Judge Deems Washington Anti-Spam Law Unconstitutional

ThatGuyAZ writes "A King County (Wash.) Superior Court Judge threw out a lawsuit under the tough Washington Anti-Spam law, calling the law "unduly restrictive and burdensome" in limiting interstate commerce. While the state can appeal this low-level ruling, this is definitely the opening shot in the coming legal battle over state attempts to regulate spam. "

Comments

Junk Faxes are as Illegal as SPAM should be

[FreeUser]

But is junkmail illegal? I personally have more of a problem with getting paper junkmail which takes more time to dispose of as I attempt to be a good recycler...all I have to do is hit the delete key in my inbox

I applaud your efforts and determination to recycle the paper wasted by junk mailers, but you miss the point entirely. Unlike junk mail (and the far more irritating junk phone calls), with email and usenet SPAM the cost of delivery is borne by the recipient, either directly (as in Europe, with their per minutes line and ISP charges) or indirectly as an ISP charges slightly more for internet access to offset the cost of the bandwidth which the SPAM has taken (and SPAM takes a tremendous amount of bandwidth).

Junk faxes are illegal, and have been for years, because the cost of toner and paper are borne by the recipient, and each junk fax costs the recipient real dollars. The same is true of SPAM.

Recycling paper may be more of a hassle than deleting unwanted mail, but multiply the bandwidth and disk usage of your unread mail by several million and the cost to the consumer for unsolicited SPAM is appalling. And while we could stop deforestation and meet our paper needs next growing season by planting hemp and producing paper from it rather than trees, there is no similar way to reclaim the bandwidth, diskspace, and people's time (also a considerable expense) which SPAMmers routinely steal from their victims.

The judge's decision is a farce, both logically in terms of the legalities themselves and in terms of their real-world effects. Not only should the state of Washington appeal the decision, but someone should take a very hard look at his portfolio and bank accounts. And everyone should forward their morning's SPAM to the idiot as well -- let him share in the consiquences of his ill-considered decision.

Finally, I recommend you take a gander at

http://www.privatecitizen.com/

$30 will go a very long way toward helping you avoid those long treks to the recycling center, and help you win back a big chunk of your valuable time. I have used this service and it does stop junk phonecalls altogethre, and junk mail slows to a tiny trickle. Highly recommended!

Re:This was a Bad Decision

[Bad Mojo]

You do make a valid point. I also agree that unsolicted commercial snail mail is a problem I would like to see addressed. Especially AOL CD-ROMs and other similar non paper things. But ...

"There are many ways to deal with spam on your own rather than getting the gov. and courts involved."

This is the loophole spammers are looking for. People who are willing to let tons of e-mail pass over the net because they only associate a line of text in their e-mail client program with spam. In fact, spam causes Gig after Gig of hard disk space to be taken up on servers around the world. Essentially using up someone elses resources against their will for something they more than likely do not want. This doesn't even take into consideration the wasted bandwidth that accumulates as more and more spam is sent off around the world each minute. This is not unlike someone advertising to you via FAX machine and using YOUR ink and paper to advertise to YOU.


Bad Mojo

Hey Buddy, Wanna Buy a Watch?

[Spud Zeppelin]

Really, we shouldn't allow the medium to dictate our metaphor here: how is spam really all that different from someone approaching you on the street and asking "Hey buddy, wanna buy a watch?" It's generally unwelcome, yes, is a low-percentage approach to generating sales, and oftentimes triggers anger on the part of the recipient, but (as others have already said) it's also constitutionally-protected speech. Quite frankly, I'd rather receive the junk through email (if I have to receive it at all) than have my physical mailbox jammed full of flyers and/or have to deal with street hustlers. At least with email relatively few physical resources are being used (at least compared to print) and there's little risk of physical violence (unlike an angry response to a street hustler).

So what's the best remedy to fighting spam, if legally they have a right to say it? The same answer as works best with street hustlers: pretend not to be listening! Close open relays. Run procmail and filter everything, discarding headers that appear to be forged. Refuse to work for people who generate junk mail; there's plenty of work for the technically-savvy in this country with companies that don't send it. And make sure 'net newbies that you know are well aware of the obvious choice: boycott anyone who sends you unsolicited mail, unequivically, regardless of how lucrative it is or how much it fills a need.



This is my opinion and my opinion only. Incidentally, IANAL.

