Washington Spam Law Upheld

An anonymous submitter sent in news that the Washington state Supreme Court upheld Washington's anti-spam law today. The law requires truthful information on all commercial emails sent from Washington state or to a Washington resident - commercial emailers may not disguise the origin of their messages (but aren't prohibited from sending UCE if they don't try to disguise themselves). It is a civil law, not a criminal one. Since this affects residents of other states who email into Washington, a spammer sued under the law by the state of Washington claimed that this was interfering with interstate commerce - regulating interstate commerce is a power reserved to the Federal government, not states. The trial court agreed. Washington appealed. The Washington Supreme Court held that requiring accurate identification information actually facilitates interstate commerce rather than burdening it. The decision is interesting, because several state internet censorship laws have been struck down due to their effects on residents of other states - it's worth reading for anyone interested in internet legal issues.

Comments

Spammers already have it covered

[Sabalon]

From one of my messages in my spam folder:


This message is sent in compliance of the proposed bill
SECTION 301. per Section 301, Paragraph (a)(2)(C) of S.
1618. This message is not intended for residents in the
State of Washington, screening of addresses has been done to
the best of our technical ability.


See...not only does it follow a proposed (and struck down if I recall) house bill, but gosh darnit - they've done the best they can to make sure they know who they are spamming.

Now, if you'll excuse me, I need to reply to this guy because I am interest in making easy $$$ at home that involves increasing my penis size with the help of hot willing 18 year old girls.

Of course the other spam I got, I will simply reply and I'll never need to worry about getting spam from them again.

See, spammers are nice friendly people.

Re:The beginning of the end for free speech.

[John Whitley]

Whether you agree with SPAM or not, it's a constitutionally protected right of the sender, just like gun ownership.

(Ob. disclaimer: IANAL)
I don't buy this. The argument against spam is NOT content based, or speaker based. It's recipient based. To my mind, spamming incorporates a sense of personal trespass or invasion of privacy. It seems that an anti-spam law falls in the same category of laws which deal with harassment, stalking, etc. Moreover, we already permit some sensible limitations on free speech -- notably libel and slander laws. While it is important to avoid slippery slopes which would eliminate free speech, we must also sometimes hack the social contract to patch bugs. 8-)

What about email to servers in Washington?

[Dilly Bar]

How does this affect email being sent to non-Washington residents who access their email from servers in Washington (IE Hotmail perhaps?) I for one would like it very much if this law applied to email recieved at Hotmail

Re:What about email to servers in Washington?

[The Silicon Sorceror]

The law only applies to Washington consumers and people sending e-mail from Washington. E-mail stored on a server in Washington would qualify as e-mail "routed through" Washington, a situation that is explicitly explained in the document. Read it:

"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."

Re:The beginning of the end for free speech.

[ibbey]

The same is with spammers; they can send out adverts, but not to people who do not want them.


Actually, the spam law doesn't even go that far. You simply can't shoot into people's home's while wearing a mask-- to take your analogy to the next step...

Good!

[brianvan]

Although I'm not one for censorship, the idea that someone has to IDENTIFY themselves when they say something is a fine concept in my eyes. Yes, there are certain cases where anonymity is a nice thing, but it's a priviledge, not a right in my eyes.

In this context, commercial entities must not send unsolicited mail without providing some sort of identification of origin... but how bad could that be? I mean, how shady must a company be to provide a service without providing accurate reply-to information? Perhaps I do approve of anonymity in private communications, but certainly not in commercial ones... I like to be able to opt-out of spam. And I do receive newsletters and e-mails from businesses intentionally, so I'm not against the concept of commercial mail; this ruling only helps us out.

As for the people who now have to reveal themselves to their victims: oh boo-hoo. You had the opportunity to use a novel marketing mechanism, and your industry blew it by abusing the priviledge, and now we want to take it away from you because of that. Or, not even take it away, but give ourselves some way to avoid the inconvenience caused by some of you porn/penis enlargement/make money/win a trip to Portugal freaks.

