Spam – we’ve all heard of it, and most of us have received it. Although not all spam is illegal, almost all of it is a nuisance. Washington’s 1998 anti-spam statute, which was challenged on constitutional grounds, was upheld by the Washington Supreme Court in 2001. In 2003, the law outlining jurisdiction for Washington district courts was amended to specifically allow these courts to hear spam cases. It now serves as a valuable weapon that individual consumers and the state can use to fight deceptive spam.
In order to be used properly, it is important for consumers to fully understand what the law says.
Washington's law makes it illegal in Washington to send an unsolicited commercial e-mail IF the e-mail is sent:
- To a Washington e-mail address; or
- From a computer located in Washington.
- False information identifying the point of origin of the message or that hides the true origin of the sender (Also known as a "False Header");
- False or misleading information in the subject line; or
- A third party's e-mail address (domain name) without permission.
The law only applies when a sender knows or has reason to know the e-mail is being sent to Washington.
How does a sender find out if an e-mail address is located in Washington?
- The sender checks with the domain name registrant (usually the Internet Service Provider) before sending the e-mail;
- If the information is available, the sender is deemed to know the address is in Washington; or
- Even if the sender fails to inquire about the information, as long as it's available, the sender is deemed to know.
REGISTER your e-mail and take other steps to make your Washington e-mail address available.
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Although spam may be very obnoxious or frustrating to receive, unless it violates one of the elements of Washington’s spam law, it is not illegal in this state. One of the easiest ways to tell if an e-mail violates Washington’s spam statute is to take a look at the subject line of the e-mail and compare it to the text of the message.
Generally, a subject line is considered legally deceptive if it has a tendency or capacity to deceive consumers. It need not actually deceive or harm consumers and there need not be intent to deceive.
If the subject line is NOT deceptive – in that the subject line clearly represents what is being sent, the e-mail does not likely meet this element of the spam statute. Unless you show that another element has been violated, you may not need to file the complaint.
How do I know if it is deceptive?
Carefully examine the body of the e-mail message as it relates to the e-mail’s subject line and ask yourself these questions:
- Does it accurately describe what is contained in the e-mail? For example, does a subject line describing "important news about your taxes" contain a message with information about a get-rich-quick scheme?
- Is it a "come-on," attempting to entice you to read the message?
- Does it create a false sense of urgency?
- Does it misrepresent the identity of the sender of the message?
Here are a few examples of deceptive subject lines our office has received over the years:
|Subject Line||Body of Spam|
|"board meeting 3ish"||Online pharmacy solicitation|
|"URGENT - Account Update"||Debt consolidation service|
|"Check Unclaimed"||Debt consolidation service|
|"This works – have a look"||Online casino solicitation|
|"I talked to him yesterday"||Online pharmacy solicitation|
|"Payment Past Due"||Debt consolidation service|
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Chapter 19.190 RCW: COMMERCIAL ELECTRONIC MAIL
19.190.020 Unpermitted or misleading electronic mail – Prohibition.
19.190.030 Unpermitted or misleading electronic mail – Violation of consumer protection act.
19.190.040 Violations – Damages.
19.190.050 Blocking of commercial electronic mail by interactive computer service – Immunity from liability.
19.190.060 Commercial electronic text message - Prohibition on initiation or assistance - Violation of consumer protection act.
19.190.070 Commercial electronic text message - When allowed.
19.190.080 Personally identifying information - Violation of chapter.
19.190.090 Civil actions.
19.190.100 Violation - Consumer protection act.
19.190.110 Intent - Preemption of local laws.
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Background Paper on Washington Supreme Court Case Challenging Washington's Anti-Spam Law
State v. Heckel (Jason), d/b/a Natural Instincts
In 1998, the Washington Legislature passed the "Unsolicited Commercial Electronic Mail Act," RCW 19.190.020, which prohibits unsolicited electronic mail that advertises consumer products with a false or misleading subject line or return address. Such e-mail is more commonly known as "spam."
