On Monday, the high court declined to hear a constitutional challenge to atough Washington state anti-spam law, one of the nation's first measuresthat sets standards for junk e-mailers and levies stiff fines forviolators. Enacted in 1998, the law bans "deceptive" e-mail and has drawnimmediate attention as a test case for the role of states in regulating theInternet.
The court's refusal to review the case does not offer a legal ruling on themerits of the law. But with little hope for federal anti-spam legislationany time soon, the decision means beleaguered consumers can fight junke-mail at the state level, anti-spam advocates say.
"Through this decision, the Supreme Court said it's voting for the statusquo," said Tom Geller, who runs the SpamCom Foundation. "It's saying at thehighest federal level, that the state laws are valid and enforceable."
Monday's ruling allows a trial to go forward in Seattle's King CountySuperior Court in a lawsuit against Jason Heckel and his company, NaturalInstincts. The suit, filed by the state Attorney General Christine Gregoirein 1998, charges that Heckel sent millions of commercial e-mails withmisleading subject lines, including "Did I get the right e-mail address?"
The Supreme Court's decision comes as proposed federal legislationgoverning commercial e-mail has fallen flat in Congress in recentyears. As frustration mounts over the daily onslaught of spam, consumersare increasingly looking toward state laws for protection. Some states haveresponded with laws that are even tougher than the state of Washington's.
In defense, marketers such as Heckel are seeking recourse by challengingstate laws on grounds that they violate the interstate commerce clause ofthe U.S. Constitution, which prevents states from enacting laws thatinterfere with business across state lines.
Those arguments have had some success. Last year, for example, a Californiastate judge found parts of California's anti-spam laws violated the commerce clause.
In contrast, the U.S. Supreme Court's decision lets stand a ruling in Juneby the Washington Supreme Court, which unanimously backed the constitutionality ofthat state's anti-spam statute. The law prevents the transmission of e-mailcommunications that include a false header, misleading subject line or afraudulent originating address.
The Washington Supreme Court ruled that the law does not violate thecommerce clause because "the requirement of an advertiser be truthful doesnot burden commerce as much as it facilitates it by eliminating fraud anddeception." The defendants also say that the law violated the FirstAmendment, but the court rejected those arguments as well.
Heckel faces penalties of up to $2,000 per violation, or per deceptivee-mail sent, which is subject to interpretation based on Washington law.
Defense attorneys for Heckel charge that Washington state's law isunconstitutional on the grounds that it restricts free speech under theFirst Amendment and that it restricts interstate commerce.
"Any regulation needs to come from the federal government," said DaleCrandall, a Salem, Ore.-based attorney representing Heckel. "We think theInternet needs to be treated like the oceans and coastlines and navigablewaterways. The federal government has jurisdiction over the oceans, and weview the Internet to be similar."
Anti-spam advocates say that the U.S. Supreme Court's move is a boon forstate spam laws and could pave the way for federal legislation, but not inthe near future.
"The chances of a federal law aren't looking all that great," said RayEverett-Church, a privacy consultant and anti-spam advocate. "But ifWashington's statute gets upheld, states may decide that that's a goodmodel. And a strong state statute could point the way for a successfulfederal statute, but that's a long way down the road."
Regina Cullen, assistant attorney general in Washington's ConsumerProtection Division, said Monday's action is a win for consumers, who fornow can count on state, as well as possible future, federal protectionagainst spam.
"To me, the states are the first line of defense in protecting consumers,"she said. "If the decision went the other way, that would point out theneed for federal laws governing spam. But I think there could bea two-pronged approach where we have complementary state and federal lawswhere all levels of government can work to protect consumers from Internetfraud."