State v. Heckel, 122 Wash. App. 60, 93 P.3d 189 (2004),
review denied, 153 Wash. 2d 1021, 108 P.3d 1229 (2005),
cert. denied, 126 S. Ct. 387 (2005)
[Earlier decision: State v. Heckel,
143 Wash. 2d 824, 24 P.3d 404 (2001)]
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON,
Appellant,
v.
JASON HECKEL, doing business as
NATURAL INSTINCTS,
Respondent. |
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NO. 51204-8-I
DIVISION ONE
PUBLISHED OPINION
FILED 06/28/2004
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KENNEDY, J. -- In 1998, the Washington State Attorney General's
office filed suit against Oregon resident Jason Heckel, alleging violations
of Washington's Commercial Electronic Mail Act (the Act), RCW 19.190. The
ACT does not prohibit spam as such; rather, it prohibits misrepresentation
in the subject line or transmission path of any unsolicited commercial e-
mail message sent from a computer located in Washington, or sent to an e-
mail address that the sender knows or has reason to know is held by a
Washington resident. It also prohibits use of a third party's Internet
domain name without permission of that party. In 2000, on cross-motions
for summary judgment, the trial court dismissed the State's claims,
concluding that the Act violated the Commerce Clause of the United States
Constitution. In State v. Heckel, 143 Wn.2d 824, 24 P.3d 404, cert.
denied, 534 U.S. 997, 122 S. Ct. 467, 151 L. Ed. 2d 383 (2001) (Heckel I)
our Supreme Court held that the Act does not unduly burden interstate
commerce, reversed the dismissal, and remanded the case to the trial court.
In August 2002, the State moved for partial summary judgment. On September
13, 2002, the trial court granted summary judgment to the State, and on
October 18, 2002, entered a judgment and decree imposing permanent
injunctions and a civil penalty on Heckel, and awarding attorney fees and
costs to the State.
Heckel appeals, contending (1) that the State failed to show that he knew
or had reason to know that his spam -- which contained misrepresentations
in the subject lines and used a third party's domain name without
permission -- had been sent to a particular e-mail address held by a
Washington resident, (2) that the Act as applied to him in this case
violates the Commerce Clause, and (3) that there is a factual issue for
trial regarding whether his subject lines were "misleading" under First
Amendment analysis of commercial speech. We reject these contentions and
affirm the trial court's judgment and decree.
FACTS
In 1997, Jason Heckel developed a 46-page on-line booklet entitled
"How to Profit from the Internet," which included information on setting up
an on-line promotional business, acquiring free e-mail accounts, and
obtaining software to build basic websites and send bulk e-mail. From June
to October 1998, Heckel sent between 100,000 and 1,000,000 unsolicited
commercial e-mail, or "spam," messages over the Internet each week. Each
message used one of two subject lines: "Did I get the right e-mail
address?" and "For your review - HANDS OFF!" Clerk's Papers at 39. The
text of each message was a sales pitch for his booklet, priced at $39.95,
and included an order form listing the mailing address for Heckel's Salem,
Oregon business, Natural Instincts.
In June 1998, after receiving complaints from Washington recipients of
Heckel's messages, David Hill of the Attorney General's Office sent Heckel
a letter advising him of Washington's new law regarding commercial e-mail.
On or around June 25, 1998, Heckel telephoned Hill for more information.
During their conversation, Hill explained the provisions of the Act and
procedures that bulk e-mailers can use to identify Washington e-mail
address holders. Hill specifically referred Heckel to the Washington
Association of Internet Providers on-line registry, where Washington
residents who do not wish to receive spam can register their e-mail
addresses, and thus where responsible e-commerce businesses can find lists
of Washington e-mail addresses. After this conversation, Heckel did
nothing to change his spamming procedure, and consumers continued to file
complaints with the Attorney General's Office regarding Heckel's spam.
Hill created a complaint matrix detailing 20 such complaints, and
indicating that at least 16 involved messages received from Heckel after
June 26.1 At least one of these
complainants had previously registered her e-mail address at the on-line
registry above mentioned, before she received Heckel's spam.
To send his spam, Heckel used at least 12 different Internet addresses with
the domain name "juno.com," which accounts were generally cancelled by Juno
within two days of his bulk e-mail transmissions. When Juno would shut
down one of Heckel's accounts, Heckel would simply open a new one, and send
out more batches of spam. Some recipients attempted to reply to Heckel's
spam and failed -- in some cases because Juno had already terminated the
account or accounts from which the spam had been sent.
Some recipients stated that the domain name Heckel used to send the spam
was different from the domain identified in the message. In particular, 9
messages indicated that they originated from "13.com" but the "message-id"
display demonstrated that they had actually been transmitted from a
different domain. The owner of the inactive domain name of "13.com" since
1995 submitted an unrebutted declaration stating that he had never
authorized Heckel to use the domain name.
