Washington State Anti-Spam Law Found Unconstitutional
On 14-Mar-2000, King County Superior Court Judge Palmer Robinson ruled Washington State’s 1998 anti-spam legislation unconstitutional under the interstate commerce clause of the U.S. Constitution, holding that the law is "unduly restrictive and burdensome" on businesses. Robinson dismissed with prejudice a case brought by Washington State’s attorney general against an Oregon man using unsolicited email to promote a get-rich-quick package, and signed an order allowing the defendant to attempt to recover costs and legal fees. The attorney general’s office has until 10-Apr-00 to decide whether to file an appeal; it’s widely expected to do so.
TidBITS also filed a lawsuit in July of 1998 under the same Washington State anti-spam law. Our suit has progressed far enough that it is not affected by Judge Palmer’s ruling; we hope to be able to say more in the near future.
Washington’s anti-spam law bans unsolicited commercial email messages sent to a Washington State email address or from a computer in Washington State which use misleading information in the subject line, use an invalid reply address, or attempt to disguise routing information. Spammers are deemed to know if an address is in Washington State if available information indicates a domain is located in Washington, or if the address is included in a registry of Washington State email addresses. Judge Robinson reportedly found the requirement that senders proactively identify Washington State email addresses too restrictive; however, to meet the conditions of the statute, messages must both misrepresent themselves and be sent to a Washington address or from a computer in Washington State. An out-of-state business that sends email to Washington residents is not subject to the anti-spam law so long as it doesn’t misrepresent the subject, reply address, or routing information in the email – even if the message is unsolicited.
At this point the case has no significance in terms of precedence, and legal experts and consumer advocates are widely disagreeing with Judge Robinson’s dismissal. TidBITS joins them in calling for the state to appeal the decision to the Washington State Supreme Court. In the meantime, HR 3113, a federal anti-spam bill widely known as the Unsolicited Electronic Mail Act of 1999, passed the U.S. House of Representatives Commerce Subcommittee on Telecommunications, Trade, and Consumer Protection on 24-Mar-2000. If enacted as law, it would offer even greater consumer protections than Washington State’s anti-spam law.