I look forward to commercial e-mail that doesn't abuse my attention span or my inbox in the future.

Censorship laws are orthogonal...

[Tackhead]

> The Washington Supreme Court held that requiring accurate identification information actually facilitates interstate commerce rather than burdening it.

Whoa, a court exhibits clue! Not lying to your customers is a Good Thing!

> The decision is interesting, because several state internet censorship laws have been struck down due to their effects on residents of other states - it's worth reading for anyone interested in internet legal issues.

Interesting reading, yes, but I don't see the interstate commerce clause implications here as having any bearing on censorship cases.

• Censorship can be bad for interstate commerce. 50 states, thousands of communities, and thousands of decency standards. (How can anyone sell pr0n across state lines in that environment? ;-)

• Not lying to your customers about your business is good for interstate commerce.

IANAL, and courts have made some pretty illogical decisions in the past, but I don't see how requiring someone not to forge headers (which has been ruled as something that facilitates interstate commerce) strengthens the (IMHO insane) argument that a patchwork of mutually-conflicting decency standards (whether in law books or in RSACi-style webpage ratings) also facilitates interstate commerce. It's a total non-sequitur.

Re:You are all happy that....

[Tackhead]

> The government is passing laws that you must give your real identity when sending email... This is going to set a president againt future legislation... Next anonymous emailers will go, then companies like yahoo mail will have to ask for identification.

This ruling does no such thing.

Quoth the court:

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); [ ...and many other costs are imposed upon the user. Spam is like getting collect calls from telemarketers and you can't refuse the charges. This cost-shifting is a Bad Thing ]"

If the headers weren't forged (i.e., if the spammer had sent them through yahoo.com, even if he used a pseudonymous account at Yahoo), recipients could reply to him and effectively opt-out. (Not that this would be a smart thing to do, but I digress.)

This is a precedent against forgery with intent to deceive, not anonymity.

If I mail you through an anonymous remailer, the headers are stripped and re-inserted to facilitate anonymity, not to deceive you about my identity. Indeed, I'm quite capable of sending a PGP block through an anon-remailer that proves to you who I am, while making it impossible for any other reader of the message to know who I am or read its contents.

The talk about the "Pike balancing test" is important here:

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

WA spam law:

• Legitimate local purpose: Stopping the cost-shifting burden imposed on ISPs, users, and owners of forged domain names. By requiring non-forged headers in spam, we decrease the economic value of spamming, and thereby reduce the amount of spam, and the amount of shifted cost.

• Could we do it with less impact on interstate activities? Maybe, but probably not. The impact isn't that large because it applies to in-state and out-of-state spammers.

Your supposed "you must always use your real identity when mailing anyone, anonymous remailers will be illegal" law:

• Local public interest: Not much that I can see. What's threatened by anonymous mail? OK, trot out the usual "Druggies, pedophiles and terrorists use it", but any lawyer will also tell you that anonymous speech is protected. (Anonymous commercial speech, much less so!)
• Could this also be done with less impact on interstate commerce? Well, probably not.

The balance here could go either way, depending on the judge. But it's a much closer call to make. The cost-shifting imposed by spam is well-established, and has no public benefit; prohibiting it is (by definition) a Good Thing. Pseudonymous (and anonymous) speech, while they can be abused (the Government will trot out the usual Three Horsemen: terrorists, druggies, and pedophiles), also has a rich history in our country - and protecting pseudonymous and anonymous speech has a public benefit. It's far from clear that a law prohibiting all anon/pseudon speech has sufficient public benefit to justify any impact on commerce whatsoever.

Basically, it's even farther from clear that the Pike test would apply to your proposed law, because the First Amendment issues might trump Commerce Clause issues altogether.

(And to the obligatory spammer who says "but my spam is frea speach", I point out that non-commercial speech has consistenly been afforded greater First Amendment protection than commercial speech. Deal.)

Make Money Fast in Washington

[lildogie]

If you sue a Make Money Fast spammer, and win a big award, then the spam wasn't false in the first place.

