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It seems that practically everyone hates unsolicited commercial e-mail — aka spam — and now the attorney general for the state of Washington is trying to do something about this growing problem. In the case State of Washington v. Meltzer, Attorney General Christine O. Gregoire is seeking injunctive relief and damages with respect to spam that allegedly violates the Unsolicited Electronic Email Act and the Washington Unfair Business-Consumer Protection Act. If Gregoire succeeds, perhaps similar cases will be prosecuted under anti-spam laws in other jurisdictions. THE DEFENDANTS The lawsuit, filed in King County Superior Court, accuses Samuel Meltzer and Adam Meltzer and their companies, Chippynet.com and Mobydns.com, of sending spam to Washington residents. The complaint states that the defendants have control over the content, transmission, activities and practices related to those Web sites. THE SPAM In order to get recipients to open their spam, defendants’ e-mail allegedly contains a variety of attention-getting subject lines and sender names in the “from” field of the e-mail. For example, subject lines allegedly include “Payment Past Due,” “Check Unclaimed,” and “URGENT — Account Update.” “From” fields allegedly include sender names such as “Collection Department” and “Payment Department.” Once a recipient views the text of defendants’ spam, the recipient allegedly views advertisements for debt consolidation services, with encouragement to click on a hypertext link to obtain a “free no obligation consultation.” When the recipient clicks through the link, he or she is allegedly directed to either chippynet.com or mobydns.com. According to the attorney general’s complaint, these Web sites include references to services provided by a debt management company and an application form to be filled out and submitted for a “free debt analysis.” The application form seeks information about the given recipient, including his or her name, address, e-mail address and the amount of unsecured debt owed. Recipients who fill out and send in the Web site application form then allegedly receive a telephone call from a business which tries to sell them debt consolidation services. LEGAL ACTION On July 11, Gregoire’s office filed suit against the defendants. Gregoire’s complaint asserts that defendants’ spam practices violate the Washington Unsolicited Electronic Email Act and the Unfair Business Practices-Consumer Protection Act. These laws, which seek to redress unlawful business conduct, prohibit spam that contains misleading information in the subject line and misrepresents its point of origin. Specifically, the attorney general contends that the subject lines used by defendants “mislead recipients as to the true nature of the message itself” and “constitute attempts to deceptively entice the recipient into downloading and reading the entire text of the message.” Moreover according to the complaint, “defendants misrepresent the identity of the sender.” “Instead of identifying the true originator,” defendants use false originating names “to create a sense of importance and urgency about the message,” as they create the wrongful impression that the recipient is being contacted about a matter involving “the collection or payment of an existing financial obligation.” Indeed, “the false identities are used to deceive the recipient into opening and reading the text” of the spam. RELIEF SOUGHT The attorney general’s complaint seeks a permanent injunction prohibiting defendants’ conduct, in addition to up to $2,000 per violation, attorney fees and costs. BROADER IMPLICATIONS As of yet, Congress has not enacted any sweeping legislation to grapple with e-mail spam on a national basis. Thus, a number of states have attempted to fill the gap by passing their own legislation. Washington is one of those states. If Gregoire succeeds in this lawsuit, other states, and perhaps Congress, may become more emboldened to root out spam at its core — the spammers themselves. 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.Mr. Sinrod may be reached by e-mail at [email protected]

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