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FOR IMMEDIATE RELEASE
June 07, 2001
State Supreme Court Upholds Washington's Anti-Spam Law


Olympia - June 7, 2001 - The Washington Supreme Court today unanimously upheld the constitutionality of the state's anti-spam e-mail law in the nation's first case involving a state law designed to protect Internet users from deceptive commercial e-mail.

"Consumers and businesses pay a heavy price in money and lost time because of those who use the Internet to distribute deceptive commercial mailings to people who never asked for them," Attorney General Christine Gregoire said. "We are pleased the Supreme Court has issued this strong endorsement of the state's tough law to curb these practices."

Today's decision involved a lawsuit filed by the Attorney General's Office on Oct. 22, 1998. The state accused an Oregon man, Jason Heckel, and his company, Natural Instincts, of violating the state's new anti-spam law by sending unsolicited commercial e-mail, or "spam," to millions of Internet users. The e-mails were aimed at selling a booklet titled, "How to Profit from the Internet."

Washington's law, which went into effect in June of 1998, was one of the first in the nation to regulate the sending of spam. The law prohibits sending unsolicited commercial e-mail that contains misleading information in its subject line, uses a third party's domain name without permission or misrepresents the message's point of origin.

The lawsuit alleged that Heckel used a misleading subject line that read, "Did I get the right e-mail address?" to entice recipients to download and read his entire message. The suit also alleged the defendant posted an invalid return e-mail address to which recipients were unable to respond.

In March 2000, King County Superior Court Judge Palmer Robinson dismissed the case against Heckel and his company on grounds the state law violated the Commerce Clause of the U.S. Constitution. The Attorney General's Office appealed that ruling directly to the state Supreme Court.

In its opinion today, the court found that "... the 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.' "

The case will now be remanded to the Superior Court for trial.

 


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BACKGROUND PAPER ON WASHINGTON SUPREME COURT CASE

CHALLENGING WASHINGTON'S ANTI-SPAM LAW

State v. Heckel (Jason), d/b/a Natural Instincts

In 1998, the Washington Legislature passed the "Unsolicited Commercial Electronic Mail Act," RCW 19.190.020, which prohibits unsolicited electronic mail that advertises consumer products with a false or misleading subject line or return address. Such e-mail is more commonly known as "spam."

The law addresses three consumer harms created by spam. First, recipients are the victims of a deceptive consumer practice because they pay for the Internet time and services that deliver the deceptive e-mail. Consumers waste their on-line time downloading deceptive mail, and false subject lines prevent them from making informed decisions on whether to delete messages. Recipients also are unable to determine accurate addresses in order to respond.

Second, persons whose addresses are misappropriated are harmed by receiving floods of responding e-mails nominally directed towards the original sender of the deceptive e-mail. The Legislature heard how a misappropriated e-mail return address shut down a legitimate electronic site due to persons responding by hitting "reply" and "send."

Finally, the consumer's Internet Service Provider (ISP) is harmed because mass e-mailings clog systems and cause overloads, down time, and costs associated with filtering deceptive e-mails.

Case Background

Jason Heckel is an Oregon resident who sent mass e-mails to addresses that he obtained from various sources. His messages invited recipients to send $40 by regular mail and he would send a booklet about "How to Profit from the Internet." In some cases, Heckel failed to send the 46-page booklet after consumers sent their money.

In June 1998, representatives of the Attorney General's Office met with Heckel to advise him of his violations of RCW 19.190.020. On October 22, 1998, the Attorney General's Office filed suit against Heckel and his company, Natural Instincts, after 20 subsequent complaints showed that he had continued to send e-mails with misleading subject lines and false return addresses.

On March 10, 1999, King County Superior Court Judge Palmer Robinson granted the defendant's motion to dismiss the case on grounds that the state's law violated the Commerce Clause of the U.S. Constitution. The Attorney General's Office appealed that decision directly to the Washington Supreme Court.

The Supreme Court heard oral argument in the case on March 20, 2001. The issue presented to the court was whether Washington's prohibition on commercial e-mail with deceptive subject lines and return addresses violated the dormant Commerce Clause.

Washington argued that the court's analysis of whether Washington's law violates the Commerce Clause should consider what it cost Heckel to comply with the law. The state argued that he would simply have to refrain from using misleading subject lines and return addresses.That burden on commerce is not "clearly excessive" in light of the local benefits of the law. In fact, Heckel has to alter the headers' return addresses to make them deceptive, because bulk email programs normally send out the actual return addresses that originate with the e-mails. Compliance with the law normally creates no burden on those who use accurate headers and subject lines.

Heckel argued that he cannot filter his mass e-mailings from reaching Washington recipients, and even if he did, an out-of-state e-mail address might be opened by a recipient temporarily in Washington. Accordingly, Heckel cannot comply with Washington law except making his mass e-mailings non-deceptive. Heckel argued that this creates an impermissible burden on interstate commerce because Washington law might affect conduct that occurs outside Washington.

What is the significance of the Supreme Court's decision?

The constitutionality of Washingon's anti-spam e-mail law has been upheld as a result of today's decision. As a result, the state will be able to continue to use this law to protect consumers.

What happens next?

The case will be remanded to King County Superior Court for trial.

 

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