State v. Heckel,
143 Wash. 2d 824,
24 P.3d 404
(2001),
cert. denied, 534 U.S. 997 (2001);
later proceeding, 122 Wash. App. 60,
93 P.3d 189 (2004), review denied, 153 Wash. 2d 1021,
108 P.3d 1229 (2005), cert. denied, 126 S. Ct. 387 (2005)
Supreme Court of the State of Washington
STATE OF WASHINGTON, Appellant, v. JASON HECKEL,
doing business as NATURAL INSTINCTS, Respondent.
No. 69416-8
En Banc
Filed June 7, 2001
OWENS, J. -- The State of Washington filed suit against Oregon
resident Jason Heckel, alleging that his transmissions of electronic mail
(e-mail) to Washington residents violated Washington's commercial
electronic mail act, chapter 19.190 RCW (the Act). On cross-motions for
summary judgment, the trial court dismissed the State's suit against
Heckel, concluding that the Act violated the dormant Commerce Clause of the
United States Constitution. This court granted the State's request for
direct review. We hold that the Act does not unduly burden interstate
commerce. We reverse the trial court's dismissal of the State's suit,
vacate the order on attorney fees, and remand this matter for trial.
FACTS
As early as February 1996, defendant Jason Heckel, an Oregon resident
doing business as Natural Instincts, began sending unsolicited commercial
e-mail (UCE), or 'spam,' over the Internet.1
In 1997, Heckel developed a 46-page
on-line booklet entitled 'How to Profit from the Internet.' The
booklet described how to set up an on-line promotional business, acquire
free e-mail accounts, and obtain software for sending bulk e-mail. From
June 1998, Heckel marketed the booklet by sending between 100,000 and
1,000,000 UCE messages per week. To acquire the large volume of e-mail
addresses,2 Heckel used the Extractor Pro software program, which harvests
e-mail addresses from various on-line sources and enables a spammer to
direct a bulk-mail message to those addresses by entering a simple command.
The Extractor Pro program requires the spammer to enter a return e-mail
address, a subject line,3 and the text of the message to be sent. The text
of Heckel's UCE was a lengthy sales pitch that included testimonials from
satisfied purchasers and culminated in an order form that the recipient
could download and print. The order form included the Salem, Oregon,
mailing address for Natural Instincts. Charging $39.95 for the booklet,
Heckel made 30 to 50 sales per month.
In June 1998, the Consumer Protection Division of the Washington State
Attorney General's Office received complaints from Washington recipients of
Heckel's UCE messages. The complaints alleged that Heckel's messages
contained misleading subject lines and false transmission
paths.4
Responding to the June complaints, David Hill, an inspector from the
Consumer Protection Division, sent Heckel a letter advising him of the
existence of the Act. The Act provides that anyone sending a commercial
e-mail message from a computer located in Washington or to an e-mail address
held by a Washington resident may not use a third-party's domain name
without permission,5 misrepresent or disguise in any other way the
message's point of origin or transmission path, or use a misleading subject
line.6 RCW 19.190.030 makes a violation of the Act a per se violation of
the Consumer Protection Act, chapter 19.86 RCW (CPA).
Responding to Hill's letter, Heckel telephoned Hill on or around June
25, 1998. According to Hill, he discussed with Heckel the provisions of
the Act and the procedures bulk e-mailers can follow to identify e-mail
addressees who are Washington residents. Nevertheless, the Attorney
General's Office continued to receive consumer complaints alleging that
Heckel's bulk e-mailings from Natural Instincts appeared to contain
misleading subject lines, false or unusable return e-mail addresses, and
false or misleading transmission paths. Between June and September 1998,
the Consumer Protection Division of the Attorney General's Office
documented 20 complaints from 17 recipients of Heckel's UCE messages.
