Tuesday, March 14, 2000, 10:26 p.m. Pacific

Anti-spam e-mail suit tossed out

by Peter Lewis
Seattle Times technology reporter

In the war of words over unsolicited commercial e-mail, better known as spam, an Oregon man has won a victory over the state of Washington.

But the battle may not be over, as the attorney general ponders an appeal.

The victory came when King County Superior Court Judge Palmer Robinson dismissed a case in which the state charged Jason Heckel with violating Washington's anti-spam law. Robinson said the law, generally regarded as the nation's toughest, violates the interstate-commerce clause of the U.S. Constitution.

The case against Heckel was the first filed by the state under the 1998 law. The statute was enacted after Internet providers and consumers complained to the Attorney General's Office about the time and money they spent dealing with unsolicited commercial e-mail.

The judge held that the statute is "unduly restrictive and burdensome" and places a burden on businesses that outweighs its benefits to consumers. The case will not stand as a binding precedent unless it is upheld on appeal. The state has until April 10 to decide whether to appeal.

The ruling, handed down Friday, is likely to cause a stir in the Internet community, where spam frequently is a hot-button issue. Opponents contend spam costs computer users and Internet-service providers time and money, taking up computer memory and forcing users to spend time deleting it from their PCs.

Not surprisingly, Heckel's lawyer cheered the ruling, while the Attorney General's Office lamented it. A constitutional-law expert at the University of Washington School of Law called the ruling "highly questionable."

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.

The suit alleged that Heckel, doing business as Natural Instincts, committed all three sins when he sent spam to Washington residents. Heckel, in his mid-20s, sent between 100,000 and 1 million pieces of unsolicited e-mail per week, the suit asserted. It also alleged that each month he sold 30 to 50 of his "How to Profit From the Internet" packages, charging $39.95 each.

In addition to civil penalties of $2,000 for each violation, the complaint sought attorney's fees and a permanent injunction barring Heckel from sending spam.

However, Robinson not only dismissed the case against Heckel "with prejudice" - meaning it cannot be refiled - but signed an order allowing Heckel to present a bill for recovery of his costs and legal fees.

Robinson was unavailable for comment yesterday.

Reached in Salem, Ore., Heckel's father, Allen Heckel, said his son would have no comment. The younger Heckel now works for a computer service and support company in Salem and designs, maintains and markets Web sites for individuals and businesses, according to court papers.

Dale Crandall, a Salem lawyer who represents Heckel, called the judge's ruling correct "in modern-commerce clause analysis." He expressed confidence it would hold up on appeal.

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.' "

Regina Cullen, an assistant attorney general who argued the case, maintained the state should have the right - subject to limitations imposed by the Constitution - to redress harm done to consumers by out-of-state businesses.

She disagreed with the judge's finding that the state was asking too much of businesses by 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.

Stewart Jay, a UW professor of constitutional law, said there is "no reason why the commerce clause would prevent states from regulating spam. ... This is one of those cases where a person is accused of using an instrumentality, i.e. the Internet, to engage in activities the state has determined are harmful to the consumer."

That is not terribly different, Jay said, than "any of a wide variety of consumer-protection measures that can apply to people out of state," including telephone-solicitation scams run out of a boiler room and junk-fax operations. He called the ruling "highly questionable."

Jim Kendall, president of the Washington Association of Internet Service Providers, a trade group that works with the Attorney General's Office to maintain the electronic registry, was likewise critical of the judge's ruling.

"If the judge is going to say we're putting too much of a burden on someone who is acting unethically, I have to scratch my head and say, `Excuse me? That doesn't make sense to me,' " Kendall said.

Several other lawsuits have been filed under the state's anti-spam statute, including another by the state in behalf of consumers. In that case, the defendant, Sam Khuri, owner of Benchmark Print Supply in Atlanta, signed a consent decree, agreeing to quit sending spam, according to Cullen.

Seattle lawyer Brady Johnson has filed four lawsuits under the law, two of which remain active. He said yesterday that in none of the cases has the commerce clause raised by Heckel come up. Johnson said he hopes the state appeals Robinson's ruling.

Peter Lewis' phone: 206-464-2217.