"Unsubscribe" all you want — Utah law says those persistent e-mails aren't spam if you once signed up for them, the state's Court of Appeals has ruled.

The recent appeals ruling marks the end of what was the first court test of the state's 2002 law banning unsolicited e-mail, often called "spam." However, Sprint Communications attorney Justin Matkin said the ruling is moot in terms of future spam lawsuits because a new federal law pre-empts most of the states' laws. It does, however, affect the 300 or so pending lawsuits filed under the state law before the federal law went into effect Jan. 1.

The class-action suit was dismissed by 3rd District Judge Denise Lindberg in March 2003 because Terry Gillman, who brought the class-action suit against Sprint, had a "pre-existing relationship" with the sender, GroupLotto, the company that sent advertisements for Sprint's long-distance service.

The Utah law's language should be taken literally, Lindberg ruled — pre-existing means just that, and a business relationship doesn't have to be current to exempt a company from anti-spam suits, contrary to Gillman's arguments. The appeals court agreed.

Gillman had sent GroupLotto an "opt-out" request, and his name was removed from the list of e-mail addresses that received advertisements. However, one last advertising e-mail had been queued to be sent before the opt-out request, and Gillman sued after receiving that e-mail.

Matkin said that although "it was irrelevant that (Gillman) had subsequently opted out," Sprint's contract with GroupLotto required that e-mails not be sent to "people who don't want to get them" because the company only wants to reach customers who want to be reached.

Under the new federal law, passed in 2003 and informally known as the Can Spam Act, an initial unsolicited e-mail can be sent regardless of the presence or absence of any pre-existing relationship. However, an opt-out mechanism must be available, and companies must honor opt-out requests.

"The good thing about the federal law . . . is that it doesn't give private individuals the right to sue," Matkin said. Under the federal law, suits are filed by Internet service providers and similar entities that represent larger claims of grievances. "So we don't have the Gillmans of the world suing us for $10."

Utah's law allowed lawsuits to seek $10 per e-mail, up to $25,000 per day. So Gillman's claim was more symbolic, seeking to hold Sprint responsible rather than to reap a large financial gain. But Matkin said the result was a costly, time-consuming legal battle that Sprint is glad to put behind it.

"We've just been held hostage over this thing," he said.


E-mail: dsmeath@desnews.com