On October 22, 1998, the State filed suit against Heckel, stating three
causes of action. First, the State alleged that Heckel had violated RCW
19.190.020(1)(b) and, in turn, the CPA, by using false or misleading
information in the subject line of his UCE messages. Heckel used one of
two subject lines to introduce his solicitations: 'Did I get the right
e-mail address?' and 'For your review--HANDS OFF!' Clerk's Papers (CP) at 6,
92, 113. In the State's view, the first subject line falsely suggested
that an acquaintance of the recipient was trying to make contact, while the
second subject line invited the misperception that the message contained
classified information for the particular recipient's review.
As its second cause of action, the State alleged that Heckel had violated
RCW 19.190.020(1)(a), and thus the CPA, by misrepresenting information
defining the transmission paths of his UCE messages. Heckel routed his
spam through at least a dozen different domain names without receiving
permission to do so from the registered owners of those names. For
example, of the 20 complaints the Attorney General's Office received
concerning Heckel's spam, 9 of the messages showed '13.com' as the initial
ISP to transmit his spam. CP at 44, 113. The 13.com domain name, however,
was registered as early as November 1995 to another individual, from whom
Heckel had not sought or received permission to use the registered name.
In fact, because the owner of 13.com had not yet even activated that domain
name, no messages could have been sent or received through 13.com.
Additionally, the State alleged that Heckel had violated the CPA by failing
to provide a valid return e-mail address to which bulk-mail recipients
could respond. When Heckel created his spam with the Extractor Pro
software, he used at least a dozen different return e-mail addresses with
the domain name 'juno.com' (Heckel used the Juno accounts in part because
they were free). CP at 88-89. None of the Juno e-mail accounts was
readily identifiable as belonging to Heckel; the user names that he
registered generally consisted of a name or a name plus a number (e.g.,
'marlin1374,' 'cindyt5667,' 'howardwesley13,' 'johnjacobson1374,' and
'sjtowns'). CP at 88-89. During August and September 1998, Heckel's Juno
addresses were canceled within two days of his sending out a bulk e-mail
message on the account. According to Heckel, when Juno canceled one e-mail
account, he would simply open a new one and send out another bulk mailing.
Because Heckel's accounts were canceled so rapidly, recipients who
attempted to reply were unsuccessful. The State thus contended that
Heckel's practice of cycling through e-mail addresses ensured that those
addresses were useless to the recipients of his UCE messages.7 During the
months that Heckel was sending out bulk e-mail solicitations on the Juno
accounts, he maintained a personal e-mail account from which he sent no
spam, but that e-mail address was not included in any of his spam messages.
The State asserted that Heckel's use of such ephemeral e-mail addresses in
his UCE amounted to a deceptive practice in violation of RCW 19.86.020.
The State sought a permanent injunction and, pursuant to RCW 19.86.140 and
.080 of the CPA, requested civil penalties, as well as costs and a
reasonable attorney fee. In early 2000, the parties cross-moved for
summary judgment. On March 10, 2000, the trial court entered an order
granting Heckel's motion and denying the State's cross motion. The court
found that the Act violated the Commerce Clause (U.S. Const. art. I, sec.
8, cl. 3) and was 'unduly restrictive and burdensome.' CP at 175. The
order permitted Heckel to 'present a cost bill for recovery of his costs
and statutory attorneys fees.' CP at 175. Heckel then moved the court for
a fee award of $49,897.50. Denying Heckel's request for fees under RCW
19.86.080 of the CPA, the court limited Heckel's award to statutory costs
under RCW 4.84.030.
Challenging the trial court's finding that the Act violated the
Commerce Clause, the State sought this court's direct review. Heckel
cross-appealed, seeking reversal of the trial court's denial of his attorney fee
request under the CPA. We granted direct review.
ISSUE
Does the Act, which prohibits misrepresentation in the subject line or
transmission path of any commercial e-mail message sent to Washington
residents or from a Washington computer, unconstitutionally burden
interstate commerce?
ANALYSIS
Standard of Review. The State seeks review of the trial court's decision
on summary judgment that the Act violated the dormant Commerce Clause.
