Anti-spam fight falls to the states

On Monday, the high court declined to hear a constitutional challenge to a tough Washington state anti-spam law, one of the nation's first measures that sets standards for junk e-mailers and levies stiff fines for violators. Enacted in 1998, the law bans "deceptive" e-mail and has drawn immediate attention as a test case for the role of states in regulating the Internet.

The court's refusal to review the case does not offer a legal ruling on the merits of the law. But with little hope for federal anti-spam legislation any time soon, the decision means beleaguered consumers can fight junk e-mail at the state level, anti-spam advocates say.

"Through this decision, the Supreme Court said it's voting for the status quo," said Tom Geller, who runs the SpamCom Foundation. "It's saying at the highest federal level, that the state laws are valid and enforceable."

Monday's ruling allows a trial to go forward in Seattle's King County Superior Court in a lawsuit against Jason Heckel and his company, Natural Instincts. The suit, filed by the state Attorney General Christine Gregoire in 1998, charges that Heckel sent millions of commercial e-mails with misleading subject lines, including "Did I get the right e-mail address?"

The Supreme Court's decision comes as proposed federal legislation governing commercial e-mail has fallen flat in Congress in recent years. As frustration mounts over the daily onslaught of spam, consumers are increasingly looking toward state laws for protection. Some states have responded with laws that are even tougher than the state of Washington's.

In defense, marketers such as Heckel are seeking recourse by challenging state laws on grounds that they violate the interstate commerce clause of the U.S. Constitution, which prevents states from enacting laws that interfere with business across state lines.

Those arguments have had some success. Last year, for example, a California state 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 June by the Washington Supreme Court, which unanimously backed the constitutionality of that state's anti-spam statute. The law prevents the transmission of e-mail communications that include a false header, misleading subject line or a fraudulent originating address.

The Washington Supreme Court ruled that the law does not violate the commerce clause because "the requirement of an advertiser be truthful does not burden commerce as much as it facilitates it by eliminating fraud and deception." The defendants also say that the law violated the First Amendment, but the court rejected those arguments as well.

Heckel faces penalties of up to $2,000 per violation, or per deceptive e-mail sent, which is subject to interpretation based on Washington law.

Defense attorneys for Heckel charge that Washington state's law is unconstitutional on the grounds that it restricts free speech under the First Amendment and that it restricts interstate commerce.

"Any regulation needs to come from the federal government," said Dale Crandall, a Salem, Ore.-based attorney representing Heckel. "We think the Internet needs to be treated like the oceans and coastlines and navigable waterways. The federal government has jurisdiction over the oceans, and we view the Internet to be similar."

Anti-spam advocates say that the U.S. Supreme Court's move is a boon for state spam laws and could pave the way for federal legislation, but not in the near future.

"The chances of a federal law aren't looking all that great," said Ray Everett-Church, a privacy consultant and anti-spam advocate. "But if Washington's statute gets upheld, states may decide that that's a good model. And a strong state statute could point the way for a successful federal statute, but that's a long way down the road."

Regina Cullen, assistant attorney general in Washington's Consumer Protection Division, said Monday's action is a win for consumers, who for now can count on state, as well as possible future, federal protection against 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 the need for federal laws governing spam. But I think there could be a two-pronged approach where we have complementary state and federal laws where all levels of government can work to protect consumers from Internet fraud."