http://www.abanet.org/journal/ereport/s27spam.html

Friday,
September 27, 2002

SPAMMER FRIED

Washington State
Wins Case Against Prolific E-mailer

BY MOLLY McDONOUGH

Internet users who hate unsolicited e-mail
advertising–everything from tax advice to "hot raunchy hardcore gay
action"–are celebrating a Washington state court ruling this month against
a prolific spammer.

King County Superior Court Judge Douglas North granted summary judgment on Sept.
13 and agreed with the state that Oregon businessman Jason Heckel
violated Washington’s anti-spam law. The decision in this closely watched test
case averts a civil trial that had been set for Monday.

John Mozena, vice president of the Coalition Against Unsolicited Commercial E-mail, applauded the ruling.
"This is the first time that just the sending of spam landed someone in
hot water," Mozena says. "That’s an
important precedent to set."

A precedent? Yes. Important?
The true test will be whether the decision dissuades spammers from sending out
bulk, unsolicited e-mail, Mozena concedes.

This case is the first to test Washington’s
anti-spam law. And while other cases throughout the country have targeted the
content of e-mail messages, Mozena says, "This
is the first time a spammer has been taken to task by a government agency for
the mere act of spamming."

The court will decide this fall whether to
sanction Heckel for up to $500 per violation. Heckel plans to appeal regardless of the final judgment entered.

"What we’re talking about here is a
struggle between state control of the Internet and federal control of the
Internet," says Heckel’s lawyer, Dale L.
Crandall of Salem, Ore. Crandall argues that Washington’s law overreaches in
punishing an out-of-state resident whose activities are legal in Oregon.

Washington’s 1998 Unsolicited Commercial Electronic Mail Act doesn’t ban
unsolicited e-mail outright, but the statute makes it illegal to send state
residents e-mail with deceptive subject lines or fake return addresses. It also
is illegal there to use a third party’s domain name without permission.

Heckel is alleged to have violated the first two
provisions by sending millions of e-mails with the subject line "Did I get
the right email address?" to get recipients to open and read his messages.
The state also accused Heckel of using an invalid
return e-mail address, which made it impossible for recipients to directly
respond to his messages.

Heckel, through his company Natural Instincts, sent the
e-mails advertising the sale of digital business advice titled, "How to
Profit from the Internet." Crandall says Heckel
distributed the e-mails widely and didn’t specifically target Washington
residents. He claims Washington’s law places an unconstitutional burden on
interstate commerce.

Crandall further argues that, given the
boundless nature of the Internet, it ought to be up to the federal government
to regulate e-mail activity.

Heckel initially prevailed with his commerce argument. But
last June, the Washington Supreme Court upheld the state’s anti-spam law and
remanded the case for trial. State v. Heckel,
24 P.3d 404 (June 7, 2001). This January, the California Court of Appeal upheld
that state’s unsolicited e-mail law, citing the Heckel
case in Ferguson v. Friendfinders, 115
Cal.Rptr.2d 258.

While acknowledging that Judge North had no choice but to rule in the state’s
favor considering the supreme court’s decision,
Crandall seems resolved to many more appeals. "Ultimately, the federal
courts will decide," Crandall says.

Mozena also would like to see federal involvement.

There are currently 26 states with some form
of anti-spam legislation, though Mozena says only the
laws in Washington, California and Virginia have any teeth. The laws in most
other states "don’t have any real value to customers," he says.

For example, in Nevada, the first state to
enact anti-spam legislation, the onus is on the consumer to ask to be removed
from a spammer’s list. Senders of bulk e-mail also must label their e-mails as
advertisements and provide opt-out instructions. Other states, such as
Wisconsin, have statutes that only require the addition of "adult
advertisement" language if the message contains obscene or sexually
explicit material.

Although pleased with the outcome of the Heckel case, Mozena’s group is
unsatisfied. "Our concern is that absent a federal law, we’re going to end
up with 50 different state laws."

Meanwhile, the Washington attorney general’s
office has been empowered by the state supreme court to continue using the
anti-spam law to pursue offenders. The office already has sued another alleged
spammer, this one from Minneapolis. Several others are under investigation.

Senior Assistant Attorney General Owen F. Clarke Jr. says there is more to
come. "We hope this sends a message to Internet e-mail spammers anywhere
that Washington has this law and that the state is going to enforce this
law."

©2002 ABA Journal