California Spam Case Appealed to State's Highest Court

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A business owner accused of sending spam is appealing to the California Supreme Court an appellate court decision that upheld the state's anti-spam law as constitutional.

The petition filed this week with the Supreme Court of California argues that the appeals court "took a circuitous route" to reach its decision upholding the anti-spam law in January.

California law requires the sender of unsolicited commercial e-mail to start messages with a subject line that begins "ADV:" to flag that it is an advertisement. It also requires that the message include a working return e-mail address or toll-free telephone number that recipients can contact to be taken off the mailing list.

California resident Mark Ferguson sued two Palo Alto, CA-based businesses, Friendfinder Inc. and Conru Interactive Inc., alleging that they violated the law by sending him spam. The case was halted after a lower court in June 2000 declared the law unconstitutional. But that ruling was overturned in January, allowing the case to proceed.

Attorneys for Friendfinder and Conru Interactive -- both companies run by Andrew Conru - said that the latest appelate court's decision would have effects far beyond California.

The appellate court overturned the June 2000 ruling by San Francisco Superior Court that the state's law was unconstitutional because it interfered with interstate commerce. The Superior Court ruled, in effect, that the Internet is largely immune from state regulation.

The appellate court said that "protecting a state's citizens from economic damage caused by deceptive scam constitutes a legitimate local purpose."

Conru's lawyers argued that the effect of the California law would ultimately regulate interstate commerce. They said that it's nearly impossible to send e-mail from anywhere to a California resident without it passing through the servers of an Internet service provider in the state.

"In its decision, the Court of Appeals set up and knocked down straw-target rationales that are not involved in the case," Conru's petition said. "The problem with [California's anti-spam law] is ... that it fails to incorporate necessary geographical limitations and [regulates] commerce taking place entirely outside California."

Conru's lawyers hope that by having California's law declared unconstitutional, other state courts will follow suit and prompt lawmakers to pass federal legislation, eliminating multiple state and local regulations.

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