Washington State's Highest Court Upholds Anti-Spam Law

The high court ruled that the only burden the law places on spammers is the requirement of truthfulness -- which in fact does not burden interstate commerce, but actually helps it by eliminating fraud.

"Consumers and businesses pay a heavy price in money and lost time because of those who use the Internet to distribute deceptive commercial mailings to people who never asked for them," Washington Attorney General Christine Gregoire said. "We are pleased the Supreme Court has issued this strong endorsement of the state's tough law to curb these practices."

In the lower court proceeding, King County Superior Court Judge Palmer Robinson ruled in March 2000 that Washington state's spam law, considered to be one of the strongest on the books, violated the Commerce Clause of the U.S. Constitution.

The lower court said the state law placed undue burdens on interstate business because it required companies sending unsolicited commercial e-mails (UCEs) to determine the state of residence for each spam recipient.

Case Moves Forward

Thursday's ruling came in a lawsuit initially filed by the state Attorney General's Office in October 1998 against Oregon resident Jason Heckel. The suit alleged that millions of spam e-mails sent by Heckel and his company, Natural Instincts, violated the state's anti-spam law.

Heckel allegedly used a misleading subject line -- "Did I get the right e-mail address?" -- to entice recipients to download and read his entire message. The suit also alleged that Heckel used an invalid return e-mail address, making it impossible for recipients to reply.

The Washington law bans UCEs that contain misleading information in the subject line, an invalid address or a disguised transmission path. Fines for violating the law range from US$100 to $1,000 per e-mail.

The Attorney General's Office said Heckel's case will now be sent back to the Superior Court for trial.

No Undue Burden

Although the Superior Court ruled that the law was unduly burdensome because it required Heckel to weed out Washington state residents, the Washington Supreme Court disagreed.

"The trial court could have appropriately considered the filtering requirement a burden only if Washington's statute had banned outright the sending of UCE messages to Washington residents," the Supreme Court wrote.

The court said that in finding the law "unduly burdensome," the trial court "apparently focused not on what spammers must do to comply with the Act, but on what they must do if they choose to use deceptive subject lines or to falsify elements in the transmission path."

Dividing Lines

The high court pointed out that to send deceptive spam without violating the law, spammers would have to weed out Washington residents by "contacting the registrant of the domain name contained in the recipient's e-mail address."

According to the high court, spammers would not incur costs if they complied with the law; they would only incur costs for not complying with it.