From: "Bruce Biermann" 

Appeals court deals setback to spammers By Peter Lewis
Seattle Times consumer-affairs reporter

A state Court of Appeals has held that a spammer cannot avoid liability by
claiming he did not know that some of the millions of commercial e-mail
messages he sent would land in inboxes of Washington residents protected by
an anti-spam law.

Monday's ruling is the latest twist in a 1998 case, the first ever brought
under the then-new anti-spam statute. The case, Washington v. Heckel, has
since been cited in related litigation around the country while a variety
of officials and agencies have tried - and largely failed - to stop the
spread of spam.

Still, the 3-0 court decision is significant because it validates the
prosecution of a particular Oregon man and furnishes spam fighters with a
valuable legal precedent to pursue others, said Paula Selis, a Washington
assistant state attorney general.

"At this point, the spammers are winning the war," Selis said.
"But the more ammunition (we have) and the more people who get in the
battle ... the more the tide will turn."

The case against accused spammer Jason Heckel may not be over, however.
Heckel's lawyer, Dale Crandall, would not rule out an appeal.

"These are complex issues," said Crandall, who added he is
volunteering his services in the case because he opposes local attempts to
regulate the Internet.

"It's a well-written opinion," he said of the Court of Appeals'
latest ruling, "but I disagree with its analysis."

Earlier in its life and in connection with other related issues, the Heckel
case went before the state Supreme Court, then was appealed to the U.S.
Supreme Court, which declined to hear it.

The case got its start after the state received consumer complaints about
Heckel, who was doing business as Natural Instincts and hawking a "How
to Profit From the Internet" package costing $39.95.

The state alleged that each week over a five-month period in 1998, Heckel
sent between 100,000 and 1 million spam messages.

After analyzing some of them, the state determined Heckel had violated
Washington law by disguising the path the messages took across the
Internet, using a third party's Internet address without permission and
using misleading subject lines to entice recipients to read them.

Heckel didn't deny sending the messages but argued that his options to
determine where a particular recipient lived were very limited.

He further argued that to be held liable, the state would have to show he
had knowledge that specific e-mail addresses were registered to Washington
residents.

The court rejected that reasoning, saying buying into it would mean giving
all spammers a pass because they could always claim they had "no
specific knowledge about particular residents."

The judges further noted that Heckel did not dispute he intended to send
his message to each person who received it.

Nor did he contest that he persisted to send messages even after the state
Attorney General's Office informed him his e-mails were reaching state
residents, the court found.
The appeals court's decision upheld a trial court's summary judgment ruling
against Heckel. That ruling imposed a civil penalty of $2,000 and ordered
Heckel to pay state's attorney's fees and costs of more than $96,000 - a
figure that will rise, Selis said, while the case continues to play out in
the courts.

Dave Kramer, a California attorney who helped write Washington's anti-spam
law and who also has served as an adviser to CAUCE (Coalition Against
Unsolicited Commercial Email), said the latest ruling is significant
because it marks an important third step.

The first step was passing the law. Second was the 2001 unanimous finding
by the state Supreme Court that the law is constitutional

And now, the third, actually enforcing the law, Kramer said.

Peter Lewis: 206-464-2217 or plewis{at}seattletimes.com

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