A new California law will go into effect on January 1, 2004, prohibiting "unsolicited commercial e-mail advertisement," defined as "promoting the lease, sale, rental, gift offer, or other disposition of any property, goods, services, or extension of credit."

The new law is an “opt-in” measure, meaning that an “advertiser” must obtain permission from every recipient in advance of sending an “unsolicited commercial e-mail advertisement” – unless the advertiser enjoys a “preexisting or current business relationship” with the recipient. The term “preexisting or current business relationship” is defined as where "the recipient has made an inquiry and has provided his or her e-mail address, or has made an application, purchase, or transaction, with or without consideration, regarding products or services offered by the advertiser." Even under the “preexisting relationship” exclusion, the "advertiser" (i.e., sender) has to provide an opt-out "toll-free telephone number or...an 'unsubscribe' e-mail" address.

The law pertains to any “person or entity” located in California, or located outside California as to any message sent to an email address in California. It appears that the burden of determining whether a recipient’s email address is in California falls on the sender. Therefore, this “California” law seems to affect all senders of “commercial e-mail advertisements” no matter where the sender is located.

Briefly, the penalties for violating the new law are “$1,000 per transmitted message up to $1,000,000 per incident, as defined, subject to reduction by a court for specified reasons.”

Rumor has it that the direct marketing association and others will challenge the new law in court. However, unless and until a court overturns it in whole or in part, as of the first of next year (2004) this will be the law of the State -- and in effect the law of the (entire) land as suggested above.