TECH TALK TUESDAY – To spam, or not to spam … that is the question.

nancy Techie Tues 9-2-97

Whether ’tis nobler to send unsolicited mail has been determined by Washington state.
The legal opionion? Fry spam!

Washington State Rules:
Spammers Can Fry!

by Mike Martines

   When Washington passed its anti-spam law, Adam Engst hadn’t really thought of suing, even when the first e-mail from WorldTouch Networks showed up in his mailbox.

By the time the 20th e-mail showed up, he had already called his lawyer.

The new law in Washington state, only the second such law in the nation, allows everyday e-mail users to go after spammers in civil court. Even though the law is fairly narrow, the first lawsuit has already been filed, and another company already reached a settlement with a different e-mail user.

Washington may be one of the first, but chances are it won’t be the last. Other states may soon launch anti-spam efforts, and a series of anti-spam bills are being considered in Congress.

Engst, author of a number of computer books and publisher of the Internet newsletter TidBITS, filed suit on Friday in King County Superior Court against WorldTouch, a Los Angeles-based mass marketer.

Since the anti-spam bill was signed June 11, Engst, his wife, Tonya, and two contractors for his newsletter, Geoff Duncan and Jeff Carlson, have received more than 100 advertisements for Bull’s Eye Gold, a program that crawls the Web, gathering valid e-mail addresses.

“I think of this as a community service we’re doing,” Engst says at his home office near Seattle. “This is just to show people that this is an unacceptable way of doing business, and maybe they won’t do it again in Washington.”

It’s only a matter of time before others join Engst in the courts. And the state is ready to help out if need be.

“We will certainly be looking to take action against spammers,” says Janice Mairch of the state attorney general’s office. “We’re already taking complaints on our Web site, and while that’s not what we base our final decisions on, it’s our Number One indicator of who might be breaking this law.”

Washington’s law is fairly simple. In order for an e-mail to be considered true spam, it must be commercial in nature, unwanted by the user, and either the return e-mail address must be nonfunctional or the subject line must be misleading.

In other words, if you can’t tell what the mail is about by reading the subject line or you can’t reply to the the sender to tell him to remove you from their list, you can sue. The law says e-mail users can collect $500 per e-mail, and those running the e-mail server can collect $1,000 per e-mail.

“In many ways, it parallels the junk fax statute,” says Engst’s lawyer, Brady Johnson. “I think it’ll be upheld if there’s a challenge to its validity.”

The federal junk fax statute makes it a crime to send unsolicited commercial faxes, and allows for damages of up to $1,500 per fax. There’s no other criteria, and John Mozena, spokesman for CAUCE, the Coalition Against Unsolicited Commercial E-mail, says the same standard should apply to e-mail.

“Washington’s law falls short in that it still allows some forms of junk e-mail,” Mozena says. “Still, it’s a good beginning. Nevada was the first state to pass an anti-spam law, and that law is so bad that no one has yet to take action against spammers there.”

Another computer user, Bruce Miller of Seattle, has already used the law to stop a spammer and get money. Miller, a freelance writer, threatened to sue Stan Smith of Salem, Ore., who had hired an advertising outfit to send e-mails extolling the virtue of Tahitian noni juice. Smith settled with Miller for $200.

If his suit is successful, Engst stands to make a lot more. His wife and two colleagues have gotten approximately 65 e-mails ($32,000 for them and $65,000 for Engst as the server operator). Furthermore, Engst himself has gotten 37 spams ($1,000 apiece since he cannot collect as both the user and operator), including one received the day after he filed suit. Grand total so far: $134,000.

But wait, there’s more. In addition, a clause in Washington’s consumer protection law may allow him to triple the damages: $402,000.

Engst doesn’t expect to see a cent of it.

“Sure it’d be great. I’d pay off the house,” Engst says. “There are just too many things that could go wrong. It’ll be in appeals for years, they could just run off with the money, or they might not even have any money by the time we come to collect.”

WorldTouch Networks did not respond to repeated requests for comment. Its owner, Christopher Lee Knight, also has not commented on the suit. The company apparently has not stopped its commercial e-mail distribution.

Mozena says the Washington law, though flawed in his eyes, will do some good, as will a limited proposal that’s winding its way through Congress right now.

“Once people start suing, I think spammers will think twice,” Mozena says. “But we won’t be happy until all unsolicited commercial e-mail is stopped.”

Despite his lawsuit, however, Engst isn’t completely anti-spam.

“I can see there being a good spammer,” Engst says. “Someone who targets carefully, immediately removes you from the list with an apology if you ask, that sort of thing. But I don’t think it’s worth it. You’re still going to piss off 100,000 people for every four or five sales you make.”

And in Washington, those four or five sales probably won’t pay the legal costs.