Heckel sold 17 copies of his booklet to Washington residents before
the State filed its suit. In September 1998, Heckel cashed a check sent by
a Washington resident in response to one of his spam messages.
In response to the State's motion for summary judgment, Heckel did not
contest any of the facts above described. The trial court granted the
State's motion on September 13, 2002, and on October 18, 2002, granted
injunctive relief, imposed a civil penalty of $2000, and ordered Heckel to
pay the State's attorney fees and costs of $96,197.74.
ANALYSIS
Viewing all facts in the light most favorable to the party challenging the
summary dismissal, this court reviews a trial court's grant of summary
judgment de novo. Heckle I, 143 Wn.2d 824, 831-32, 24 P.3d 404 (2001).
Summary judgment is proper if there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Kruse v.
Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373 (1993); CR 56(c). A legislative
act is presumed constitutional, "and the party challenging it bears the
burden of proving it unconstitutional beyond a reasonable doubt." Heckel
I, 143 Wn.2d at 832 (quoting State v. Brayman, 110 Wn.2d 183, 193, 751 P.2d
294 (1988).
The Commercial Electronic Mail Act provides in pertinent part:
(1) No person may initiate the transmission, conspire with another to
initiate the transmission, or assist the transmission, of a commercial
electronic mail message from a computer located in Washington or to an
electronic mail address that the sender knows, or has reason to know, is
held by a Washington resident that:
(a) Uses a third party's internet domain name without permission of
the third party, or otherwise misrepresents or obscures any information in
identifying the point of origin or the transmission path of a commercial
electronic mail message; or
(b) Contains false or misleading information in the subject line.
(2) For purposes of this section, a person knows that the intended
recipient of a commercial electronic mail message is a Washington resident
if that information is available, upon request, from the registrant of the
internet domain name contained in the recipient's electronic mail address.
RCW 19.190.020 (emphasis ours).
Heckel does not deny that he violated RCW 19.190.020(1)(a) by using
the domain name "13.com" without the permission of the name's owner,
thereby misrepresenting or obscuring the point of origin or the
transmission path of at least 9 of his spam messages sent to Washington
residents. Instead, Heckel contends that the State failed to present
evidence that he sent any e-mail "to an electronic mail address that {he
knew}, or {had} reason to know, {was} held by a Washington resident."
In support of this assertion, Heckel first argues that the only way the
State could prove that he had a "reason to know" is by proving facts to
satisfy RCW 19.190.020(2), that is, by presenting evidence to demonstrate
that the information regarding Washington residency was available from the
registrant of the Internet domain name of each particular e-mail address at
issue.
Not only does Heckel fail to cite any authority for this position, but also
we find his proposed reading of the statute absurd. RCW 19.190.020(2)
states that a person knows -- in other words, actual knowledge is
imputed -- if residency information is available from the domain name registrant.
The statute does not state that proof that the residency information is
available from the Internet domain name registrant is the exclusive means
of proving knowledge under the statute. Moreover, this section says
nothing about what evidence is sufficient to demonstrate that a sender had
a "reason to know" that an e-mail address was held by a Washington
resident. Finally, there is nothing in the record to indicate that the
State intended to rely on RCW 19.190.020(2) to show Heckel's knowledge
here.
Relying on our Supreme Court's analysis in Heckel I of American Libraries
Ass'n v. Pataki, 969 F. Supp. 160 (1997), Heckel next contends that the Act
and the Commerce Clause required the State to prove he had knowledge as to
specific e-mail addresses. In American Libraries, the court held that a
New York statute that made it a felony to use a computer communication
system to display or distribute sexually explicit content to minors
violated the Commerce Clause. 969 F. Supp. at 169. The statute was
overreaching in that applied to any type of Internet activity -- even
websites or chat rooms where individuals posting content that would be
legitimate for adults have no control over future access by minors, in New
York or anywhere else. As our Supreme Court observed in Heckel I, that
case is distinguishable because here, the Act is limited to deceptive
unsolicited commercial e-mail messages sent to a Washington resident -- in
other words, the sender actually intends the recipient to access the
content. Heckel I, 143 Wn.2d at 840.
Heckel argues that the Court's statement, "the Act reaches only those
deceptive UCE messages directed to a Washington resident," Heckel I, 143
Wn.2d at 840, indicates that to satisfy the Act and the Commerce Clause the
State must prove that he knew that specific e-mail addresses were
registered to Washington residents and that here, although he knew based on
his conversation with Hill on June 25 that some of his e-mails had been
received by unidentified Washington residents, the State failed to prove
that he had specific knowledge that any particular addresses belonged to
Washington residents as required by the statute.
