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Spammers Beware of Washington's Anti-spam Lawby Richard Keyt June 15, 2001 On June 7, 2001, the Washington Supreme Court, in the case of State of Washington vs. Jason Heckel, doing business as Natural Instincts, upheld the State of Washington's anti-spam law on an appeal from the Superior Court of King County. The State of Washington sued Oregon resident Jason Heckel alleging that his transmissions of email to Washington residents violated Washington's anti-spam law, Chapter 19.190 RCW (the "Act"). The trial court dismissed the lawsuit against Heckel on the basis that the Act violated the dormant Commerce Clause of the United States Constitution. The Washington Supreme Court found that the Act does not unduly burden interstate commerce. It reversed the trial court's dismissal of the State's suit, vacated an order for attorney fees, and remanded the matter to the trial court for trial. Under the Washington Act, a person may not send or assist in sending an email message from a computer located in Washington or to an electronic mail address that the sender knows, or has reason to know, is held by a Washington resident that: (a) uses a third party's internet domain name without permission of the third party, or otherwise misrepresents or obscures any information in identifying the point of origin or the transmission path of a commercial electronic mail message; or (b) contains false or misleading information in the subject line. A person who violates the law is liable for damages of $500 or actual damages, whichever is higher. Jason Heckel was a professional spammer. He created an on-line booklet entitled "How to Profit from the Internet" that described how to create an on-line promotional business, acquire free e-mail accounts, and obtain software for sending bulk e-mail. Heckel marketed his product by sending 100,000 to 1,000,000 unsolicited commercial e-mail ("UCE") messages per week. In June of 1998, the Washington State Attorney General's Consumer Protection Division received complaints from Washington residents who received Heckel's UCE. The complaints alleged that Heckel's UCE contained misleading subject lines and false transmission paths. The Consumer Protection Division sent Heckel a letter notifying him of the Act. On October 22, 1998, the State of Washington filed suit against Heckel alleging three causes of action. First, the State alleged that Heckel had violated RCW 19.190.020(1)(b) and Washington's Consumer Protection Act ("CPA"), by using false or misleading information in the subject line of his UCE. Heckel used one of two subject lines to introduce his solicitations: "Did I get the right e- mail address?" and "For your review--HANDS OFF!" The State claimed that the first subject line falsely suggested that an acquaintance of the recipient was trying to make contact and the second subject line invited the misperception that the message contained classified information for the particular recipient's review. The State's second cause of action alleged that Heckel had violated RCW 19.190.020(1)(a), and the CPA by misrepresenting information defining the transmission paths of his UCE. Heckel routed his UCE through at more than a dozen different domain names without receiving permission to do so from the registered owners of those names. For its third cause of action, the State alleged that Heckel had violated the CPA by failing to provide a correct e-mail return address to which bulk-mail recipients could respond. Heckel used at least a dozen different e-mail return addresses with the domain name "juno.com," but none of the Juno e-mail accounts was readily identifiable as Heckel's. The Juno user names that Heckel registered generally consisted of a name or a name plus a number such as "'marlin1374." Heckel's Juno e-mail accounts were canceled so rapidly, recipients of his UCE could not contact him by his email return address. The State claimed that Heckel's practice of rapidly cycling through e-mail addresses ensured that those addresses were useless to the recipients of his UCE. The trial court granted Heckel's motion for summary judgment on the basis that the Act violated the Commerce Clause of the United States Constitution (U.S. Const. art. I, sec. 8, cl. 3) and was "unduly restrictive and burdensome." The State appealed the decision to the Washington Supreme Court, which ruled on June 7, 2001, that the Act did not violate the Commerce Clause of the U.S. Constitution. In reaching its decision, the Supreme Court relied heavily on the fact that the Act simply requires people to not mislead UCE recipients. The court said, "[T]he only burden the Act places on spammers is the requirement of truthfulness, a requirement that does not burden commerce at all but actually 'facilitates it by eliminating fraud and deception.' Spammers must use an accurate, nonmisleading subject line, and they must not manipulate the transmission path to disguise the origin of their commercial messages." The Washington Supreme Court concluded its decision by stating: "The Act limits the harm that deceptive commercial e-mail causes Washington businesses and citizens. The Act prohibits e-mail solicitors from using misleading information in the subject line or transmission path of any commercial e-mail message sent to Washington residents or from a computer located in Washington. We find that the local benefits of the Act outweigh any conceivable burdens the Act places on those sending commercial e-mail messages. Consequently, we hold that the Act does not violate the dormant Commerce Clause of the United States Constitution." The Washington Supreme Court reversed the decision of the trial court and remanded the case to the trial court for trial. See State of Washington vs. Jason Heckel. See the text of Washington's anti-spam law, Chapter 19.190 RCW. About the AuthorRichard Keyt is a business and contracts attorney licensed to practice law in Arizona. Rick can be reached by telephone at 602-906-4953, ext. 101, email at rickkeyt@keytlaw.com and fax at 602-297-6890. Rick's internet, e-commerce and domain name law web site is KEYTLaw, located at www.keytlaw.com. Communicating with Richard Keyt via email or otherwise does not cause you to become a client or cause your communications to be confidential or subject to the attorney client privilege. |
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