This court reviews de novo a trial court's grant of summary judgment and
views all facts in the light most favorable to the party challenging the
summary dismissal. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124
(2000). A legislative act is presumptively constitutional, 'and the party
challenging it bears the burden of proving it unconstitutional beyond a
reasonable doubt.' State v. Brayman, 110 Wn.2d 183, 193, 751 P.2d 294
(1988); see also Frach v. Schoettler, 46 Wn.2d 281, 280 P.2d 1038, cert.
denied, 350 U.S. 838 (1955). A party meets the standard 'if argument and
research show that there is no reasonable doubt that the statute violates
the constitution.' Amalgamated Transit Union Local 587 v. State, 142 Wn.2d
183, 205, 11 P.3d 762 (2000) (citing Belas v. Kiga, 135 Wn.2d 913, 920, 959
P.2d 1037 (1998)).
Heckel's Challenge under the Commerce Clause. The Commerce Clause grants
Congress the 'power . . . [t]o regulate commerce with foreign nations, and
among the several states.' U.S. Const. art. I, sec. 8, cl. 3. Implicit in
this affirmative grant is the negative or 'dormant' Commerce Clause--the
principle that the states impermissibly intrude on this federal power when
they enact laws that unduly burden interstate commerce. See Franks & Son,
Inc. v. State, 136 Wn.2d 737, 747, 966 P.2d 1232 (1998). Analysis of a
state law under the dormant Commerce Clause generally follows a two-step
process. We first determine whether the state law openly discriminates
against interstate commerce in favor of intrastate economic interests. If
the law is facially neutral, applying impartially to in-state and
out-of-state businesses, the analysis moves to the second step, a balancing of the
local benefits against the interstate burdens:
Where the statute regulates evenhandedly to effectuate a legitimate local
public interest, and its effects on interstate commerce are only
incidental, it will be upheld unless the burden imposed on such commerce is
clearly excessive in relation to the putative local benefits. If a
legitimate local purpose is found, then the question becomes one of degree.
And the extent of the burden that will be tolerated will of course depend
on the nature of the local interest involved, and on whether it could be
promoted as well with a lesser impact on interstate activities . . . .
Id. at 754 (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.
Ct. 844, 25 L. Ed. 2d 174 (1970)).
The Act is not facially discriminatory. The Act applies evenhandedly
to in-state and out-of-state spammers: 'No person' may transmit the
proscribed commercial e-mail messages 'from a computer located in
Washington or to an electronic mail address that the sender knows, or has
reason to know, is held by a Washington resident.' RCW 19.190.020(1)
(emphasis added). Thus, just as the statute applied to Heckel, an Oregon
resident, it is enforceable against a Washington business engaging in the
same practices.
Because we conclude that the Act's local benefits surpass any alleged
burden on interstate commerce, the statute likewise survives the Pike
balancing test. The Act protects the interests of three groups--ISPs,
actual owners of forged domain names, and e-mail users. The problems that
spam causes have been discussed in prior cases and legislative hearings. A
federal district court described the harms a mass e-mailer caused ISP
CompuServe:
In the present case, any value CompuServe realizes from its computer
equipment is wholly derived from the extent to which that equipment can
serve its subscriber base. . . . [H]andling the enormous volume of mass
mailings that CompuServe receives places a tremendous burden on its
equipment. Defendants' more recent practice of evading CompuServe's
filters by disguising the origin of their messages commandeers even more
computer resources because CompuServe's computers are forced to store
undeliverable e-mail messages and labor in vain to return the messages to
an address that does not exist. To the extent that defendants'
multitudinous electronic mailings demand the disk space and drain the
processing power of plaintiff's computer equipment, those resources are not
available to serve CompuServe subscribers. Therefore, the value of that
equipment to CompuServe is diminished even though it is not physically
damaged by defendants' conduct.
CompuServe Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015, 1022 (S.D.