Russell, meet Whitehead. Whitehead, Russell.

Re:Interstate Commerce My A$$

[Speare]

Here's just a sample of the spam I got today...

• Here is just a sample of the road traffic that passed my driveway today. These people reduce my access to the road for a few seconds at a time, and that time adds up fast. I pay taxes for unfettered access to my street, dammit.

• [list of 50 license numbers and car descriptions]

• This is probably familiar to most of us.
• Bastards. Passersby should be taken out back and shot. Road rage might not be perfect but it's a good start.

Really, guy, switch to a decaf brew. Set up filters to delete the stuff that you do get. I can see ISPs grumbling about bandwidth costs, but your reaction is a wee bit overdone.

Re:The beginning of the end for free speech.

[bopo]

By passing a law that prevents the sending of some kinds of email, the government is limiting the free speech of both individuals and companies. Whether you agree with SPAM or not, it's a constitutionally protected right of the sender, just like gun ownership.

Well, no. The courts have recognized that different types of speech exist, and they are given different levels of protection. Most spam would be classified as commercial speech, similar to print/broadcast advertisements and product labeling, which does not have the fullest protection under the law. GM can't say that it's trucks get 80 miles/gallon if they don't, and the Cheerios people can't claim to make your acne go away if they can't.

The actual act of sendingspam might be a constitutional right (this is a different issue for a different discussion), but as commercial speech, the government gets some control over what you say.

Re:The beginning of the end for free speech.

[13013dobbs]

What's even more interesting is that this is, in some respects, an internet censorship law. I don't believe that the government should have a hand in regulating what passes over the internet, and this is just the beginning, folks. This law sets a precedent.

The spammers can still email people; they just can't forge their headers. The spammers can also advertise via other mediums as well.

By passing a law that prevents the sending of some kinds of email, the government is limiting the free speech of both individuals and companies. Whether you agree with SPAM or not, it's a constitutionally protected right of the sender, just like gun ownership.

the Supreme Cout has found that companies don't have the same free speach rights as people. While you are right in the fact that people have the right to bear arms; they do not have the right to randomly fire those guns into people's homes. The same is with spammers; they can send out adverts, but not to people who do not want them.

The only thing that will truely solve the SPAM problem are market forces. When people decide that having to relay spam is costing them more money than it would to fight said abuse of their systems, we will see unsolicted commercial email disappear pretty darn quick. In the meantime, the government just gets in the way and trys to speed a process that really can't be controlled by any one entity.

Due to the spammers low start up costs, market forces are not going to do much to them. Spammers do what they do cause it is cheap and after a few sales, you have covered your costs. If there is a couple of $500 fines levied against you every spam run, you are not going to spam people for very long. That is the only thing that will stop a spammer (outside of death or prison) is when it costs more to spam that what they make of the spamming.

Re:The beginning of the end for free speech.

[rgmoore]

But you have the situation wrong. The law does not ban spam; the right of people to send spam is preserved. It makes it illegal to send spam if you:

use a third-party's domain name without permission, misrepresent or disguise in any other way the message's point of origin or transmission path, or use a misleading subject line.

IOW, it makes it illegal to send fraudulent spam. There is no constitutionally protected right to engage in fraud, so this is not an attack on free speech.

Ha.. "the best of their ability" my foot

[Sawbones]

This message is sent in compliance of the proposed bill SECTION 301. per Section 301, Paragraph (a)(2)(C) of S. 1618. This message is not intended for residents in the State of Washington, screening of addresses has been done to the best of our technical ability.

I've gotten a couple of emails with this in it at my university account. How mind bendingly dumb would the filterer have to be to miss @u.WASHINGTON.edu addresses :)

Go Dawgs

common Sense

[Alien54]

Who would have thought that honesty in commerce would enhance commerce?

I wonder when someone will get a ruling against that.

Having seen some late night infomercials, I suspect that an awful lot of the money made in spam is made by the people who promote systems to advertise using spam, and that most small time operators do not get much out of it anyhow.

