Title.
This chapter is known as the "Unsolicited Commercial and Bulk Email Act."
13-45-102. Definitions.
As used in this chapter:

(1) "Commercial" means for the purpose of promoting the sale, lease, or exchange of goods, services, or real property.
(2) "Bulk" means not of a personal nature and/or not personally addressed to an individual or group of individuals.
(3) "Computer network" means two or more computers that are interconnected to exchange electronic messages, files, data, or other information.
(4) "Email" means an electronic message, file, data, or other information that is transmitted:
(a) between two or more computers, computer networks, or electronic terminals; or
(b) within a computer network.
(5) "Email address" means a destination, commonly expressed as a string of characters, to which e-mail may be sent or delivered.
(6) "Email service provider" means a person that:
(a) Is an intermediary in the transmission of email from the sender to the recipient; or
(b) Provides to end users of email service the ability to send and receive email.
(7) "Internet domain name" means a globally unique, hierarchal reference to an Internet host or service, assigned through centralized Internet authorities, comprising a series of character strings separated by periods, with the right-most string specifying the top of the hierarchy.
(8) "Unsolicited" means without the recipient's express permission, except as provided in Subsection (8)(a).
(a) A commercial or bulk email is not "unsolicited" if the sender has a preexisting business or personal relationship with the recipient.
13-45-103. Unsolicited commercial or bulk email — Requirements.
(1) Each person who sends or causes to be sent an unsolicited commercial email or an unsolicited bulk email through the intermediary of an email service provider located in the state or to an email address held by a resident of the state shall:
(a) Conspicuously state in the email the sender's:
(i) Legal name;
(ii) Correct street address; and
(iii) Valid Internet domain name;
(b) Provide for the recipient a convenient, no-cost mechanism to notify the sender not to send any future email to the recipient including:
(i) Return email to a valid, functioning return electronic address; and
(ii) A link to remove the recipient's email address from future mailings.
(2) A person who sends or causes to be sent an unsolicited commercial email or an unsolicited bulk email through the intermediary of an email service provider located in the state or to an email address held by a resident of the state may not:
(a) Use a third party's Internet domain name in identifying the point of origin or in stating the transmission path of the email without the third party's consent;
(b) Misrepresent any information in identifying the point of origin or the transmission path of the email; or
(c) Fail to include in the email the information necessary to identify the point of origin of the email.
(3) If the recipient of an unsolicited commercial email or an unsolicited bulk email notifies the sender that the recipient does not want to receive future commercial email or future bulk email, respectively, from the sender, the sender may not send that recipient a commercial email or a bulk email, as the case may be, either directly or through a subsidiary or affiliate.
13-45-104. Civil action for violation — Election on damages — Costs and attorney fees — Defense.
(1) For any violation of a provision of Section 13-45-103, an action may be brought by:
(a) A person who received the unsolicited commercial email or unsolicited bulk email with respect to which the violation under Section 13-45-103 occurred; or
(b) An email service provider through whose facilities the unsolicited commercial email or unsolicited bulk email was transmitted.
(2) In each action under Subsection (1):
(a) A recipient or email service provider may:
(i) Recover actual damages; or
(ii) Elect, in lieu of actual damages, to recover the lesser of:
(A) $500 per unsolicited commercial email or unsolicited bulk email; or
(B) $25,000 per day that the violation occurs; and
(b) Each prevailing recipient or email service provider shall be awarded costs and reasonable attorney fees.
(3) An email service provider does not violate Section 13-45-103 solely by being an intermediary between the sender and recipient in the transmission or an email that violates that section.
(4) The violation of Section 13-45-103 by an employee does not subject the employee's employer to liability under that section if the employee's violation of Section 13-45-103 is also a violation of an established policy of the employer that requires compliance with the requirements of Section 13-45-103.
(5) It is a defense to an action brought under this section that the unsolicited commercial email or unsolicited bulk email was transmitted accidentally. 

