The U.S. Supreme Court's refusal late last month to hear a challenge to Washington state's anti-spam law sets the stage for a trial next year and could spur other states to enact tough anti-spam laws.
Without comment, the court denied a petition by Jason Heckel to reconsider a ruling in June by the Washington Supreme Court against him. That ruling upheld the state's Consumer Protection Act, which prohibits the sending of commercial e-mail containing misleading subject line information or a bogus return address. Lawsuits brought by the state under the act can seek up to $2,000 per violation. Consumers and Internet service providers can sue for $500 and $1,000 per violation, respectively.
The Washington state Supreme Court ruling reversed a lower court's decision involving a lawsuit filed by the attorney general in 1998 accusing Heckel and his company, Natural Instincts, of spamming Washington residents. The lawsuit accused Heckel of sending unsolicited e-mail promoting a booklet on how to profit from the Internet by sending bulk e-mail.
Heckel apparently won the case after Washington's King County Superior Court in March 1999 granted a motion by Heckel to dismiss the case on the grounds that the state's law violated the commerce clause of the U.S. Constitution. The clause prohibits states from enacting laws that unduly burden interstate commerce. Heckel argued that the anti-spam law constituted an undue burden by forcing him to filter out e-mail being sent to addresses in Washington.
The law, enacted in June 1998, was one of the first in the United States to regulate spam. Now that the U.S. Supreme Court has declined to hear Heckel's appeal, the case will go to trial in King County Superior Court to determine whether Heckel violated the law.
“This decision lets the trial proceed, where we'll learn the extent to which the alleged behavior was actually deceptive,” said Ray Everett-Church, an attorney and co-founder of the Coalition Against Unsolicited E-Mail. “We'll probably see more appeals if the prosecution is successful and the high court may be happy to entertain another challenge when there's a more fully developed factual record.”
Everett-Church said other states likely will follow the trial closely.
“If the prosecution is successful,” he said, “it may well give more states the green light to enact laws similar to Washington's unique approach.”
The lawsuit against Heckel alleges that he used misleading subject lines to entice recipients to open the e-mail and to send him $39.95 by postal mail. It also charges 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 domain names to hide his tracks, according to the state Supreme Court's decision.
The court said 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. Heckel, the court said, racked up 30 to 50 sales each month.
Though industry observers are divided on what affect the Supreme Court's ruling will have on future spam legislation, they agree that since the high court did not rule on the merits of this case, it probably will not set precedent or influence federal legislation.
“All it means from a practical perspective is that the U.S. Supreme Court doesn't want to consider this particular case,” said David Sorkin, associate professor of law at The John Marshall Law School in Chicago. “It could be that the court is waiting for more lower court decisions on this issue and will take up the issue if and when there are conflicting precedents.”