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.

7 Comments

  • I believe that marketers have the right to e-mail whomever they choose and should not be limited. I think that spamming is no different than receiving unwanted mail from the post office or receiving unsolicited phone calls from telemarketers. Through the post office, you can send unsolicited mail to whomever you choose. The receiver must take this mail out of their mailbox, determine if it is something they want (often can’t tell unless opened), if unwanted, throw it into the garbage and make sure it gets to the curb so the garbage man can pick it up. In addition, the post office makes money on the postage they sold for the person to send this unsolicited mail. As far as the unsolicited phone calls go, you have to pay an addition fee for either caller ID or to have marketing/sales calls blocked from your phone. Both unwanted mail and phone calls are a waste of everyone’s time. UNTIL laws are passed to eliminate unsolicited Mail and Phone calls "SPAM," I do not think laws should be passed to stop or limit SPAM on the internet. With a simple click of your mouse button, the SPAM is gone.
    I welcome educated responses to my message. There may be other issues involved with SPAMMING that I AM unaware of and would welcome any additional information on the subject.

    • And what thinking process brought you to your conclusion? I see that you disagree with Judge Robinson, but you don’t say why. If you feel strongly enough to write, why not make at least one point to support your position?

      • Well, I don’t support unsolicited phone calls or snail mail, either, so it’s no surprise that we disagree. At least electronic and phone spam don’t harm the environment, but they are huge time drains.
        I’ve received so much e-mail spam recently that it has become difficult to easily weed out the e-mail I really *want* to read from the e-mail I want to delete as quickly as possible. I’ve accidentally sent quite a few "real" e-mails to the trash bin and then had to retrieve them. I’m sure there are a few that I inadvertently deleted, and those senders are no doubt wondering why I never responded.
        This worries me, but I’m not sure what I can do about it, especially if the accidentally deleted e-mail is from someone who’s never written to me before. How would I recognize the address? Or what if a familiar friend sent me an e-mail with a spam-like subject line? My first instinct is to hit the delete key. I hope I catch my errors often enough. I’m afraid I don’t. I’m extremely annoyed by spam.

        • For one, I believe that protecting free speech is more important that having to hit the delete button if you get something in your email you don’t like. It has been estimated that the anti-telemarketing laws cost our economy over $287 Million in 2001. With the advent of the Internet, our economy took off and not every business used email appropriately or responsibly. However, governmental legislation has never solved any issue regarding free trade without violating Constitutional rights.
          On a more pointed note, our organization works with a totally Opt-in list where we have all the appropriate information on that individual. However, we still get the occasional individual who reports our email as spam even though they have asked to receive it! SpamCop is the worst! They never validate a claim but automatically notify the Web host of an infraction. This violates several sections of the U.C.C. and yet they are still in business. Who is the criminal here?

          • There is a big difference between unwanted mail and email. The sender of unwanted mail pays the post office to deliver the mail. SPAM on the other hand costs the recipient and their mail provider. When a company purposely forges the recipient or puts a subject line to trick me into reading it, they are costing me time. My email consists of 90% SPAM and My SPAM filters only catch 75% of that. My company spends around $100k per year maintaining the mail servers. If SPAM was not being sent, it would save us at least half of that. So a medium size business is effectively losing $50k per year because of SPAM.
            I would not mind getting SPAM if I could actually opt out, but most opt out now just lets the spammer know that someone is actually receiving the email so they continue to send SPAM to that address. I will continue to fight SPAM in any way possible!

          • "Or what if a familiar friend sent me an e-mail with a spam-like subject line?"
            <p>
            Sometimes I send e-mail to my friends with a subject line, "e-mail marketing works!"

  • Another case of a judge with flawed reasoning. Spam should be outlawed. Judge Robinson should consider a career in another field if this is an example of his thinking processes.

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