Ohio 1997) (citations omitted) (granting preliminary injunction against
bulk e-mailer on theory of trespass to chattels); see also Am. Online, Inc.
v. IMS, 24 F. Supp. 2d 548, 550 (E.D. Va. 1998) ('rely[ing] on the
reasoning of CompuServe' and finding that bulk e-mailer 'injured AOL's
business goodwill and diminished the value of its possessory interest in
its computer network'). To handle the increased e-mail traffic
attributable to deceptive spam, ISPs must invest in more computer
equipment.8 Operational
costs likewise increase as ISPs hire more customer
service representatives to field spam complaints and more system
administrators to detect accounts being used to send
spam.9
Along with ISPs, the owners of impermissibly used domain names and e-mail
addresses suffer economic harm. For example, the registered owner of
'localhost.com' alleged that his computer system was shut down for three
days by 7,000 responses to a bulk-mail message in which the spammer had
forged the e-mail address 'nobody@localhost.com' into his spam's header.
Seidl v. Greentree Mortgage Co., 30 F. Supp. 2d 1292, 1297-98 (D. Colo.
1998); see also Spamming: The E-Mail You Want to Can: Hearing Before the
Subcomm. on Telecommunications, Trade, and Consumer Protection of the Comm.
on Commerce, 106th Cong. 9 (1999) (statement of Rep. Gary G. Miller)
(attached as App. 4, Br. of Amicus WAISP); 146 Cong. Rec. H6373 (daily ed.
July 18, 2000) (statement of Rep. Miller), available at
http://thomas.loc.gov/home/c106query.html (recounting similar experience of California constituent).
Deceptive spam harms individual Internet users as well. When a spammer
distorts the point of origin or transmission path of the message, e-mail
recipients cannot promptly and effectively respond to the message (and
thereby opt out of future mailings); their efforts to respond take time,
cause frustration, and compound the problems that ISPs face in delivering
and storing the bulk messages. And the use of false or misleading subject
lines further hampers an individual's ability to use computer time most
efficiently. When spammers use subject lines 'such as 'Hi There!,'
'Information Request,' and 'Your Business Records,'' it becomes 'virtually
impossible' to distinguish spam from legitimate personal or business
messages.10 Individuals
who do not have flat-rate plans for Internet access
but pay instead by the minute or hour are harmed more directly, but all
Internet users (along with their ISPs) bear the cost of deceptive spam.
This cost-shifting--from deceptive spammers to businesses and e-mail users--has
been likened to sending junk mail with postage due or making
telemarketing calls to someone's pay-per-minute cellular
phone.11 In a case
involving the analogous practice of junk faxing (sending unsolicited faxes
that contain advertisements), the Ninth Circuit acknowledged 'the
government's substantial interest in preventing the shifting of advertising
costs to consumers.' Destination Ventures, Ltd. v. F.C.C., 46 F.3d 54, 56
(9th Cir. 1995) (holding that the Telephone Consumer Protection Act's (47
U.S.C. sec. 227) limitations on commercial speech did not violate the First
Amendment). We thus recognize that the Act serves the 'legitimate local
purpose' of banning the cost-shifting inherent in the sending of deceptive
spam.
Under the Pike balancing test, '[i]f a legitimate local purpose is found,
then the question becomes one of degree.' 397 U.S. at 142. In the present
case, the trial court questioned whether the Act's requirement of
truthfulness (in the subject lines and header information) would redress
the costs associated with bulk e-mailings. As legal commentators have
observed, however, 'the truthfulness requirements (such as the requirement
not to misrepresent the message's Internet origin) make spamming
unattractive to the many fraudulent spammers, thereby reducing the volume
of spam.' Jack L. Goldsmith & Alan O. Sykes, The Internet and the Dormant
Commerce Clause, 110 Yale L.J. 785, 819 (2001). Calling 'simply wrong' the
trial court's view 'that truthful identification in the subject header
would do little to relieve the annoyance of spam,' the commentators assert
that '[t]his identification alone would allow many people to delete the
message without opening it (which takes time) and perhaps being offended by
the content.' Id. The Act's truthfulness requirements thus appear to
advance the Act's aim of protecting ISPs and consumers from the problems
associated with commercial bulk e-mail.
