Moot Court Tries Anti-Spam Laws

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February 20, 1998 (12:00 AM EST)

By John Borland,

AUSTIN, Texas -- A moot court trying a fictional spammer found Friday that the unusual geography of cyberspace makes it difficult for states to bar unsolicited e-mail.

The scenario played out before three Texas judges and a law professor at the Computers, Freedom and Privacy conference in Austin, Texas, pitted a spamming company against a state with anti-spam legislation. Since e-mail addresses are not tied to geographic locations, it quickly became clear that the state had limited rights to ban the cyberspace activity.

This moot court highlighted some legal challenges that could face the real life anti-spam measures being debated in state legislatures this year.

"These issues are the classic difficulties presented by the Internet," said moderator Andrew Grosso, a Washington, D.C., attorney. The case's hypothetical anti-spam statute barred any individual or company from sending unsolicited commercial e-mail to residents of the state of "Runnymeade." While this is much stronger than the only state law now on the books, similar measures have been proposed by lawmakers in California and several other states.

Attorneys for the fictitious spamming company argued that the absolute ban violated their free speech rights, and that the state had no jurisdiction to sue the out-of-state company in its courts. But the most persuasive argument, legal observers said afterward, was the idea that a ban on sending spam to one state effectively barred the company from sending e-mail to anybody in the U.S. Unlike a telephone number's area code, an e-mail address is not tied to any one place, the company's attorneys noted, and so any e-mail sent out could potentially be going to the state where it had been outlawed.

A state law that could force a company to stop doing business in other states would be very suspect in courts, said University of Miami law professor Michael Froomkin. "This creates a big problem," he said. "This is a real issue at the state level."

But this concern would only apply to absolute prohibitions on spam, Froomkin noted. Proposed state laws that would only require advertisers to label their solicitations would not necessarily force a company out of business, he added. "That's not a great burden," he said.

No state as yet has passed a law as restrictive as that debated at the conference. Nevada passed an anti-spam bill last year that makes exceptions for mail labeled as advertisements, and which contains a way for recipients to take themselves off advertisers' mailing lists.

The moot court was led by two Texas Supreme Court justices, a judge from the state's highest criminal court, and Froomkin. The four appeared sympathetic to the spammer's interstate commerce argument, but they made no decision in the case.