Court kills key parts of bulk email law

The decision in Ferguson vs. Friendfinder marks the second time a state anti-spam law has been struck down. In March, Washington state's anti-spam law, one of the strongest in the country, was ruled unconstitutional. That case is on appeal.

San Francisco Superior Court Judge David Garcia found that the law violates the dormant Commerce Clause of the U.S. Consititution by placing inconsistent restrictions on interstate use of the Internet. The statute requires unsolicited email to include a viable return address, among other things. A second California anti-spam bill, which allows Internet service providers to sue spammers for unauthorized use of their equipment, is not affected by the ruling.

Dave Kramer, an attorney with Wilson Sonsini Goodrich & Rosati, said the law could escape the Commerce Clause exclusion because it requires ISPs to notify spammers in advance that its equipment is not to be tampered with. If spammers from outside California ignore such notification, they can nevertheless be held liable under the common law theory of trespass, he said.

The ruling is a blow to efforts to regulate spam by the states, which have taken the lead on the issue. Several federal anti-spam bills are under consideration in Congress, but none have been enacted.

"The interstate question is one that dogs the anti-spammers," said Jason Catlett, president of Junkbusters, an organization that supports efforts to control unsolicited bulk email. "Even in federal law there are free speech issues that need to be balanced."

Ira Rothken, who represents the defendant in the case, said the decision points to broader issues regarding Internet regulation.

"You can't legislate email rules state-by-state," he said.

Attorneys for the plaintiff from the law offices of John Fallett in San Francisco could not immediately be reached for comment.

David Sorkin, a law professor at the John Marshall Law School in Chicago, agreed that the Commerce Clause presents a serious constitutional problem for state regulation of the Internet. But he downplayed today's ruling as a bad sign for opponents of spam, who continue to wait for federal legislation on the issue.

"If the states can't regulate spam, so be it," he said. "It would be more significant if a court found that a state law violated the First Amendment. That could roll over into federal attempts to regulate spam."

Catlett said a number of bills are making their way through Congress to address the issue.

Of those, he said the Unsolicited Electronic Mail Act may stand the greatest chance of success.

Written and co-sponsored by Rep. Heather Wilson, R-N.M., the bill would have the Federal Trade Commission police spam violations, which would carry penalties of $500 each but would not exceed $50,000.

The bill, which was approved by a Commerce subcommittee in March with several revisions from the original, requires unsolicited commercial email messages to include a valid return address and requires spammers to honor requests to be removed from distribution lists.

The bill would allow ISPs to post a notification refusing to accept spam and to sue spammers who violate their publicized policy. In addition, ISPs would not be required to transmit spam without compensation from the sender. ISPs that agree to accept spam for a fee, however, must allow their customers to join an opt-out list, to be maintained by the ISP.

"The bill strikes a good strong balance on the constitutional issues," Catlett said.

News.com's Paul Festa contributed to this report.