SCN: Anti-spam e-mail suit tossed out

[Andrew Higgins]

       http://www.seattletimes.com/news/local/html98/altspam_20000314.html
          
          Anti-spam e-mail suit tossed out 
          
          by Peter Lewis
          Seattle Times technology reporter 
          
          In the war of words over unsolicited commercial e-mail, better
          known as spam, an Oregon man has won a victory over the state
          of Washington.
          
          But the battle may not be over, as the attorney general ponders
          an appeal.
          
          The victory came when King County Superior Court Judge Palmer
          Robinson dismissed a case in which the state charged Jason
          Heckel with violating Washington's anti-spam law. Robinson said
          the law, generally regarded as the nation's toughest, violates
          the interstate-commerce clause of the U.S. Constitution.
          
          The case against Heckel was the first filed by the state under
          the 1998 law. The statute was enacted after Internet providers
          and consumers complained to the Attorney General's Office about
          the time and money they spent dealing with unsolicited
          commercial e-mail.
          
          The judge held that the statute is "unduly restrictive and
          burdensome" and places a burden on businesses that outweighs
          its benefits to consumers. The case will not stand as a binding
          precedent unless it is upheld on appeal. The state has until
          April 10 to decide whether to appeal.
          
          The ruling, handed down Friday, is likely to cause a stir in
          the Internet community, where spam frequently is a hot-button
          issue. Opponents contend spam costs computer users and
          Internet-service providers time and money, taking up computer
          memory and forcing users to spend time deleting it from their
          PCs.
          
          Not surprisingly, Heckel's lawyer cheered the ruling, while the
          Attorney General's Office lamented it. A constitutional-law
          expert at the University of Washington School of Law called the
          ruling "highly questionable."
          
          The law bans spam that has misleading information in the
          e-mail's subject line, disguises the path it took across the
          Internet or contains an invalid reply address.
          
          The suit alleged that Heckel, doing business as Natural
          Instincts, committed all three sins when he sent spam to
          Washington residents. Heckel, in his mid-20s, sent between
          100,000 and 1 million pieces of unsolicited e-mail per week,
          the suit asserted. It also alleged that each month he sold 30
          to 50 of his "How to Profit From the Internet" packages,
          charging $39.95 each.
          
          In addition to civil penalties of $2,000 for each violation,
          the complaint sought attorney's fees and a permanent injunction
          barring Heckel from sending spam.
          
          However, Robinson not only dismissed the case against Heckel
          "with prejudice" - meaning it cannot be refiled - but signed an
          order allowing Heckel to present a bill for recovery of his
          costs and legal fees.
          
          Robinson was unavailable for comment yesterday.
          
          Reached in Salem, Ore., Heckel's father, Allen Heckel, said his
          son would have no comment. The younger Heckel now works for a
          computer service and support company in Salem and designs,
          maintains and markets Web sites for individuals and businesses,
          according to court papers.
          
          Dale Crandall, a Salem lawyer who represents Heckel, called the
          judge's ruling correct "in modern-commerce clause analysis." He
          expressed confidence it would hold up on appeal.
          
          He did not deny that his client had sent the 17 pieces of
          unsolicited e-mail the state specifically documented, but he
          resisted characterizing them as spam.
          
          "That's just a derogatory term that's on the other side of the
          table," he said. "Direct-marketing people don't like to hear
          the paper mail called `junk mail.' "
          
          Regina Cullen, an assistant attorney general who argued the
          case, maintained the state should have the right - subject to
          limitations imposed by the Constitution - to redress harm done
          to consumers by out-of-state businesses.
          
          She disagreed with the judge's finding that the state was
          asking too much of businesses by having them check an
          electronic registry of e-mail addresses to determine whether
          intended e-mail recipients were Washington residents and
          therefore protected by the law.
          
          Stewart Jay, a UW professor of constitutional law, said there
          is "no reason why the commerce clause would prevent states from
          regulating spam. ... This is one of those cases where a person
          is accused of using an instrumentality, i.e. the Internet, to
          engage in activities the state has determined are harmful to
          the consumer."
          
          That is not terribly different, Jay said, than "any of a wide
          variety of consumer-protection measures that can apply to
          people out of state," including telephone-solicitation scams
          run out of a boiler room and junk-fax operations. He called the
          ruling "highly questionable."
          
          Jim Kendall, president of the Washington Association of
          Internet Service Providers, a trade group that works with the
          Attorney General's Office to maintain the electronic registry,
          was likewise critical of the judge's ruling.
          
          "If the judge is going to say we're putting too much of a
          burden on someone who is acting unethically, I have to scratch
          my head and say, `Excuse me? That doesn't make sense to me,' "
          Kendall said.
          
          Several other lawsuits have been filed under the state's
          anti-spam statute, including another by the state in behalf of
          consumers. In that case, the defendant, Sam Khuri, owner of
          Benchmark Print Supply in Atlanta, signed a consent decree,
          agreeing to quit sending spam, according to Cullen.
          
          Seattle lawyer Brady Johnson has filed four lawsuits under the
          law, two of which remain active. He said yesterday that in none
          of the cases has the commerce clause raised by Heckel come up.
          Johnson said he hopes the state appeals Robinson's ruling.

          Copyright © 2000 The Seattle Times Company

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