The law addresses three consumer harms created by spam. First, recipients are the victims of a deceptive consumer practice because they pay for the Internet time and services that deliver the deceptive e-mail. Consumers waste their on-line time downloading deceptive mail, and false subject lines prevent them from making informed decisions on whether to delete messages. Recipients also are unable to determine accurate addresses in order to respond.
Second, persons whose addresses are misappropriated are harmed by receiving floods of responding e-mails nominally directed towards the original sender of the deceptive e-mail. The Legislature heard how a misappropriated e-mail return address shut down a legitimate electronic site due to persons responding by hitting "reply" and "send."
Finally, the consumer's Internet Service Provider (ISP) is harmed because mass e-mailings clog systems and cause overloads, down time, and costs associated with filtering deceptive e-mails.
Jason Heckel is an Oregon resident who sent mass e-mails to addresses that he obtained from various sources. His messages invited recipients to send $40 by regular mail and he would send a booklet about "How to Profit from the Internet." In some cases, Heckel failed to send the 46-page booklet after consumers sent their money.
In June 1998, representatives of the Attorney General's Office met with Heckel to advise him of his violations of RCW 19.190.020. On October 22, 1998, the Attorney General's Office filed suit against Heckel and his company, Natural Instincts, after 20 subsequent complaints showed that he had continued to send e-mails with misleading subject lines and false return addresses.
On March 10, 1999, King County Superior Court Judge Palmer Robinson granted the defendant's motion to dismiss the case on grounds that the state's law violated the Commerce Clause of the U.S. Constitution. The Attorney General's Office appealed that decision directly to the Washington Supreme Court.
The Supreme Court heard oral argument in the case on March 20, 2001. The issue presented to the court was whether Washington's prohibition on commercial e-mail with deceptive subject lines and return addresses violated the dormant Commerce Clause.
Washington argued that the court's analysis of whether Washington's law violates the Commerce Clause should consider what it cost Heckel to comply with the law. The state argued that he would simply have to refrain from using misleading subject lines and return addresses. That burden on commerce is not "clearly excessive" in light of the local benefits of the law. In fact, Heckel has to alter the headers' return addresses to make them deceptive, because bulk email programs normally send out the actual return addresses that originate with the e-mails. Compliance with the law normally creates no burden on those who use accurate headers and subject lines.
Heckel argued that he cannot filter his mass e-mailings from reaching Washington recipients, and even if he did, an out-of-state e-mail address might be opened by a recipient temporarily in Washington. Accordingly, Heckel cannot comply with Washington law except making his mass e-mailings non-deceptive. Heckel argued that this creates an impermissible burden on interstate commerce because Washington law might affect conduct that occurs outside Washington.
What Happened In the Supreme Court?
In June 2001, the Washington Supreme Court unanimously upheld the constitutionality of the of the state's anti-spam e-mail law.
In its opinion, the court found that "... the only burden the Act places on spammers is the requirement of truthfulness, a requirement that does not burden commerce at all but actually 'facilitates it by eliminating fraud and deception.' "
What Was the Significance of the Supreme Court's Decision?
The constitutionality of Washington's anti-spam e-mail law was upheld, meaning the state is free to continue to use this law to protect consumers. The court also ordered that the case return to Superior Court for trial
What Happened Next?
In September 2002, King County Superior Court Judge Douglass North declared that Heckel’s misleading commercial e-mail violated Washington's statute.
North decided that no disputed facts existed in the case, which meant a full trial was not necessary. In October 2002, Heckel was ordered to pay $98,197.74. – $2,000, for one violation of the anti-spam law. The remainder covered the state's attorneys' fees and court costs.
At that point, Heckel once again appealed the trial court's ruling, this time challenging the statute on First Amendment grounds. That appeal was heard by the Court of Appeals, which upheld the constitutionality of the statute in June 2004. Heckel once again appealed the ruling to the Supreme Court, which denied review on March 1, 2005.
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