State Supreme Court Upholds Washington's Anti-Spam Law

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The Washington state Supreme Court yesterday reversed a lower court's decision and upheld the constitutionality of the state's anti-spam law.

The unanimous decision involved a lawsuit filed by the state attorney general's office in October 1998. The suit accused an Oregon man, Jason Heckel, and his company, Natural Instincts, of violating the state's anti-spam law by sending unsolicited e-mail promoting a booklet on how to profit from the Internet by sending bulk e-mail.

The Washington anti-spam law, enacted in June 1998, was one of the first in the United States to regulate spam. The law prohibits sending e-mail with false headers and subject lines.

The lawsuit against Heckel alleged that he used misleading subject lines to entice recipients to open the e-mail and to send him $40 by postal mail. It also alleged that he posted an invalid return address, preventing people from opting out of future correspondence.

Heckel used a commercially available bulk e-mail program to harvest addresses from various online sources and to send e-mail through free accounts he set up with Juno Online Services, routing the messages through a dozen different domain names to hide his tracks, according to the court's decision. It noted that he also maintained a personal Juno account but did not send any spam through that account.

The text of Heckel's message was a lengthy sales pitch that included testimonials from purchasers and an order form that the recipient could download and print, according to the decision.

The court noted that Heckel racked up 30 to 50 sales a month.

The Washington attorney general's office said it met with Heckel in June 1998 and advised him he was violating the state's anti-spam law. The attorney general sued Heckel after receiving 20 complaints that Heckel had not stopped spamming.

In March 1999, King County Superior Court granted Heckel's motion to dismiss the case on the grounds that the state's law was unconstitutional because it violated the commerce clause of the U.S. Constitution. The attorney general appealed the decision directly to the state Supreme Court, which overturned the lower court's ruling.

The commerce clause prohibits states from enacting laws that unduly burden interstate commerce. Heckel argued that Washington's anti-spam law constituted an undue burden by forcing him to filter out e-mail being sent to addresses in Washington.

Now that the anti-spam law has been upheld, the case will go to trial in King County Superior Court to determine whether Heckel violated the law. No trial date has been set.


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