The following is the text of a letter sent to the Solicitor General by the 9th Circuit.
I'm not sure who is alleging a constitutional infirmity in CAN-SPAM here. It could be Virtumundo challenging the law itself or it could be Gordon challenging the standing requirement that limits standing to sue to prosecutors and ISPs. Since the docket doesn't yet let us see the briefs in the case, it's hard to say.
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Dear Ms. Spadoni:
In accordance with Federal Rule of Appellate Procedure 44 and 28 U.S.C. § 2403(a), we are certifying to the Attorney General and informing the Solicitor General of a constitutional challenge to a federal statute raised in a pending appeal in which the United States is not a party.
The case is Gordon v. Virtumundo, Inc., Ninth Circuit docket number 07-35487. The federal statute at issue is the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, 15 U.S.C. §§ 7701-7713.