Re:free speech hipocrasy

[Steve B]

If a group like planned parent hood, the NRA, the KKK or whatever sends out a message to a large group of people unsolicited, couldnt this be considered spam?

Yes, and if they do they should be punished for their theft of bandwidth just like anyone else.

I like the idea I read that the sentence for spamming should be to lock the spammer in a cell with a computer recieving a flood of spam. He is let out when he "just hits delete" a number of times equal to the number of spam messages he sent or caused to be sent.

(Oh, and meal announcements would be sent via the same link. Delete those, miss that meal -- so no just tying down the DELETE key....)
/.

I don't think this will last long.

[Phizzy]

The article does nothing to support the Judges findings. There is nothing in there that shows the arguments from the defense, or why the judge ruled in their favor. I'm guessing that the judge did not understand the case or the ramifications of the ruling very well. I dont see how "having them check an electronic registry of e-mail addresses to determine whether intended e-mail recipients were Washington residents and therefore protected by the law." is hindering interstate commerce. Maintaining such a database would be kind of a pain, but the government created the law, so they should have to go through the motions it entails. I'm sure this will be overturned.

Here's a link to the actual law

//Phizzy

Restricting Interstate Commerce?

[bildstorm]

I wonder if any of this judge has ever tried to run a business and received spam. Working at an ISP, I know that a lot of spam passes through here and that we have a lot of clients on 56k modems (not ISDN).

When a company has to download, wait, store, read through, and destroy junk mail that's not clearly identifiable as junk mail, it takes time. It hurts their business. Most businesses I know that use e-mail engage in interstate commerce and are adversely affected by spam.

So, in all reality, this judge really has no clue about what will or will not truly adversely affect interstate commerce.

When voting, be sure to elect tech-savvy officals!

This is NOT a Surprise

[TekPolitik]

The part of the spam law that was deemed unconstitutional is that relating to people outside the state transmitting advertising into the state. That was always shaky on constitutional ground due the interstate commerce provisions.

This ruling appears to have nothing to do with whether spam (or indeed any of the defendant's actions, which included forgery) is OK or not - it is a technical ruling that says that the state of Washington cannot impose a law affecting interstate commerce.

State laws should be drafted with listed clauses stating that an offence is an offence if the spam is:

1. From a sender within the state to a recipient within the state;
2. From a sender within the state to a recipient outside of the state; or
3. From a sender outside the state to a recipient within the state.

The laws should also explicitly state that if any of these clauses is held to be unconstitutional, the remaining clauses would continue to have force. States should expect clause 3 to be thrown out, and shouldn't depend on clause 2 to survive either. Clause 1 should survive.

Hormel Meat Product

[RancidPickle]

Hopefully this will get appealed. On one of my domains I have the following clause: The sending of any unsolicited email advertising messages to ANY ADDRESS from this domain will result in the imposition of civil liability against you in accordance with Cal. Bus. & Prof. Code Section 17538.45.

I have been spammed 3 times at the email address above (yup, it's active, and yup, some of my other accounts get spam daily... it seems just the email addy discourages spam for some odd reason). I was able to track down two of them, and sent bills for services rendered, as outlined on the site. One ignored it, one paid me $35 in accordance with my pricing policy. All my postings on newsgroups have a disclaimer about entering into a contract. I hate spam with such venom that I spend money just to make an example of the perpetrator. If I find out who they are, I always follow up with a legal notice to their ISP and host. It was drafted by an attorney, so it goes a long way towards shutting that part of their operation down. The second spammer who ignored the bill had his home ISP account cancelled, and it's a remote part of Arizona. He's now stuck with AOL. Yes, spammers hop to and fro getting free remailers, but I doggedly continue to play whack-a-spammer. Did I mention I hate spammers?

Hopefully the legal eagles in Washington will appeal, it looks like they have a good case. It really sucks when laws are made by folks with no concept of new technologies. Some anonymous person here said it best: sign the judge up (and the jerk's new employer) to every spam list... like going to a business opportunity newsgroup and asking for ideas to make money off of the internet.

Does anybody else see the inconsistency?

[Amphigory]

The "slashdot position" is that a little bit of censorship is like being a little bit pregnant. Yet the "slashdoterotti" are delighted to have censorship for spammers. Why? Spammers annoy them, porn doesn't.

The bottom line is that everyone wants to censor -- it's just a question of when. Animal farm, anyone?

