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January|February 2003
Almost Infamous By John Swansburg
A Lawyer's Limits By Jonathan L. Hafetz
Block Sender By Beth Taylor
Lone Star By Jordan Smith
Neolawisms By Adam Hanft
Off Target By James B. Jacobs
New War, Old Law By Stéphanie Giry

Block Sender

By Beth Taylor

Bruce Miller, a 51-year-old website manager with a mustache and sandy hair, parked his blue van, which has a "NO SPAM" license plate, in front of the King County District Court in Shoreline, Wash. He was wearing a yellow vest, cradling a stack of papers, and hoping for a showdown with Washington Mutual, the large bank he was suing for $3,530 over a spam e-mail.

Judge Douglas J. Smith was presiding, and his first impulse was to get Miller out of his courtroom. "We don't take those here," he said of the suit, suggesting county court in Bellevue, a tech-heavy town east of Seattle. Then, taking a second look at the papers before him, he realized that he probably had no grounds for bouncing the case. He grudgingly listened to Miller's story.

In May, Miller explained, he received an e-mail hawking bargain-rate mortgage loans. The sender wasn't identified, and Miller's reply bounced back. So he went to the website advertised in the e-mail and filled out a form. The next day, he received an e-mail from Robert Bushnell, a Washington Mutual loan consultant, offering to discuss mortgage rates. Although the bank didn't send the original message, Miller argued that the sequence of the e-mails showed that Washington Mutual was supporting the spammer, which a 1998 Washington law forbids.

Knitting his eyebrows, Smith leafed through his book of Washington statutes for a few minutes and then turned to Miller. "Do you have a copy of this statute?" he asked. "This is fairly new." The four-year-old anti-spam law was upheld by the State Supreme Court in 2001. Saying he'd have to look up the law before ruling, Smith closed the hearing. Later that day he dismissed the case, telling Miller to go to court in Seattle, the location of Miller's post office box and Washington Mutual's headquarters. Miller asked Smith to reconsider, pointing out that he got the e-mail in Shoreline and that the bank had a branch office there. Smith refused.

Miller has requested a new trial from another judge. He's also vowed to ask the State Commission on Judicial Conduct to investigate Smith. Miller looked up the statute cited on the judge's order only to find there was no law with that number. "The legislature and the citizens of King County are not served by Judge Smith, who is paid $116,135 per year . . . to cite nonexistent laws," he said.

Washington lawmakers passed the unsolicited Commercial Electronic Mail Act in 1998 under pressure from the state's dot-commers and computer junkies. Twenty-five other states have passed similar laws, but many of them are weak: They apply only to in-state senders, limit fines to $10 a message, or don't allow individuals to sue. The Washington statute, by contrast, allows state residents to sue spammers who send unsolicited commercial e-mails with misleading subject lines or return addresses, as well as those who "assist the transmission" of spam. It doesn't matter whether the messages come from inside or outside the state, as long as the sender knows or could find out that the recipient lives in Washington.

In blessing the law, the Washington Supreme Court rejected the argument that it restricts commerce between the states. The ruling left spam fighters like Miller free to sue senders of junk e-mail, or anyone who knowingly assists them, for $500 per message, or for damages like the cost of wasted time.

To some judges in Washington, however, it's the spam fighters who are wasting time—their time. Since the Supreme Court ruling, a small but growing group that includes Miller has filed dozens of spam suits in courts around Seattle. Some have demanded millions of dollars in a single lawsuit, but so far the biggest court victory has been a $31,575 award against a spammer in Florida.

Most of the time, judges treat the spam fighters like money-grubbing opportunists or don't take them seriously. Judges like Douglas Smith get rid of spam cases by claiming their courts lack jurisdiction to hear the disputes. Others are harsher. Judge Eileen Kato of Seattle District Court recently ordered Joel Hodgell, a 37-year-old self-employed Seattle business consultant, to pay $6,925 to cover the legal fees of a company called SDI Labs, whose website pitches "barely legal" muscle-building products.

