Appeals court steps on spam

A California appeals court Wednesday upheld the state's anti-spam law, ruling that it does not violate a clause of the U.S. Constitution.

California's law "does not discriminate against or directly regulate or control interstate commerce," the court wrote in its opinion. "Therefore, (the law) does not violate the commerce clause if it serves a legitimate local public interest and if the burden it imposes on interstate commerce is not excessive when viewed in light of its local benefits."

Congress has yet to pass federal legislation governing commercial e-mail, so consumers are forced to seek protection under state laws. Although this week's California court decision is a win for anti-spam advocates and consumers, it's not necessarily the last word on the legitimacy of state laws prohibiting unwanted commercial e-mail.

California's anti-spam law requires unsolicited messages to include a viable return address or a toll-free phone number that recipients can use to tell the sender to stop sending documents. The statute also requires unsolicited e-mail to include "ADV:," for advertisement, in the subject line of the message--or in cases where the advertisements relate to adult material, "ADV:ADLT." Violating the law is a misdemeanor.

Although such requirements are designed to help recipients keep unwanted e-mail from their in-boxes, state laws governing spam may cause complications for people doing business on the Internet. Owen Seitel, a partner at the law firm Idell Berman & Seitel, which is not involved in the case, said that as more states fight junk e-mail, Web-based businesses will have to comply with a "patchwork of laws and ordinances which are going to thwart the growth of the Internet."

For instance, Seitel said that if each state required different e-mail headers, senders would have to comply with 50 styles, making it "virtually impossible to do business."

The appeals court decision "is not the end," Seitel said. "Basically, this decision could be obliterated if the U.S. Congress passes legislation in this area that's going to override any state statute in this area. But until that happens, and if you are sending e-mail in the State of California, this is the law."

Consumer advocates applauded the California decision, which follows a recent victory in Washington state. In October, the Supreme Court refused to review a constitutional challenge to a tough Washington law regarding junk e-mail. Anti-spam advocates said the outcome of the Supreme Court decision paved the way for consumers to fight junk e-mail at the state level in the absence of federal anti-spam laws.

"We're very happy that the California law was upheld," said John Mozena, vice president of the Coalition Against Unsolicited Commercial E-mail, a consumer advocacy group working to promote legislation that bans spam. "There is no legitimate reason for a legitimate advertiser to be forging contact information and hiding their identity and doing all the things that the California law prohibits."

The California case stems from a 1999 filing in which a state resident, Mark Ferguson, sued two Palo Alto, Calif.-based businesses. Ferguson alleged that Friendfinders and Conru Interactive sent him and others unsolicited e-mail advertisements that were deceptive, misleading and in violation of the state's law.

In June 2000, a San Francisco Superior Court judge ruled that California's anti-spam law is unconstitutional and violates the commerce clause of the U.S. Constitution by placing inconsistent restrictions on interstate use of the Internet. Wednesday's appeals court ruling reversed that decision; the case now will return to the lower court.

Wednesday's ruling has "a long-term impact," said Timothy Walton, an Internet attorney for Pierce & Shearer, which represents Ferguson. "The fear of potentially expensive lawsuits will encourage those who market by e-mail to comply with California's law. If everybody complies with California's law, then it would be possible to filter unsolicited e-mail messages to your trash if you wanted to without having to open them."

Ira Rothken, the attorney for the defendants, could not be immediately reached for comment.