To be weighed against the Act's local benefits, 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.' Id. Spammers must use an accurate,
nonmisleading subject line, and they must not manipulate the transmission
path to disguise the origin of their commercial messages. While spammers
incur no costs in complying with the Act, they do incur costs for
noncompliance, because they must take steps to introduce forged information
into the header of their message.12
In finding the Act 'unduly burdensome,'
CP at 175, 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.
To initiate deceptive spam without violating the Act, a spammer must weed
out Washington residents by contacting the registrant of the domain name
contained in the recipient's e-mail address.13 This focus on the burden of
noncompliance is contrary to the approach in the Pike balancing test, where
the United States Supreme Court assessed the cost of compliance with a
challenged statute. Pike, 397 U.S. at 143. Indeed, 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. We therefore conclude that Heckel has failed to
prove that 'the burden imposed on . . . commerce [by the Act] is clearly
excessive in relation to the putative local benefits.' Id. at 142
(emphasis added).
Drawing on two 'unsettled and poorly understood' aspects of the dormant
Commerce Clause analysis, Heckel contended that the Act (1) created
inconsistency among the states and (2) regulated conduct occurring wholly
outside of Washington.14 The inconsistent-regulations test and the
extraterritoriality analysis are appropriately regarded as facets of the
Pike balancing test.15 The Act
survives both inquiries. At present, 17 other states
have passed legislation regulating electronic solicitations.16 The
truthfulness requirements of the Act do not conflict with any of the
requirements in the other states' statutes, and it is inconceivable that
any state would ever pass a law requiring spammers to use misleading
subject lines or transmission paths. Some states' statutes do include
additional requirements; for example, some statutes require spammers to
provide contact information (for opt-out purposes) or to introduce subject
lines with such labels as 'ADV' or 'ADV-ADLT.' But because such statutes
'merely create additional, but not irreconcilable, obligations,' they 'are
not considered to be 'inconsistent'' for purposes of the dormant Commerce
Clause analysis. Instructional Sys., Inc. v. Computer Curriculum Corp., 35
F.3d 813, 826 (3d Cir. 1994). The inquiry under the dormant Commerce
Clause is not whether the states have enacted different anti-spam statutes
but whether those differences create compliance costs that are 'clearly
excessive in relation to the putative local benefits.' Pike, 397 U.S. at
142. We do not believe that the differences between the Act and the
anti-spam laws of other states impose extraordinary costs on businesses
deploying spam.17
Nor does the Act violate the extraterritoriality principle in the dormant
Commerce Clause analysis. Here, there is no 'sweeping extraterritorial
effect' that would outweigh the local benefits of the Act. Edgar v. MITE
Corp., 457 U.S. 624, 642, 102 S. Ct. 2629, 73 L. Ed. 2d 269 (1982). Heckel
offers the hypothetical of a Washington resident who downloads and reads
the deceptive spam while in Portland or Denver. He contends that the
dormant Commerce Clause is offended because the Act would regulate the
recipient's conduct while out of state. However, the Act does not burden
interstate commerce by regulating when or where recipients may open the
proscribed UCE messages. Rather, the Act addresses the conduct of spammers
in targeting Washington consumers. Moreover, the hypothetical mistakenly
presumes that the Act must be construed to apply to Washington residents
when they are out of state, a construction that creates a jurisdictional
question not at issue in this case.
In sum, we reject the trial court's conclusion that the Act violates the
dormant Commerce Clause. Although the trial court found particularly
persuasive American Libraries Association v. Pataki, 969 F. Supp. 160
(S.D.N.Y. 1997), that decision--the first to apply the dormant Commerce
Clause to a state law on Internet use--is distinguishable in a key respect.18
At issue in American Libraries was a New York statute that made it a crime
to use a computer to distribute harmful, sexually explicit content to
minors. The statute applied not just to initiation of e-mail messages but
to all Internet activity, including the creation of websites. Thus, under
the New York statute, a website creator in California could inadvertently
violate the law simply because the site could be viewed in New York.