In about ten other spam suits, Hodgell has asked for a total of $15 million in damages, but so far has collected only about $1,000. "I really doubt I'll make a penny," he says of his litigation forays, ticking off his court fees and other expenses. "I'm $6,000 in the hole."

Spam fighters accuse reluctant judges of being Luddites who don't understand that junk e-mail is a big problem. Spam accounted for 36 percent of all e-mail from July 2001 to July 2002, according to Brightmail, a spam-filtering company. Many messages hawk pornography or other questionable products. Spammers find their targets by scanning online newsgroups and web pages for users' e-mail addresses or by running computer programs that randomly generate addresses. Junk messages can easily pile up in e-mail accounts and freeze them. Spammers also often "joe job"—use an unsuspecting person's mailbox as a return address. Angry recipients who write back to "flame" (tell off) the spammer jam up someone else's e-mail account.

Unlike the unwanted mail that you get through the post office, spam circulates at no cost to senders: Internet service providers are forced to pay for the bandwidth it gobbles. Those costs get passed along to consumers in the form of increased subscription rates for ISPs. Spam is "disruptive and it's theft," Miller says. "It's advertising that's postage-due."

The Washington attorney general's office brought the state's first spam suit against Jason Heckel, accusing him of sending millions of e-mails pitching a booklet, "How to Profit from the Internet," with a misleading subject line: "Did I get the right e-mail address?" That case won the go-ahead ruling from the state supreme court. But the attorney general's office has pursued only two other cases, so enforcement is mostly left to Miller and other outraged spam-ees.

A freelance writer and editor who used to be involved in "the nonsmokers' rights movement," Miller says he's on a crusade not just to make the spammers pay, but also to reclaim the Internet. "They say, 'Oh, you've got a good racket going, you're just extortionists,' " Miller recounted in the voice of his foes. "I say, 'Hey, you've got a great racket going, using people's resources for your services.' "

By last spring, Miller had won $5,600 in out-of-court settlements. He has a website, www.aboutspam.com, which is packed with tips for suing spammers, and he's planning to publish an "action guide for spam victims." In response to the charge that he went after Washington Mutual because he knew it could pay, Miller's answer is yes. "They responded to my e-mail," he says. "I think I'm doing the right thing by going after them, to put pressure on the companies that are out there getting sales leads" on the Internet.

When they first hit the courts, the spam fighters were computer-savvy but courtroom-challenged, and several of their early cases got tossed out for technical errors. But spam fighters met each other in person or online, through anti-spam websites, and learned from one another's mistakes. They created computerized templates for court filings. And they boosted their damage claims by invoking consumer-fraud laws.

"We're learning the tricks," says Ed Konek, a computer network salesman who is proud that he can type out a summons in an hour, though he now hands off that work to his lawyer. Konek has two young children, and it's the porn e-mails that make him mad. When a recent flood of spam promised (without delivering) "Britney Spears Naked," Konek stopped looking at his e-mail with his kids in the room. "I don't personally want to explain to my 7-year-old daughter why Britney Spears would be naked," he says.

Spam fighters say they need a good, strong federal law, like the Telephone Consumer Protection Act of 1991, which cracked down on junk faxes. Opponents of tight legislation, like the American Civil Liberties Union and the Direct Marketing Association, worry about free-speech restrictions. They also point out that an increasing amount of spam comes from overseas, which puts it beyond the reach of any American law.

But the Seattle spam fighters are adept at tracking down the American links to many of those foreign messages. They spot U.S. phone numbers or respond to spam by requesting free samples that lead them to American participants. "It's been a lot of going home after work and doing research," Konek says. His wife complains about the hours consumed by his quest. But Joel Hodgell feels he's part of something big. "There are thousands of people around the world trying to nail these guys."

Beth Taylor is a writer in Edmonds, Wash., whose work has appeared in The Seattle Times and The Chicago Tribune.

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