Last week, the Washington State Supreme Court unanimously struck down last year’s ruling from King County Superior Court Judge Palmer Robinson that Washington State’s anti-spam law was unconstitutional. Judge Robinson held the law violated the interstate commerce clause of the U.S. Constitution because compliance would require spammers to identify specific email addresses as being connected with Washington State residents. Robinson is correct – that requirement is burdensome. But what she failed to consider was the fact that identification is at issue only when the email in question uses misleading information in the subject line, has an invalid reply address, or attempts to disguise routing information. In short, legitimate commercial email, even when unsolicited, doesn’t run afoul of the Washington State anti-spam law at all, and thus the concern over identification is moot.
The Washington State Supreme Court also disagreed with Robinson’s opinion that inconsistent state laws regulating spam also create a burden on interstate commerce. The Supreme Court found that anti-spam laws in the 17 other states that have enacted such legislation have much overlap and complement each other in some respects, but there’s no actual conflict.
Justice Susan Owens expressed it best when she wrote, "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."
Will the revitalization of the Washington State anti-spam law eliminate spam? No, though it’s still an important decision that ultimately will reduce the amount of spam . The problem is that a large amount of spam is sent by small-time grifters, people who live in the cracks of society by not violating any criminal laws, changing names and addresses regularly, and staying out of the way of large companies with deep pockets. Those sort of people have always existed, but in the past their small predations have been limited. Thanks to the way the Internet magnifies the effort of an individual, these people can now aim their scams at a huge and ever-increasing audience. The economics of spamming aren’t good, but they don’t have to be, since that sort of life tends to be a hand-to-mouth existence, so an infinitesimally small success rate is sufficient.
But having anti-spam legislation available as a tool for people and companies to use against spammers adds a level of risk to the act of spamming. It’s not a big one, but since the margin of success with spam is so low anyway, the added risk doesn’t have to be enormous to be effective. More importantly, by adding some risk to spamming, the legislation can help keep honest companies honest. If it were easier to send unsolicited commercial email with misleading subjects or deceptive routing information, some companies would no doubt take that approach, and hopefully this legislation will help dissuade them.
We did see a drop in the amount of spam in 1999 that might have correlated with the passage of anti-spam legislation, but particularly when the Washington State statute was declared unconstitutional, the volume started to rise again, such that despite increasingly effective filters on our mail servers, both Geoff Duncan and I received more spam per day in 2000 than in 1998 (Geoff had an average of 7.8 spam messages per day get through server-side filters in 2000; my average was 8.2 per day). You can see how we compared to other TidBITS readers in the results of a poll from a year ago.
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One way or another, it’s clear to me that we as a society have a long way to go in learning how to live with this Internet genie we’ve released. But we’ll have to take the bad with the good, and I remain hopeful that one day we’ll be have effective social and technical mechanisms that will eliminate spam from our lives without the need for legislation.