Concerned with the statute's 'chilling effect,' id. at 179, the court
observed that, if an artist 'were located in California and wanted to
display his work to a prospective purchaser in Oregon, he could not employ
his virtual [Internet] studio to do so without risking prosecution under
the New York law.' Id. at 174. In contrast to the New York statute, which could
reach all content posted on the Internet and therefore subject individuals to
liability based on unintended access, the Act reaches only those deceptive
UCE messages directed to a Washington resident or initiated from a computer
located in Washington; in other words, the Act does not impose liability
for messages that are merely routed through Washington or that are read by
a Washington resident who was not the actual addressee.
CONCLUSION
The Act limits the harm that deceptive commercial e-mail causes
Washington businesses and citizens. The Act prohibits e-mail solicitors
from using misleading information in the subject line or transmission path
of any commercial e-mail message sent to Washington residents or from a
computer located in Washington. We find that the local benefits of the Act
outweigh any conceivable burdens the Act places on those sending commercial
e-mail messages. Consequently, we hold that the Act does not violate the
dormant Commerce Clause of the United States
Constitution. We reverse the trial court and remand the matter for trial.
The trial court's order on attorney fees is vacated.
ALEXANDER, C.J., SMITH, JOHNSON, MADSEN, SANDERS, IRELAND, BRIDGE
and CHAMBERS, JJ., concur.
1 ''Commercial electronic mail message' means an
electronic mail message
sent for the purpose of promoting real property, goods, or services for
sale or lease.' RCW 19.190.010(2). The term 'spam' refers broadly to
unsolicited bulk e-mail (or ''junk' e-mail'), which 'can be either
commercial (such as an advertisement) or noncommercial (such as a joke or
chain letter).' Sabra-Anne Kelin, State Regulation of Unsolicited
Commercial E-Mail, 16 Berkeley Tech. L.J. 435, 436 & n.10 (2001). Use of
the term 'spam' as Internet jargon for this seemingly ubiquitous junk
e-mail arose out of a skit by the British comedy troupe Monty Python, in
which a waitress can offer a patron no single menu item that does not
include spam: 'Well, there's spam, egg, sausage and spam. That's not got
much spam in it.' 2 Graham Chapman et al., The Complete Monty Python's
Flying Circus: All the Words 27 (Pantheon Books 1989); see also Kadow's
Internet Dictionary, at http://www.msg.net/kadow/answers/s.html (last
visited May 7, 2001). Hormel Foods Corporation, which debuted its SPAM(R)
luncheon meat in 1937, has dropped any defensiveness about this use of the
term and now celebrates its product with a website (www.spam.com). See
Hormel Objects to Cyber Promotions' Use of 'SPAM' Mark, 4 No. 1 Andrews
Intell. Prop. Litig. Rep. 19 (1997); Laurie J. Flynn, Gracious Concession
on Internet 'Spam,' N.Y. Times, Aug. 17, 1998, at D3. Because the term has
been widely adopted by Internet users, legislators, and legal commentators,
we use the term herein, along with its useful derivatives 'spammer' and
'spamming.'
2 ''Electronic mail address' means a destination,
commonly expressed as a
string of characters, to which electronic mail may be sent or delivered.'
RCW 19.190.010(3).
3 The subject line, similar to the 'RE' line of a letter or memorandum, is
generally displayed (at least in part) alongside the sender's name in the
recipient's e-mail inbox.
4 Each e-mail message, which is simply a computer data file, contains
so-called 'header' information in the 'To,' 'From,' and 'Received' fields.
When an e-mail message is transmitted from one e-mail address to another,
the message generally passes through at least four computers: from the
sender's computer, the message travels to the mail server computer of the
sender's Internet Service Provider (ISP); that computer delivers the
message to the mail server computer of the recipient's ISP, where it
remains until the recipient retrieves it onto his or her own computer.
