Academic journal article Defense Counsel Journal

A Case for National E-Mail Regulation: State UCE Statutes Have Infirmities

Academic journal article Defense Counsel Journal

A Case for National E-Mail Regulation: State UCE Statutes Have Infirmities

Article excerpt

No matter how you test state UCE statutes, they are ineffective to stop spam and many are invalid under the dormant commerce clause

BY April of this year, 30 states had enacted statutes to combat the growing number of unsolicited commercial e-mails (UCE), better known by the term "spam." A list of the statutes appears in the box on page 361.

Unfortunately, insofar as UCE statutes provide a cause of action for individuals, they do not deter those who send the most bothersome barrage of (usually sexually explicit) unwanted e-mail because the majority of those senders are virtually impossible to locate or are judgment proof, or both. Individual plaintiffs, as opposed to state attorneys general or Internet service providers simply do not have the resources to combat the real problem.1 Thus, these statutes are seldom effective.2

Because the worst offenders generally are unreachable, UCE statutes are used primarily against reputable companies-Internet service providers and telecom companies-that, typically unknowingly, violate them. One disturbing trend is for plaintiffs' attorneys to send a settlement letter along with a complaint when a company with sufficiently deep pockets arguably violates the statute, knowing that most companies would rather settle for a few thousand dollars than incur the costs of answering.3 How to defend against this?

HOW TO CHALLENGE

The most (cost) effective defense against this practice, aside from amending the UCE statute to make it less useful to this type of plaintiffs' attorney or pushing through federal legislation that pre-empts the statute,4 is to persuade a court to strike down the statute on constitutional grounds. Because UCE statutes seek to regulate commercial e-mails, one obvious avenue of attack is the "dormant commerce clause" of the U.S. Constitution.5 This specific constitutional challenge makes, or at least ought to make, sense.

The dormant commerce clause is the name given to what courts take to be the "negative implication of the commerce clause."6 This implication is that states lack the power to regulate interstate commerce because Congress possesses it. The doctrine, however, rests on a fiction-the dormant commerce clause cannot simply forbid states to regulate whatever the federal government could regulate under the commerce clause because Congress's power (since the New Deal anyway) is so expansive that this would leave states effectively powerless. An independent test, not simply a negative implication, is necessary to determine when states have overstepped commerce clause boundaries.

Consistent with this, the U.S. Supreme Court has "articulated a variety of tests in an attempt to describe the difference between those regulations that the Commerce Clause permits and those regulations that it prohibits."7 These tests include: (1) whether a state statute explicitly favors in-state over out-of-state economic interests (the "protectionist test");8 (2) whether a statute's practical effect is "to control conduct beyond the boundaries of the state" (the "extraterritorial effect test");9 (3) whether a sufficiently negative "effect would arise if not one, but many or every, state adopted similar[, but inconsistent,] legislation" ("the inconsistent regulation test");10 and (4) whether the benefit the state receives from the statute is clearly outweighed by the burden that it imposes on interstate commerce (the "undue burden test").11

Because UCE statutes do not typically or expressly discriminate openly against out-of-state interests, the protectionist test is not practical. Moreover, because in the UCE setting states are not "market participants," one must ignore that aspect of the dormant commerce clause doctrine.12 Thus, UCE statutes will be examined under only the last three tests.

STATING THE TESTS

The notion that UCE statutes violate the dormant commerce clause is straightforward and convincing.

A. …

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