--

Re:Spam is really not all that much

[Tet]

I have a little button on my heyboard that corresponds to a function known as a "delete message" function that really works wonders.

That's nice for you. However, before you can get to that stage, you have to download the message. Those of us in the UK (and, in fact, most of Europe) don't have free local calls. The upshot is, that to download a 2.5MB spam (yes, I've been spammed with PDF product catalogues this size before) over my modem costs me the equivalent of about US$2.00. Now if someone shoved some junk mail through your door with a bill for $2.00 that you had no choice but to pay, would you complain? No? Then please send me your address, I've got a once in a lifetime opportunity for you...

Re:Spam's not bad.

[Tackhead]

> Your servers may be private property. Maybe they shouldn't be.
> OR think of them as real life mailboxes. They're on your property, but everyone is welcome to send stuff to you.

You Just Don't Get It.

My servers are private property. I bought them. I own. They are mine because of that. You're quite free to tell me that what I've paid for "shouldn't be" mine, but I'm also quite free to call someone who wants to take from me what is mine, a "thief".

Your analogy with post office mailboxes is deeply flawed. My snail-mailbox is NOT mine. It resides on my property, but only the US Post Office is allowed to place things into it. If I tamper with someone else's snail-mail, I'm not only wronging them, but am breaking a federal law because the US Postal Service has a monopoly on the delivery of snail-mail to snail-mailboxes.

Unlike my snail-mailbox - owned by the USPS and the USPS having the obligation to put things that they've been paid to deliver whether I want those things or not - my /var/mail spool IS mine, and you may not have it.

I don't even have to give you a reason why you can't have it. The fact that it's my property is enough.

Finally, "submitting your name to the DMA" is laughably ineffective. DMA membership costs money. The vast majority of spammers have no reason to join the DMA, nor to abide by its practices. Particularly when the overwhelming majority (>95% by my personal 12-megabyte archive of spam) is for offers that are fraudulent.

You also wrote:
> they [spammers] need to be forced into compliance with some standards.

And what do you think a law telling them "you may not steal other people's time and diskspace, and doing so with fraudulent headers is especially bad, and doing so for the purposes of committing fraud is even worse" is? That law is a standard - a standard approved of by the vast majority of people in WA state - and it says "Theft is wrong. You may not do it."

Your "standard" of opt-out means more people get free reign to steal my resources. Until you're paying for those resources (making them your resources, not mine), may I cordially invite you to go fsck yourself? (Actually, just go fsck yourself. I don't have be cordial to thieves.)

My "standard" means thieves go to jail or end up on the wrong end of collection agencies. Stay the fsck off of my servers or expect punishment.

Anyone who's researchied this issue knows we've tried telling spammers to "be nice". For four years. The fact is, spam is theft, and telling thieves to "be nice when you steal" does nothing to fix the underlying problem. They're still punk spamming thieves.

And they'll continue to get their accounts whacked every time they spam me.

And when there's a federal law allowing for a right of private action in an amount ($500 or higher) sufficient to justify placing claims against spammers, I'll send demand letters to every fscking one of them.

oh, god, you are so wrong

[legLess]

Spam is "all that much." You're making the mistake of thinking that because something doesn't hurt you very much it must not be a problem for anyone else, either. This is very dangerous and sadly short-sighted.

Spam costs my company money in the form of bandwidth and employee time (most notably, my time). World-wide, spam clogs data line and slows traffic, clogs storage and makes some news groups useless while making messages expire faster on others. Spam makes the entire Internet slower and more expensive. Spam makes people afraid to give out their e-mail address, thus hurting e-commerce and legitimate information exchanges.

Spam is a 180-degree reversal of snail-mail direct-marketing, where the transaction cost is paid by the sender. With electronic spam, the sender typically has very low costs; the hapless receivers pick up the tab for him.

Spam should be exactly as illegal as a DoS attack, and there are simple, credible arguments comparing the two.

Re:Spam is really not all that much

[Jonathan C. Patschke]

Don't think of it in terms of the consumer (who is merely annoyed and in convenienced (as if that isn't enough)); think of it from the ISP's point of view. The anti-spam laws are an application of the none-one-infinite rule. That rule basically states that in order to be fair and sensible, you have to do one of the following:

• Never allow something (ex: drunk driving)
• Never allow it, except in a particular circumstance (ex: calling 911 to report a fire--you're only supposed to do that when there is a fire)
• Always allow it, from anyone, under any circumstances (within reason--you can't eat a hot dog in a ballpark if you haven't paid for a ticket to a game).

