U.S. CAN-SPAM Act of 2003 & State Anti-Spam Laws:
In the case of Gordon v. Virtumundo, 575 F.3d 1040 (9th Cir. 2009), the United States Court of Appeals for the Ninth Circuit interpreted the CAN-SPAM Act's standing requirements for "internet access service" providers, and ruled on the preemption of claims under Washington State's Commercial Electronic Mail Act ("CEMA"). The court held that the plaintiff, James Gordon, lacked standing to bring a claim under the CAN-SPAM Act, and that his claims, based on deceptive email headers, were preempted by the CAN-SPAM Act. See Anti-Spam Litigation: Gordon v. Virtumundo.
State v. Heckel, 24 P.3d 404 (Wash. 2001) - Washington's Supreme Court, applying "dormant" Commerce Clause analysis, upheld the constitutionality of Washington's Commercial Electronic Mail Act ("CEMA"). This case is discussed further below.
State Consumer Protection Laws & Other Relevant Common-Law Frameworks:
In Gordon v. Virtumundo, the Ninth Circuit held that, in order to survive preemption under the CAN-SPAM Act, Washington's consumer protection statute - as applied to commercial emails - would have to be interpreted to prohibit only significantly ("materially") false or misleading header information or subject lines. Moreover, because an action brought under this statute is similar to a traditional tort action, the plaintiff would have to show a direct causal connection ("proximate causation") between the acts violating the law and actual damages suffered by the plaintiff.
State v. Heckel, 24 P.3d 404 (Wash. 2001) - Washington's Supreme Court, applying "dormant" Commerce Clause analysis, upheld the constitutionality of Washington's Commercial Electronic Mail Act ("CEMA"). The following aspects of the case are particularly important:
- The court determined that the interests of three groups are legitimately protected by CEMA: (1) internet service providers, (2) owners of domain names and email addresses, and (3) individual internet users. Internet service providers are protected from the economic harms that flow from the need to increase server capacity and personnel. Owners of domain names and email addresses are protected from the economic harms that can occur when their domain names and email addresses are used without permission. And individual internet users are protected from the "cost-shifting" involved in sorting and deleting junk emails.
- The court determined that the only burden imposed on inter-state commerce by Washington's CEMA is a "requirement of truthfulness," which is actually not a burden at all, since it enables commerce. Only a deceptive spammer (someone using deceptive subject lines or disguising an email's transmission path) would be forced to incur costs in filtering Washington residents out of its spam emails.
- The court determined that CEMA does not contribute to the inconsistent regulations among states that unconstitutionally burden inter-state commerce. The court noted that CEMA's "truthfulness" requirements are paralleled by other states that have enacted anti-spam laws, and found it "inconceivable" that any state would enact contrary laws (e.g. requiring false email subject lines). Moreover, the court noted that some inconsistency among states is permissible under the Commerce Clause, so long as the inconsistency does not result in compliance costs that are unduly excessive.
- The court determined that CEMA does not have unconstitutional "extraterritorial" effects on other states because it only applies to spam emails that are sent to Washington residents.
- The court distinguished American Libraries Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997), determining that a statute specifically targeting email does not have the same potential for extraterritorial effects as a statute targeting all internet activity, including website postings.