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Just days ago, the Washington Supreme Court overturned a trial court decision in the case Washington v. Heckelwhich had struck down Washington’s anti-spam law as unconstitutional for impermissibly burdening interstate commerce. While there are problems with individual states seeking to govern Internet legal issues that cut across state boundaries, in this particular instance the Washington Supreme Court appears to have come to the correct conclusion in upholding the state law in question. Still, at some point, one of the many federal spam bills pending in Congress should pass and likely preempt state laws, resulting in clear national rules governing the transmission of unsolicited commercial e-mail. JUST THE FACTS MA’AM Starting in early 1996, Jason Heckel, an Oregon resident, began sending spam over the Internet. In 1997, he developed a 46-page booklet entitled “How to Profit From the Internet” which described how to set up an online promotional business, acquire free e-mail accounts, and obtain software for sending bulk e-mail. In mid-1998, Heckel started marketing the booklet by sending between 100,000 and 1,000,000 unsolicited commercial e-mails per week. Soon thereafter, the Consumer Protection Division of the Washington State Attorney General’s Office began receiving complaints from Washington recipients of Heckel’s spam messages. The complaints asserted that Heckel’s messages contained misleading subject lines and false transmission paths. WASHINGTON FILES SUIT In October 1998, the State of Washington filed suit against Heckel. The State first alleged that Heckel violated a Washington statute that bars false or misleading information in the subject line of e-mail solicitations. For example, Heckel typed “Did I get the right e-mail address?” in the subject line of some of his e-mails. In the State’s view, this falsely suggested that an acquaintance of the recipient was initiating contact. The State also alleged that Heckel had violated a portion of the Washington statute that prohibits misrepresentation of transmission paths of his unsolicited commercial e-mails. Heckel had routed his spam through more than a dozen different domain names without obtaining permission from the registered domain owners. Heckel also opened and canceled e-mail accounts so rapidly that e-mail recipients who attempted to contact him in reply generally were unsuccessful. The State sought a permanent injunction barring Heckel’s spam practices, civil penalties, as well as costs and attorneys’ fees. IN THE TRIAL COURT TRENCHES Both the State and Heckel requested summary judgment, with each side arguing that its case was so convincing that a trial was unnecessary. While the State argued that Heckel violated Washington law in terms of misleading subject lines and false transmission data, Heckel asserted that the Washington anti-spam law was unconstitutional, as it violated the dormant Commerce Clause by burdening interstate commerce. The trial court agreed with Heckel, finding that “the statute in question here violates the Federal Interstate Commerce clause of the United States Constitution” because “the Washington Statute is unduly restrictive and burdensome.” The State then took a direct appeal to the Washington Supreme Court. THE WASHINGTON SUPREMES The Washington Supreme Court tipped its hand slightly at the outset of its opinion by focusing the question presented on Washington: “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?” The court then embarked on its analysis by properly noting that the Commerce Clause grants Congress “the power …[t]o regulate commerce … among the several states,” and by acknowledging that “[i]mplicit 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.” The court held that the Washington anti-spam law is not unconstitutional because it “applies evenhandedly to in-state and out-of-state spammers,” finding that “just as the statute applied to Heckel, an Oregon resident, it is enforceable against a Washington business engaging in the same practices.” In addition, the court held that “the Act’s local benefits surpass any alleged burden on interstate commerce.” In terms of benefits, the Act protects ISPs, actual owners of forged domain names, and e-mail users. As to burden, “the Act places on spammers … the requirement of truthfulness, a requirement that does not actually burden commerce at all but actually ‘facilitates it by eliminating fraud and deception.’” The court then addressed the real meat of Heckel’s argument — the possibility of inconsistent regulation of spam among the states. The court noted that 17 states have passed legislation regulating “electronic solicitations.” However, while some of those state laws impose additional requirements, according to the court, nothing about the Washington law is inconsistent with the laws of other states, as the Washington law simply requires accurate and truthful subject lines and transmission information. Indeed, “it is inconceivable that any state would ever pass a law requiring spammers to use misleading subject lines or transmission paths.” THE END GAME The Washington law in Heckelhas passed constitutional muster. But that does not end the inquiry in terms of the big picture. A number of anti-spam bills have been introduced in Congress, but so far, not one of them has passed. In this federal law void, the states have stepped up. Yet, the laws of the states do differ with respect to some of their requirements. The Internet truly does not know geographic boundaries. In fact, people and businesses sending e-mail messages often times do not know exactly into which states their messages are traveling. Thus, to guide behavior and expectations, it makes most sense to have a federal law, instead of a patchwork of different state laws, governing the sending of unsolicited commercial email. Who knows, maybe this will be the year when such a law is passed. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is Duane Morris.

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