Now, let's look at how this can be applied to spam. Right now, most retailers and Internet merchants avoid spam merely because it is so annoying. Still, ISPs have to hire several staff (usually 1 per 2000 customers or so) to handle compaints of unsolicited commercial email. Most of this mail is sent through a third relay, abusing someone else's server as well. That takes up a decent bit of bandwidth. Don't think so? About 1200 people on my network got spammed this weekend. When they got upset, we actually saw a mini-Slashdot effect on the advertised website (and got bouncebacks from the "remove" address--timeouts). That, and the net-abuse email support queue grew to a nearly unmanageable length. Imagine now if merchants were encouraged to send spam! I, as a representative of an ISP guarantee no one but my customers access to my servers. They pay to have email, so they correspond with others; therefore, reverse correspondence is also okay. Spammers do not pay for the bandwidth they consome, the disc space they consume, the wages for the anti-spam staff, nor the customers I could stand to lose if severely harrassed. My customers don't request that those spammers send email to them, so it's not correspondence by a social definition. Basically, what it boils down to is that the servers I maintain are private property. If I post a tresspassing notice on them (or the state sets some sort of tresspassing laws), they ought to be obeyed, and the government ought to support those rules. The government, apparently, has yet to see that the differences between electronic trespassing and physical trespassing are merely technicalities. So, yes, while you can delete messages sent to you, that message has already wronged a lot of people on its path to you. This is why I firmly support anti-spam laws.

This was a Bad Decision

[Syn.Terra]

Some exerpts from the story:

The judge held that the statute is "unduly restrictive and burdensome" and places a burden on businesses that outweighs its benefits to consumers.

Benefits? Consumers? It's SPAM! How can you consider people who get spam to be "consumers"? But wait, let's look at the rest.

The law bans spam that has misleading information in the e-mail's subject line, disguises the path it took across the Internet or contains an invalid reply address.

So THIS is restrictive? It should be someone's "right" to send you unwanted commercial email that has misleading headings, is spoofed, and you can't reply to? What business would resort to these tactics unless they were pawning off worthless crap?

Apparently the guy who had this suit called against him. Here's another quote:

He did not deny that his client had sent the 17 pieces of unsolicited e-mail the state specifically documented, but he resisted characterizing them as spam.

"That's just a derogatory term that's on the other side of the table," he said. "Direct-marketing people don't like to hear the paper mail called `junk mail.' "

But it IS junkmail, and "direct marketing" is just a good name from the other side of the table. The article says that the spam was some "special offer for only $35.95" sent to almost a million people in Washington.

This ruling was just plain bad. Spam is not helpful, it's not beneficial to anyone but the sender, and it's costly to everyone else. If Washington, who has the toughest anti-spam laws, can't convinct this guy, what good are the laws at all?

------------

It's about states, not spam

[btempleton]

I warned when this law was passed that it was a tremendous waste of the efforts of the anti-spam community. The judge is entirely right on this one.

States have no business regulating geography-independent things like E-mail or just about anything else on the internet. While a state might regulate mail *from* people within the state, the idea of a state being able to regulate anything -- spam or otherwise -- on mail to the state is an extremely dangerous precedent.

When I send E-mail, I often don't know where the receipient is. State regulation of E-mail would create a requirement that I must know, and that I must then check the laws of that state to see if I comply, or risk being sued or prosecuted there.

"Who cares if spammers have to check where they are mailing?" Indeed, who does. The problem is that states can and have passed other E-mail regulation rules, other than anti-spam. New Mexico tried a law against "indency." But I wouldn't care if the law simply approved of motherhood. The problem is we don't want to have to worry about what states the people we send E-mail to are in, or the people who hit our web sites. Or, if you like, the states that contain the routers that route our packets.

In our eagerness to fight spam in every way possible, it is a mistake to go over the top and use the wrong tools. In the end we would get 50 different sets of E-mail regulations to worry about, and a need to know where every e-mail address is before we mail to it.

That's why it does violate the commerce clause. It makes people outside Washington mailing people in an unknown place (that's also outside Washington, as it turns out) forced to check that their address is not in Washington. The state is not allowed to do that.