Every computer on the Internet has a unique numerical address (an Internet
Protocol or IP address), which is associated with a more readily
recognizable domain name (such as 'mysite.com'). As the e-mail message
travels from sender to recipient, each computer transmitting the message
attaches identifying data to the 'Received' field in the header. The
information serves as a kind of electronic postmark for the handling of the
message. See Clerk's Papers (CP) at 130-34. It is possible for a sender
to alter (or 'spoof') the header information by misidentifying either the
computer from which the message originated or other computers along the
transmission path. See Kelin, supra note 1, at 445.
5 See RCW 19.190.010(6) (defining 'Internet domain name').
6
'(1) No person may initiate the transmission, conspire with another to
initiate the transmission, or assist the transmission, of a commercial
electronic mail message from a computer located in Washington or to an
electronic mail address that the sender knows, or has reason to know, is
held by a Washington resident that:
'(a) Uses a third party's internet domain name without permission of
the third party, or otherwise misrepresents or obscures any information in
identifying the point of origin or the transmission path of a commercial
electronic mail message; or
'(b) Contains false or misleading information in the subject line.
'(2) For purposes of this section, a person knows that the intended
recipient of a commercial electronic mail message is a Washington resident
if that information is available, upon request, from the registrant of the
Internet domain name contained in the recipient's electronic mail address.'
RCW 19.190.020.
7 The experience of 1 of the 17 complainants to the Attorney General's
Office is illustrative. Nancy Smith received Heckel's spam on September 1,
1998; the message was sent from a Juno account with the user name
'apollo1113,' and the subject line read 'For your review--HANDS OFF.' CP
at 140. On or about September 1, 1998, Smith sent a copy of the Natural
Instincts order form with a check for $39.95 by U.S. Mail to the Salem,
Oregon, address provided on the order form. Hearing nothing for some
weeks, Smith sent a message by return e-mail on September 30, 1998, but
within a minute she received a return e-mail from Juno stating that the
attempt had failed due to termination of the account. Unable to find any
information about Natural Instincts on the Internet, Smith contacted her
bank and learned that the check had cleared two weeks earlier. Smith then
contacted the Attorney General's Office. CP at 140-41, 149-50.
8 '[W]hen Internet users attempt to reply to
deceptive spam that has a
fraudulent return address or domain name, one e-mail message (and the
ISP['s] related computer log entry) instantly becomes three separate e-mail
messages (and additional computer log entries) because: (1) the ISP server
that is the victim of the fraudulent return address or domain name sends an
error message back to the Internet user and their ISP announcing that the
return path was invalid, (2) a message is sent to the server administrator
requesting an investigation of the return address for potential problems,
and (3) a message is sent to the server log in case the ISP wishes to track
down the problem later. With bulk spam, these messages snowball to clog
ISP resources, and ISPs have little choice but to purchase additional
equipment at a significant cost.' Br. of Amicus Washington Association of
Internet Service Providers (WAISP) at 11-12.
9 See Br. of Amicus WAISP at 12-13; see also
Spamming: The E-Mail You Want
to Can: Hearing Before the Subcomm. on Telecommunications, Trade, and
Consumer Protection of the Comm. on Commerce, 106th Cong. 41-42 (1999)
(statement of Michael Russina, Director of Systems Operations, SBC Internet
Services) (attached as App. 4, Br. of Amicus WAISP).
10 Testimony of Ed McNichol at Hearing on
H.B. 2752 Before the Washington
House Comm. on Energy and Utilities (Jan. 28, 1998) (partial transcript
attached as App. 2, Br. of Amicus WAISP; audio also available at
http://198.239.32.162/ramgen/199801/1998010112.ra).
11 See Spamming: The E-Mail You Want to Can,
supra note 9, at 1 (statement
of Rep. W.J. Tauzin, Chairman, Subcomm. on Telecommunications, Trade, and
Consumer Protection) (attached as App. 4, Br. of Amicus WAISP).
12 'This generally involves paying a bulk
re-mailing service to forge e-mail
headers and send out the spammer's message, or at least running additional
software programs to alter the e-mail messages' address and domain name
information.' Br. of Amicus WAISP at 8.
