[Ecommerce] State wins case against deceptive spammer

[Manon Ress/Essential]

http://seattlepi.nwsource.com/local/87049_spam14.shtml

State wins case against deceptive spammer

Saturday, September 14, 2002

By CANDACE HECKMAN
SEATTLE POST-INTELLIGENCER REPORTER

Washington, the first state to take a legal stand against sending 
misleading, unwanted e-mail, won its first case yesterday, against a 
prolific spammer who flooded the state's computers with advertising 
several years ago.

A King County Superior Court judge declared a summary judgment against 
Jason Heckel, a Salem, Ore., businessman, finding that he violated the 
state's anti-spam law. The judge ruled that a civil trial, which was 
weeks away, wouldn't be needed because the state had proved its case.

The law, which does not ban all unsolicited commercial e-mail, makes it 
illegal to send an e-mail to people in Washington that contains 
deceptive subject lines, uses a bogus return address or uses a third 
party's domain name without permission.

"This is a great victory for Washington consumers," Attorney General 
Christine Gregoire said yesterday. "Deceptive e-mails are more than just 
a nuisance, they rob consumers and businesses of money and time."

The state sued Heckel four years ago, after he sent out millions of 
e-mails advertising a product he developed. Among other things, 
consumers were unable to reply to the e-mail.

Heckel's attorney, Dale Crandall, said that his client would appeal.

"It is not a settled issue yet whether states will be allowed to do 
this," Crandall said.

Others, however, disagree.

By winning yesterday's case, Washington has become the first state to 
test its anti-spam law through the courts and finally win a judgment, 
said John Mozena of the Coalition Against Unsolicited Commercial E-mail, 
an Internet-based advocacy group of anti-spam organizations around the 
world.

"Hopefully, it will dissuade spammers from sending their messages to 
Washington state residents," Mozena said, adding that other states, such 
as California, are now testing their anti-spam laws in the courts.

After the Washington Legislature approved the anti-spam law in March 
1998, other states began to follow.

Today 26 states have some kind of law restricting unsolicited e-mail.

It may take years to determine how effective those laws are. The public 
has been slow to realize that spam can be illegal, said Ethan Ackerman, 
a research associate at the Center for Law, Commerce and Technology and 
the University of Washington Law School.

"Whoever invented the delete key did a lot more than anyone who ever 
drafted a law against unsolicited e-mail," Ackerman said. "But it has to 
start somewhere."

Yesterday's victory was long in coming for Gregoire's office. The 
attorney general first sued the Oregon spammer in 1998, shortly after 
lawmakers approved the state law.

Gregoire accused Heckel of sending millions of e-mails advertising a 
brochure he developed called "How to Profit From the Internet," for sale 
for $39.95.

Heckel's messages began with the subject lines, "Did I get the right 
e-mail address?" and "For your review--HANDS OFF!" And when consumers 
tried to reply to the e-mail, the message came back as undeliverable. 
But the state said he sold 30 to 50 brochures a month.

When the case was first heard in 2000, a Superior Court judge threw it 
out, saying that the state's anti-spam law was unconstitutional.

When that happened, Washington's case against Heckel attracted the 
attention of regulators and policymakers around the world.

Then last year, the Washington State Supreme Court upheld the law, 
finding that the only burden the rule "places on spammers is the 
requirement of truthfulness."

The U.S. Supreme Court later declined to hear Heckel's appeal.

A trial was scheduled for Sept. 30. But at a hearing yesterday morning, 
King County Superior Court Judge Douglas North said that the facts were 
not in dispute: Heckel violated all three provisions of Washington's 
anti-spam law.

North will hold a hearing later this year to set the amount of damages 
he will order Heckel to pay the state.

Until yesterday, the case had been through a series of hearings and 
appeals. Legal scholars have opined on both sides in the country's most 
respected journals.

Heckel finds a few allies in those, who believe that the Internet must 
be regulated uniformly and not by the different laws of several states.

"Right now it's a bunch of states making their own laws about how people 
in other states can do business," Crandall, his attorney, said. "It's a 
profoundly interesting case about whether the government can regulate 
business on the Internet, or at least regulate equally."

P-I reporter Candace Heckman can be reached at 206-448-8348 or 
candaceheckman@seattlepi.com