Again, if we were to interpret the Act the way Heckel suggests, no spammer
sending deceptive e-mail could ever violate the Act as long as he were to
use a bulk e-mail program to harvest large numbers of addresses without
regard to residence of the owners, because he could always claim that he
had no specific knowledge about particular recipients. But Heckel does not
dispute that he actually intended to send his message to each person who
received it. He also does not dispute that Hill advised him about the Act
and that the Attorney General's Office had received complaints from
Washington residents who had received his e-mail. He also does not dispute
the State's evidence that more Washington residents actually received his
e-mails after his conversation with Hill. Despite his knowledge that the
bulk e-mail software he was using to send out his spam had gathered
addresses and sent e-mail to Washington residents, Heckel failed to take
any action whatsoever to determine whether any of his intended bulk e-mail
recipients were Washington residents or to change his practices to comply
with the Act, and in fact he continued to send the same e-mail messages to
more Washington residents. The trial court properly found that these facts
were sufficient to demonstrate Heckel's knowledge that he was in fact
directing deceptive spam to Washington residents.
The State urges this court to adopt the reasoning of the trial court and at
least two federal district courts and hold that a spammer sending millions
of e-mails over the Internet has reason to know that he could be "ha{u}led
into court in a distant jurisdiction to answer for the ramifications of
that solicitation." Internet Doorway, Inc. v. Parks, 138 F. Supp. 2d 773,
779-80 (S.D. Miss. 2001); Verizon Online Servs., Inc. v. Ralsky, 203 F.
Supp. 2d 601, 618 (E.D. Va. 2002). Heckel urges a rejection of this
"statistical argument," arguing that the Act requires a "particular" or
"specific" e-mail address of a Washington resident and that reasonable
minds could differ on whether sending any particular number of e-mail
messages must statistically impose a conclusive presumption that some of
those would be directed to the addresses of Washington residents. But
Heckel does not dispute that he sent between 100,000 and 1,000,000 messages
per week over a period of at least four months. Based on these numbers, we
agree with the State and conclude that Heckel had reason to know that his
spam would be directed to Washington residents.
The State also contends that Heckel had reason to know that his spam was
reaching Washington residents because some of them were listed at the
website of the Washington Association of Internet Service Providers
(WAISP), where Washington residents who do not want to receive spam can
register. See, Heckel I, 143 Wn.2d at 837 n.13. Heckel responds that
evidence that recipients2 of his
spam were registered with WAISP is insufficient to prove that he had reason to
know they were Washington residents because there was no evidence in the record
on how the registry works and reasonable minds could differ on whether accessing
the registry is unduly burdensome or whether an advertiser ought to be required
to check one or more registries before sending out e-mail.
Again, we agree with the State. As of June 25, Heckel knew that his spam
was reaching Washington residents and that they were complaining to the
Attorney General. He knew that the Act prohibited the kinds of e-mail he
was sending. He also knew, based on his conversation with Hill, that the
WAISP registry listed Washington residents that did not want unsolicited
commercial e-mail. Because Heckel fails to identify any material fact for
trial regarding his knowledge as above described, and because reasonable
minds could not find that he did not have reason to know that he was
sending e-mail to Washington residents, summary judgment was proper.
Heckel acknowledges in his reply brief that our Supreme Court has held
that the Act does not facially violate the Commerce Clause but argues that
it failed to consider whether it violates the clause as applied in this
case. Relying on Quill Corp. v. North Dakota, 504 U.S. 298, 112 S. Ct.
1904, 119 L. Ed. 2d 91 (1992), Heckel contends that his lack of ties with
the State of Washington -- no employees, representatives, or physical
facilities -- indicates a lack of a sufficient nexus with the State, such
that he cannot be subject to the Act. But as the State points out, in
Quill, the question was whether North Dakota violated the Commerce Clause
by imposing an excise tax on an out-of-state company operating a mail order
business. Because the Act does not involve taxation and the burden it
imposes is slight in comparison, Quill is inapposite.
Moreover, Heckel reads Heckel I too narrowly. In Heckel I, 143 Wn.2d at
833, the court explained not only that the Act is not facially
discriminatory but also that it applies evenhandedly to both instate and
out-of-state spammers.
Finally, Heckel makes no reasoned argument showing how an act that
prohibits only deceptive spam and that does not thereby violate the
Commerce Clause on its face could possibly violate the Commerce Clause as
applied to Heckel's deceptive spam. We conclude that the Act, as applied
to Heckel in this case, does not violate the Commerce Clause.
