Spammer Fried - ABA Journal

http://www.aban= et.org/journal/ereport/s27spam.html

Friday, September 27, 2002

SPAMMER FRIED=
Washington St= ate Wins Case Against Prolific E-mailer

BY MOLLY McDONOUG= H

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 aga= inst 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 t= est 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 r= uling. "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 Washing= ton’s anti-spam law. And while other cases throughout the country have targeted t= he content of e-mail messages, Mozena says, "= This is the first time a spammer has been taken to task by a government agency f= or the mere act of spamming."

The court will decide this fall whethe= r to sanction Heckel for up to $500 per violation. <= span class=3DSpellE>Heckel plans to appeal regardless of the final judgme= nt 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 messa= ges. The state also accused Heckel of using an inval= id return e-mail address, which made it impossible for recipients to directly respond to his messages.

Heckel, through his company Natural Instincts, sent t= he 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 governme= nt 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 up= held 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 som= e form of anti-spam legislation, though Mozena says on= ly 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. <= /span>

For example, in Nevada, the first stat= e to enact anti-spam legislation, the onus is on the consumer to ask to be remov= ed 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 t= he Heckel case, Mozena’s gro= up 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 gen= eral’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 alle= ged 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 anywhe= re that Washington has this law and that the state is going to enforce this law."