Junk E-mail Law OverviewIn 1998, Washington State enacted ESHB 2752, which regulates the sending of Junk E-Mail to Washington Residents. This site explains the new law and it's updates. The law is found in Chapter 19 of the Revised Code of Washington, RCW 19.190, and went into effect on June 11, 1998. Even if you aren't a Washington Resident, this law can affect YOU!
The ProblemUnsolicited Commercial E-Mail, or Spam, has become a serious problem for Washington residents and businesses. This cost shifting form of malicious advertising forces the recipient to unfairly bear the cost of advertising, with no recourse but to accept these messages. It is akin to junk mail showing up at your house postage due, where you had no choice but to pay. Junk e-mail also cost consumer's money in the additional costs of Internet access because service providers must pay to handle this increased load. And Spam is choking a vital lifeline for many business in the Northwest's Silicon Forest. The Washington Association of Internet Service Providers (WAISP) and other concerned individuals sought relief from this growing problem.
A SolutionHouse Bill 2752 was introduced by Rep. Roger Bush (R, 2nd District) in the 1998 Legislative Session at the request of the Attorney General to grant this relief. After a long effort to inform our elected officials about the problem, Washington passed the strongest law in the union regarding this issue.
Who the Law AffectsThe law pertains to mail sent by a resident of Washington, OR to a Washington Resident's e-mail address. The law applies if the sender knows, or has reason to know, that the address belongs to a Washington resident. The law further deems that the sender knows the address belongs to 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.
So, if a domain name registrant would have disclosed residency information to you upon request, you are assumed to know that the address belongs to a Washington Resident. It is incumbent on YOU to check and see if you are sending mail to a Washington Resident. Is this an unfair burden? No - the law only applies if you use a forged header or a misleading subject line.
Even if the sender never actually checks with the domain, the law still applies merely if the information was available - even if it was never actually requested. It is the responsibility of junk e-mail senders to verify the residency of intended recipients.
What Mail is AffectedThe law makes it a violation to send mail that:
- Uses a third party's internet domain name without permission of the third party, or otherwise misrepresents any information in identifying the point of origin or the transmission path. This means that mail which has a false or invalid return address, or falsifies any portion of the header, is a clear violation of the law.
- OR it would be a violation if the message contains false or misleading information in the subject line. This means that the Subject line of the message must accurately reflect the true contents of the message. For instance, a subject of "Hello....Remember Me?" would be considered misleading if the subject actually promoted a commercial good or service.
What the Law AllowsThe law specifically permits Internet Service Providers to block messages which they reasonably feel are in violation. It also exempts them from liability for any good faith effort they make to block these messages.
While this law does not cover the sending of messages that contain proper return addresses and headers, and which have correct subject lines, it in no way makes other forms of Spam legal. They are still subject to other applicable State and Federal regulations, and are in no manner whatsoever specifically permitted.
PenaltiesThe law allows for damages to the recipient of $500 or actual damages, which ever is greater, for EACH MESSAGE received. The law also allows $1,000 or actual damages, which ever is greater, to the Internet Service Provider, for EACH MESSAGE received.
Who Can Be PenalizedAny violator of this law can be penalized. Because a violation of this law falls under Washington's Consumer Protection Act, it grants "long arm of the law" powers to the Attorney General and victims to pursue violators, even if they don't reside in the state. The Consumer Protection Act deems that if you have entered the state to conduct business, physically or electronically, you are subject to the laws of Washington. This is the same provision that allows for litigation against fraudulent telemarketer's and others who work in Washington from outside the state.
How to Find the ViolatorThis is a key point and rather easy to accomplish. While a violator more than likely has taken careful steps to hide the true point of electronic origination, their message always contains a clear pointer to the sender. This pointer is the manner in which they wish to receive your money. This might be a phone number, a physical address, or a web site. And through these items, it is much easier to find the sender. It is not necessary to determine the actual account used to send the message. The person or organization benefiting form the message is usually who sent it.
How to Use the LawAny Washington Resident may personally sue in Superior Court for damages under the Consumer Protection Act. You may also complain to the Consumer Protection Division of the Attorney General's office by filling out their consumer complaint form or by contacting the nearest Consumer Resource Center. Please note that the Attorney Generals office has replaced their e-mail complaint form with a cumbersome and extremely time consuming online form. You can also find lots more info at the Attorney General's web site. It is recommended that you consult a Washington Attorney familiar with the law and how to enforce it.
What You Need To DoIf you are a Washington Resident, it is imperative that you ensure that your e-mail address is available from your Internet Service Provider. If your ISP will not verify Washington residency upon request, you can not receive the protections that this law affords. You must contact your ISP and make sure that they will verify your residency if asked.
If your ISP will not verify residency, it is possible that you may enter your address into a separate independent database of Washington Residents. Your ISP can then forward inquiries to this independent database. Such an independent database is located here.
The Beauty of the LawWhile this law only affects mail to Washington Residents, it does have a national impact. Because those intending to send out a mass mailing must check the residency status of every address first, it will certainly affect virtually every junk mailing in the United States. Most domain registrants are expected not to publish a list of their Washington based subscribers, but instead are expected to ask for a separate inquiry for each address you intend to send to.
So if you had a mailing list of 1,000 names, you would have to make a separate inquiry for each address to their domain. You could also go to an independent database and search for each address. This additional requirement may make junk e-mail too cumbersome to be practical anymore.
Does the Law Legitimize Spam?The argument has been raised that this law legitimizes Spamming, since it allows certain types of Spam. This is not the case. Just as the statute on murder does not allow you to drive without a license, this law allows NO BEHAVIOR! It merely prohibits two types of behavior. If an action does no fall under this statute, that does not mean it is allowed or can not be regulated by other means. While this may not be the law that commands a Writ of Execution for Spammers that some people want to see, it is still the most effective piece of legislation ever passed in America that addresses this growing problem.
Further Protections ComingThis law is the first effective step in the battle against Spam. However, it is clear that legislation is required at the Federal level. The Coalition Against Unsolicited Commercial E-Mail, or CAUCE, maintains a web site with detailed information on these efforts.
Want To Do Something?Many people have contacted me with input on Washington's law. If you live in Washington and are concerned about this issue, consider joining one of these organizations;
The Washington State Internet Lobby
The Washington Association of Internet Service Providers
• The actual text of the law
• My Testimony in support of the law
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