Spam Strikes Back

Do marketers have the right to flood the e-mail boxes of unsuspecting Internet users with unwanted e-mail , otherwise known as spam? One Washington state judge has effectively said yes -- and has sparked an instant debate about the constitutionality of laws that limit the use of spam.

Last Friday, King County Superior Court Judge Palmer Robinson threw out a case filed by the Washington Attorney General's office against an Oregon man, Jason Heckel, who was accused of spamming Washington residents.

Judge Rules Anti-Spam Law Unconstitutional

In his ruling, Robinson held that the state's tough anti-spamming law violated the interstate commerce clause of the U.S. Constitution. Spam proponents have also argued that limiting spam violates the Constitutional protection of free speech, but Robinson did not address this argument.

The Washington law, one of the toughest in the United States, bans commercial e-mail with misleading information in the subject line, an invalid address, or a disguised transmission path. Fines for violating the law can range from $100 to $1,000 (US$) per e-mail.

Robinson ruled that the law was "unduly restrictive and burdensome" because it would require Heckel to determine the state where each e-mail recipient resided. To add insult to injury, Robinson signed an order that would allow Heckel to recover his legal costs and bills.

The ruling, incidentally, followed the same logic that the Supreme Court used to make it illegal for states to require that merchants collect sales tax for interstate commerce. In that case, the Supreme Court said that the proliferation of thousands of different tax rates made it burdensome on a merchant to keep track of them.

While Heckel and his lawyers are declaring victory, Internet experts and consumers alike are wondering what the ruling really means.

The Big Question: Is the Ruling Valid?

Many legal and Internet experts are convinced that the ruling is flawed. In an interview with the E-Commerce Times, Alan Schwartz, who co-authored the book "Stopping Spam" with Simson Garfinkel, said, "Spam should not constitute interstate commerce, as no commercial transaction has occurred between the spammer and the recipient -- by definition!"

Ian Oxman, president of ChooseYourMail.com, also questioned the judge's position. He said, "The judge ruled that it was burdensome for the spammer to comply. I don't understand why it's better to place that burden on the consumer or the ISP." One of the primary arguments used by the anti-spam faction is that spam, unlike traditional junk mail, requires recipients and their ISPs to bear its financial burden.

The Washington Attorney General's Office, which also disagreed with the ruling, has until April 10th to file an appeal.

Legislate or Self Regulate?

The ruling brings to the forefront the question about which entity should pass anti-spam laws -- individual states or the federal government. A federal law, for example, would resolve the issue of whether a state law unduly restricts interstate commerce.

Oxman said, "This ruling screams the need for federal legislation." He added that, "Each state is imposing different laws, many of which conflict."

By contrast, Schwartz believes that legislation should be done at the state level. He said, "I believe this ruling will be overturned on appeal, and so I'd encourage states to continue to enact laws like Washington's, or, better, laws that extend the prohibition on junk faxing to junk e-mail."

While four federal laws have been proposed that would limit the use of spam, it is hard to determine the prospects for any of them.

For example, the powerful Direct Marketing Association has said it is not opposed to legislation limiting the use of spam, but the organization believes that the Internet community is capable of policing itself.

Jerry Cerasale, DMA's senior vice president of government affairs, told a U.S. House Telecommunications subcommittee meeting in November, "The current efforts of industry and innovations in technology render any immediate legislation unnecessary."

The DMA has created an opt-out service that allows consumers to register their e-mail address and request that no unsolicited e-mail be sent to them. However, the list is used by companies that plan to send e-mail to people who have agreed to receive unsolicited messages via opt-in e-mail -- not by spammers.

Will Spam Explode?

While the ruling is undoubtedly encouraging to spammers, it does not open the floodgates to a new round of spamming. ISPs nationwide still make it illegal for their customers to engage in spam.

Indeed, an elaborate war against spam takes place daily on the Internet as ISPs try to filter out the addresses of known spammers, who, in turn, create a succession of new addresses.