Heckel also contends that the Act violates the First Amendment because
it is vague and overbroad. Heckel also attempts to create an issue of
material fact for trial by asserting that the subject lines on his e-mails
were not misleading, particularly when viewed with the body of the e-mail.
Commercial speech is entitled to First Amendment protection if it is
not misleading. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of
New York, 447 U.S. 557, 566, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980). The
Act prohibits unsolicited commercial e-mail with false or misleading
information in the subject line. RCW 19.190.020(1)(b). The trial court
concluded that reasonable minds could not differ with the conclusion that
Heckel's two subject lines, "Did I get the right e-mail address?" and "For
your review - HANDS OFF!", were deceptive and misleading when the body of
the e-mail consisted of an unsolicited advertisement. We agree with the
trial court.
Heckel does not claim that his spam was anything other than commercial
speech. To demonstrate that the subject line is not misleading, Heckel
urges this court to consider the first line of the body of the e-mail or
the whole message of the e-mail rather than viewing the subject line alone,
"artificially segregating the subject line from the rest of the
communication and banning creative advertising to entice potential
customers to read the rest of the commercial speech." Brief of Respondent
at 35. But the Act does not regulate the body of the e-mail, only the
subject line. Here, the subject line was clearly designed to entice the
recipient to open the message, not with creative advertising as Heckel
contends, but by enticing the recipient to believe that the message might
be from a friend or acquaintance or business contact who is trying to "get
the right e-mail address" or who is sending something confidential, rather
than a commercial advertisement. The trial court did not err.
Heckel's reliance on Reno v. Civil Liberties Union, 521 U.S. 844, 117
S. Ct. 2329, 138 L. Ed. 2d 874 (1997), is equally unpersuasive. Reno does
not involve commercial speech, but concerns sexually explicit
communications on the Internet, and a federal statute that used terms such
as "indecent" and "patently offensive."
Because the Act is narrowly tailored to regulate only deceptive
commercial speech, which is not protected by the First Amendment, the Act
is not overly broad. Neither is the Act unconstitutionally vague.
Contrary to Heckel's argument, the Act's prohibition against "misleading"
subject lines or transmission paths is not vague. Indeed, the United
States Supreme Court used the word "misleading" in Central Hudson, 447 U.S.
at 566 as part of the appropriate standard in determining when commercial
speech is constitutionally protected: "For commercial speech to come
within {the protection of the First Amendment} it at least must concern
lawful activity and not be misleading." Id. See also, City of Yakima v.
Irving, 70 Wn. App. 1, 851 P.2d 724 (1993) (holding that an ordinance that
prohibited making "`misleading" police reports not unconstitutionally
vague).
CONCLUSION
The trial court did not err in granting summary judgment to the State.
Heckel's spam clearly fell within the hard core of the prohibitions
contained in the Act: The spam was accompanied by misleading subject
lines; was transmitted along misleading paths, and 9 of the spam messages
used the domain name of a third party who had not given permission to
Heckel to use that inactive domain name. Heckel received actual notice
from the Attorney General that his spam violated Washington's Act and that
it was in fact being received by Washington residents. Mr. Hill explained
to Heckel how he could go about learning the e-mail addresses of Washington
residents who do not wish to receive spam at all -- let alone deceptive
spam. Not only did Heckel fail to change his procedures for disseminated
spam, but he also failed to change his misleading subject lines, a means by
which he could have brought his advertisements within the parameters of the
Act -- insofar as misleading subject lines are concerned, anyhow. The Act
does not violate the Commerce Clause, either facially or as applied to
Heckel. The Act does not violate the First Amendment, either facially or
as applied. The Act is not unconstitutionally vague. We affirm the trial
court's summary judgment ruling and the decree that was subsequently
entered.
_______________
1 Three entries on the matrix do not indicate the date
of receipt and one was received on June 22, 1998.
2 One spam recipient's affidavit indicates that
she was registered with WAISP and Hill's complaint matrix indicates that 11 other
recipients were also registered with WAISP.
Court of Appeals Division I
State of Washington
Appeal from Superior Court of King County
Docket No: 98-2-25480-7
Judgment or order under review
Date filed: 09/13/2002
Judge signing: Hon. Douglass North
Authored by Faye C. Kennedy
Concurring: C. Kenneth Grosse, Ronald E. Cox
COUNSEL OF RECORD
Counsel for Appellant(s)
Dale Leslie Crandall
Attorney at Law
280 Court St NE Ste 14
Salem, OR 97301-3443
Counsel for Respondent(s)
Owen F Jr Clarke
Attorney at Law
716 E 25th Ave
Spokane, WA 99203-3331
Paula Lillian Selis
Ofc of The Atty General
900 4th Ave Ste 2000
Seattle, WA 98164-1076
