State v. Heckel, No. 69416-8, (Slip Op., June 7, 2001).
State v. Heckel, No. 69416-8, (Slip Op., June 7, 2001).
June 2001 STATE v. HECKEL 1
Cause No. 69416-8
[No. 69416-8. En Banc.]
Argued March 20, 2001. Decided June 7, 2001.
STATE OF WASHINGTON, )
)
Appellant, ) No. 69416-8
)
v. ) En Banc
)
JASON HECKEL, doing business as )
NATURAL INSTINCTS, )
)
Respondent. ) Filed June 7, 2001
)
Trial Court: Superior Court, King County,
No. 98-2-25480-7, Palmer Robinson, J., March 10, 2000.
Office of the Attorney General, by Helen R. Cullen, Paula L. Selis,
W. S. Hirschfeld, and Jay D. Geck, for appellant.
Van Siclen & Stocks, by Robert C. Van Siclen; Dale L. Crandall;
Charese Rhony, for respondent.
Miller & Nash, by Brian W. Esler and Richard J. Busch, amicus curiae
on behalf of Washington Association of Internet
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, § 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, § 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. § 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 SPAMr 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).