13 See RCW 19.190.020(2). The Washington
Association of Internet Service Providers (WAISP) and the Washington Attorney
General co-sponsor a registry of Washington residents who do not want to
receive spam. See WAISP Registry Page, at http://registry.waisp.org (last
visited May 7, 2001).
14 Jack L. Goldsmith & Alan O. Sykes, The
Internet and the Dormant Commerce Clause, 110 Yale L.J. 785, 789 (2001).
15 See Goldsmith & Sykes, supra note 14, at
808 (concluding that
'inconsistent-regulations cases, like extraterritoriality cases, should be
viewed as just another variant of balancing analysis'); see also William
Lee Biddle, State Regulation of the Internet: Where Does the Balance of
Federalist Power Lie? 37 Cal. W. L. Rev. 161, 167 (2000) (suggesting that
'[t]he burden placed on interstate commerce through inconsistent local
regulation is more appropriately placed as part of the Pike balancing test,
rather than its own, separate line of inquiry').
16 See David E. Sorkin, Spam Laws, at
http://www.spamlaws.com/state/index.html; see also Max P. Ochoa,
Legislative Note: Recent State Laws Regulating Unsolicited Electronic Mail,
16 Santa Clara Computer & High Tech. L.J. 459 (2000); Br. of Appellant at
23 and App. A, B. Proposed federal legislation, the Unsolicited Commercial
Electronic Mail Act of 2000, H.R. 3113, 106th Cong. (2000), was passed by
the House on July 18, 2000, and has been referred to the Senate Committee
on Commerce, Science, and Transportation. The text of the bill may be
accessed through http://thomas.loc.gov/home/c106query.html.
17 As the State notes, '[p]resently, mail and
phone solicitors are expected
to abide by different states' telemarketing laws and other consumer
protection laws. E-mail solicitors should not be excused from the burden
of complying with a state's law simply because of the ease of sending bulk
e-mail solicitations in relation to other forms of commercial
solicitation.' CP at 53.
18 See CP at 216. At least 10 other cases
have distinguished American
Libraries. See, e.g., Hatch v. Super. Ct., 80 Cal. App. 4th 170, 94 Cal.
Rptr. 2d 453 (2000); People v. Hsu, 82 Cal. App. 4th 976, 99 Cal. Rptr. 2d
184 (2000); Ford Motor Co. v. Tex. Dep't of Transp., 106 F. Supp. 2d 905,
909 (W.D. Tex. 2000).
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 69416-8
Title of Case: State of Washington
v.
Jason Heckel Doing Business as Natural Instincts
File Date: 06/07/2001
Oral Argument Date: 03/20/2001
SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 98-2-25480-7
Judgment or order under review
Date filed: 03/10/2000
Judge signing: Hon. Palmer Robinson
JUSTICES
--------
Authored by Susan J. Owens
Concurring: Gerry L. Alexander
Charles Z. Smith
Charles W. Johnson
Barbara A. Madsen
Richard B. Sanders
Faith E Ireland
Tom Chambers
Bobbe J. Bridge
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Paula L. Selis
Office of the Atty Gen.
900 4th Ave., Ste 2000
Seattle, WA 98164
Helen R. Cullen
Ste 2000
900 4th Ave
Seattle, WA 98164
W. S. Hirschfeld
Wash St Aty General
900-4th Ave, 23rd Floor
Seattle, WA 98164
Jay D. Geck
Assistant Attorney General
Highways Licenses Bldg
PO Box 40100
Olympia, WA 98504-0100
Counsel for Respondent(s)
Robert C. Van Siclen
Van Siclen & Stocks
4508 Auburn Way N #a100
Auburn, WA 98002-1381
Dale L. Crandall
Attorney At Law
280 Court Street NE
Suite 14
Salem, OR 97301
Charese Rhony
698-12th Street SE
Suite 200
Salem, OR 97301
Amicus Curiae on behalf of Washington Association of Internet
Brian W. Esler
Miller & Nash
Two Union Sq
601 Union St Ste 4400
Seattle, WA 98101-2352
Richard J. Busch
601 Union St #4400
Seattle, WA 98101-2352