I'd appreciate any feedback on changes that you think this kind of law would need. Once I have it completed, I'm going to send a copy of it to each of our state senators and representatives to see if anyone is willing to sponsor it.

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15 Responses to Spam Wars: Making Spam Illegal in Utah

  1. Jeremy says:

    Jesse,

    Good luck with this. I’ll forward it to my legislators with a personal message requesting they take action on it.

    Nice work.

    It would be cool if Ric or someone else at Senate Site or elsewhere could provide a little historical information on why our anti-spam law was repealed in the first place.

  2. Mark Towner says:

    Jesse, so in addition to commercial bulk email that is trying to sell you something you also want to ban or suppress Political Speech correct? Email today is the hand bills of old. When someone handed you a political bill, you could accept it, or drop it on the ground and not read it. This is constitutional protected speech. Please try to find an elected official to run your legislation and I will be right there defending the constitution. Where are you taking your direction comrade Stalin?

    Please explain how your law would work in a political environment? Are you also saying that direct mail, radio commercials, TV commercials, or for that matter what the most prominent Political professor in Utah Dan Jones and his wife do for a living by calling people to do polling should be make illegal? Sounds a little 1984 don’t your think?

    Mark Towner

  3. Jesse says:

    The difference between email and every other method you just mentioned has to do with cost. When you do a direct mail campaign, you spend money on printing and postage. When you produce radio or TV ads, you spend money on production and airtime. When you do a phone survey, you’re paying for the phone lines and equipment needed to make the call. When you send unsolicited email, you put the vast majority of the cost on the recipient’s ISP and do not compensate them for it. In short, you are stealing someone else’s resources to get your message out instead of paying for them yourself.

    Because of the immense flow of junk email, ISPs and companies of all sizes spend considerable time, effort, and resources to try and cut it back or eliminate it. On my own server, I have to expend about 5% of the system resources just for spam-blocking products. This says nothing of the immense amount of time I spent ensuring I don’t have an open relay, setting up SPF records, talking to AOL on the phone to assure them that I don’t send bulk email, setting up qmail to reject messages to invalid accounts, etc. Commercial or not, bulk non-opt-in email wastes a ton of time and money, even for me personally.

    It’s not enough to simply complain to a mailing list provider and get the account suspended or terminated because of the blatant ToS/AUP violations. The bulk emailer just moves on to the next host. Then the next one. Then the next. The only way to send a message that wasting the resources of others in this fashion is unacceptable is to assign a penalty for doing so. ISPs and end users have the right to be compensated for the misuse of their resources.

    You can try putting whatever kind of “free speech” spin on it you like, but at the end of the day, you’re not the one footing the bills.

  4. Mark Towner says:

    Let me know what elected official plans on running your legislation, Chances are pretty good they used email to win their nomination or election.

    I realize you don’t like what I do (completely legal) but please explain how in your pefect world this would work?

    What’s you solution?

  5. Bill says:

    unfortunately the only solution that has worked for me is to not open any email that is from someone I don’t know. But If you are putting yourself in a category different form the average viagra pill pusher, you are just kidding yourself

  6. Jesse says:

    Mark, you could just make the whole thing go away by using acceptable mailing list practices. As it stands, you don’t use only opt-in addresses and there are numerous complaints all over the web that you don’t honor unsubscribe requests. Holding someone hostage to hear your “message” (which in this case consists almost entirely of copy/paste from news sources, a violation of copyright and nowhere near fair use) is simply not acceptable behavior. Imagine if I setup a loudspeaker outside of your house and wouldn’t turn it off even when you asked. Is the picture becoming clear yet?

    Has anyone else noticed the irony that Mr Free Speech over here has blocked comments from his blog for the last few weeks and uses the threat of lawsuits to try and make people hush up? It seems like your brand of free speech only applies when it’s something you like, eh?

    PS You’re nowhere near the sole cause of this proposed law. You just happen to be the catalyst. Don’t flatter yourself into thinking you’re getting to me personally. And that “I’m gonna copy’paste your contact page” stuff? You’ve already worn that into the ground. How long until you remove the post, just like with the others?