Check out the Vinny the Vampire comic strip

Re:The beginning of the end for free speech.

[DarkEdgeX]

Merriam-Webster defines fraud as this--

Main Entry: fraud
Pronunciation: 'frod
Function: noun
Etymology: Middle English fraude, from Middle French, from Latin fraud-, fraus Date: 14th century
1 a : DECEIT, TRICKERY; specifically : intentional perversion of truth in order to induce another to part with something of value or to surrender a legal right b : an act of deceiving or misrepresenting : TRICK
2 a : a person who is not what he or she pretends to be : IMPOSTOR; also : one who defrauds : CHEAT b : one that is not what it seems or is represented to be
synonym see DECEPTION, IMPOSTURE

Now, reading the link in the story (the ruling), it appears this guy was putting false return addresses (this falls under the definition of "fraud"), listing false subject lines in his messages (also "fraud"), and when he DID list valid e-mail addresses, they were usually shut down within 1-2 days because the hoster realized it was a spam account.. he knew this happened, and he never checked the accounts or removed people from his listing (since I'm assuming he made some offer to remove people, that would be "fraud" too).

Maybe your version of "fraud" is different from mine, but I wouldn't say it's an awfully strong word for the situation.

Is SPAM speech?

[ubernostrum]

Or is sending it an exercise of a First Amendment right? That's debatable...unless you view it as humor, the typical "Make $$$ fast while growing your dick six inches and seeing Britney Spears naked, and also lose fifty pounds in a week" email isn't an act of profound creative expression...and while you have a right to say what you like, do you have a right to force me to listen to it? Do I get a choice as to whether my server accepts the message and shows it to me? In most situations I don't - I'm even paying to have your "speech" inflicted on myself. Does your (and note here I'm using "you" as a generic pronoun, not referring to you the author of the above post personally) right to free speech include forcing your email on me, if only for the time it takes the server to apply my filters and send it to my Trash folder? Or is SPAM really just commercial junk, and thus subject to regulation like any other sort of commercial junk?

That said, you raise an interesting point about it being censorship (though I'm not sure I buy it), one not often considered, and I hope you get modded up for it...this needs to generate some discussion.

Re:How long will it last?

[Compulawyer]

This opinion WILL last - it is an en banc (meaning: the entire Court heard/participated)decision. Because it is a state Supreme Court interpreting the federal Conbstitution, it does have the possibility of reaching the US Supreme Court and being overturned there. However, given the number of cases the USSC hears, this scenario is highly unlikely - especially if the justices at the USSC think the decision is right. The spammer would have to argue that falsifying headers/misleading suject lines promote interstate commerce - a ridiculous proposition. IMHLO (I am a lawyer, so I can give a legal opinion) this decision will last and Washington's statute will serve as a model for other states because it has withstood this constitutional challenge.

Law bans most speech

[bitchx]

I've disliked the Washington law since they first passed it, for two main reasons.

1. It justifies and allows spams.
Just give a valid email address and a header that is true and you're good to go!

2. It creates an incredible burden on the spammers who were just sanctioned
According to the court in the ruling, the reason why the spammers addresses, which he gave, were not valid were because they were canceled.

Sorry, but that's just stepping on both sides of the fence. The court argues that real info makes buisness easier, but if spammers give their real info out, their accounts are canceled. Now, I'm not saying that spammers should be allowed to spam, but it's wrong for the government to have laws and rulings that say one thing and do another.

In effect, the Washington law reads as a ban on spam (You have to use your real info, and if your account goes away, your problem!). But, that's not what the court argues, and it's not the intention of the lawmaker.

I would much rather see a better more thought-out law. Additionally, it makes it impossible for the spammers (however bad they are) to comply - if you spam, you lose your account, and if you spam without account you violate the law. It's great from a logical way to ban spammers, which I love, but it's wrong from the premise that our legal system should be honest.

Just have the law say "spam is banned." It's bad that they have different more confusing words with the same effect. Boo.