  7. andrew says:

    Mr. Towner sure has some strange bedfellows:

    http://politicalspyglass.blogspot.com/2007/07/rick-koerber-presents-producer.html

    Meet C. Rick Koerber:

    http://soswy.state.wy.us/securiti/o00-04a.htm

    I saw his face plastered all over the place along I-15 while I was in Utah and thought “that guy’s shady”. Indeed.

    Rick probably isn’t the only one to repackage Ayn Rand, neither are his attempts at shellacking a veneer of spirituality on an unrepentantly atheist philosophy (see Principle One here: http://www.freecapitalist.com/principle/principle_1.php ). It’s a shame that anyone would fall for such a rank huckster as Koerber, but then again from what I’ve read about Mr. Towner they’re two peas in a pod.

  8. andrew says:

    …Adding, I wonder how long it will be until the Utah securities people go after Franklin Squires:

    http://franklinsquires.com/manage_claudrkoerber.php

    From Rick’s bio:

    ‘…Koerber’s broad background also includes seminary teacher for The Church of Jesus Christ of Latter-day Saints, high school instructor and parliamentary/policy debate coach at Casper College in Wyoming’

    That wasn’t the only thing he was doing in Wyoming…

  9. andrew says:

    …Finally, a bit from the Better Business Bureau:

    http://www.saltlakecity.bbb.org/commonreport.html?bid=22008292

    I think you’re doing the Lord’s work in furthering laws against spam. Having worked in IT for a retailer who did mass mailings both before and after the national law took effect, I can say that it’s not onerous to comply. Actually, conversion rates go up when you maintain a “clean” mailing list, since the folks on the list have at least some interest in the product. I’d say that goes for political emails as well — having been on the receiving end of local LDS “activists” mass emails I can say that I will never, ever, be a Republican again for as long as I live.

  10. Jeremy says:

    I’m a little curious what the outcome of Mr. Towner’s blog post with your contact information was. Did you get any hate mail?

  11. Jesse says:

    Jeremy: Nada. Zip Zilch. Goose egg. I imagine that Jeff Bell and Ed Partridge had the same experience when he did it to them.

    Anyone want to start a pool on how long it’ll be until he takes it down?

  12. Jason The says:

    Mark Towner’s Political Spyglass.

    Post today, gone tomorrow.

    The Towner struggle for relevance continues.

    Posting a person’s personal information is not only childish, poor form, and disgusting, it’s a fairly ineffective method of debate screaming of desperation and a lack of ingenuity.

    When you’ve got nothing to say worth hearing, the cheap shots are your only option.

    I’ve never met an intelligent bully.

  13. Tom says:

    The comments have tangented from your original request: how to make this better:

    1. Include legislative “findings” section emphasizing that email unsolicited email marketing pushes costs to recipients.

    2. Define (emphasize) jurisdiction. Does the law require both sender and recipient to be in Utah, or simply that the sender does business in Utah, or… you get the idea.

    3. Require unsubscribe requests apply to all new unsolicited lists prepared by the entity, its properties, divisions, subsidiaries, future ventures,… language from the TCPA may help with this.

    4. You may wish to allow companies a week to propagate unsubscribe requests to sister lists.

    5. Explicitly state that not only is the sender liable, but the entity benefiting from the advertising (the company selling, not necessarily the company manufacturing) has primary liability (and may pursue action against the advertiser). .. again, the TCPA may help here. It’s often easier to track the benefiting company (through credit card transactions, for example) than the advertiser. Be careful with language in this part. For example, a political message was recently spammed out pretending to be from one organization, when it was actually sent by a person with a competing view.

  14. Jesse says:

    Thanks for the great input, Tom. This is the kind of stuff that I think the legislature would be looking for in order to help prevent the law of unintended consequences from taking hold. I imagine the lack of specificities is what contributed to the demise of the prior law.

  15. Pingback: Spam Wars: Revisions, Part 1 » CoolestFamilyEver

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