`Spam' loses in court: - Irritated computer users strike back at e-mail solicitors

February 11, 2002

Last August, Bennett Haselton got fed up with junk e-mail filling up his inbox, and he decided to take action.

Haselton is no stranger to Internet activism. In 1996, while still a teen-ager, he founded Peacefire.org, a nonprofit devoted to combating attempts to censor the Internet.

But as the operator of Peacefire, he runs his own mailing list, and Internet service providers (ISPs) sometimes block legitimate e-mail when it is believed to be unsolicited commercial e-mail, commonly known as ``spam.''

So Haselton sued the spammers in Small Claims Court under Washington state's 1998 anti-spam law. He won, and in December he was awarded $2,000 in judgments, $500 for each of the four suits he brought.

Haselton, who works out of his Bellevue apartment, is a reluctant trailblazer in hitting back at spammers where it hurts the most, in their wallets.

It hasn't been an easy process, as Haselton has learned. He has filed something on the order of 30 suits against spammers, and the process has been a learning experience for him. His intention is to refine the process so that it becomes a simple procedural matter for anyone to take a spammer to court.

``Eventually I hope that enough people will do this that they will be applying pressure on the spammers themselves without my having to do it,'' Haselton said.

With enough momentum from enough people, the amount of spam people receive may decrease or even disappear altogether.

He eventually hopes to stop bringing suits himself, he said -- unless he could actually make serious money doing it.

Among the frustrations he has encountered are identifying the spammers, getting the suit served in a proper legal manner and getting a judge to not only hear the case, but also to agree that the spammer broke the law.

Washington's anti-spam law (Chapter 19.190 RCW: Commercial Electronic Mail) is the weapon being used, but the biggest obstacle is having the law interpreted in a consistent manner.

``The way the courts are handling it is so inconsistent that it's almost not worth the trouble for the average person to get it,'' Haselton said. He said some judges interpret the law as allowing multiple suits against multiple spams, but others don't. Judges also may disagree over what constitutes serving process in Small Claims Court.

That's true, said King County District Court Presiding Judge J. Wesley St. Clair.

``Some judges are very knowledgeable on certain aspects, and some judges you have to educate,'' he said.

Another of Haselton's goals is to get an anti-spam case heard at an appeals-level court. That could set a precedent for lower courts and impose some consistency, something small-claims cases can't do.

Haselton and other activists also have been speaking with legislators in Olympia on toughening the current law.

A state Senate bill (SB 6568) to expand the power of Washington's anti-spam law passed unanimously last week in the Economic Development and Telecommunications Committee.

One of the bill's provisions would require all commercial e-mails originating within Washington state, or being sent to recipients in the state, to contain ``ADV:'' as the first letters in the subject line. Businesses sending e-mail to recent customers would be exempt.

The current law already outlaws misleading or false subject lines, use of a third party's Internet domain name without permission and other methods of misrepresenting a commercial e-mail's sender.

``We're one of the first test cases in the nation, and since we've passed it other states are following suit,'' said Eastside state Sen. William Finkbeiner. The 45th District Republican is one of the bill's co-sponsors and an author of the original anti-spam law.

Bruce Miller, a Shoreline free-lance writer, won one case on the grounds that the spammer used a third-party domain server without permission. Since 1998, Miller estimates he has received more than $4,200 in settlements from e-mail marketers, all without even having to file a lawsuit.

For Miller, who generally calls himself a ``freedom of speech guy,'' the issue boils down to property.

``I pay for storage space on ISPs. That storage space is mine as much as my house is,'' Miller said. ``They don't have the right to walk into my house to put up a sign advertising their service.''

For businesses, spam is more than just a nuisance. It costs money.

``A large chunk of our traffic is just spam,'' said Ben Livingston, vice president of Innovative Access, a small ISP in Seattle's Ballard neighborhood.

Livingston and his company have brought approximately 20 cases against telemarketers and junk faxers in the past, and two weeks ago Innovative Access won its first claim against a spammer. The company was awarded $3,000 in Small Claims Court, $1,000 for each of three spams sent by a single spammer.

``Our goal is to cut down on the amount of spam we receive,'' Livingston said. He estimates that the company receives 200 spams per day that manage to get past the filters and firewalls already in place.

Livingston, Miller and Haselton all maintain Web sites offering advice on dealing with spammers and suing them under Washington's law.

Livingston's site has a publication called ``Zen and the Art of Small Claims,'' while both Miller and Haselton are working on comprehensive guides to getting spammers.

Washington's laws are some of the best in the nation, said Jason Catlett, president of Junkbusters.com Inc., a New Jersey company that provides advice and tools for eliminating and combating unsolicited advertising.

Many local and state elected officials support restrictions on spam because their constituents constantly send complaints to them, especially when the spam contains pornography and is directed to their children, Catlett said.

The federal government is another story.

``At the federal level, the lobbyists, such as the Direct Marketing Association, fight against what most people want, which is a general prohibition against spam, because they want to spam themselves,'' Catlett said.

But because e-mail crosses state lines, Catlett says a federal solution is needed. While the United States has no anti-spam law, he points to broad guidelines in Canada and Europe. The Canadian Marketing Association requires its members to refrain from sending spam unless the recipient asks for it, and some European countries prohibit spam altogether.

In the United States, Catlett said, so far the best solution for consumers is to avoid getting onto marketing mailing lists in the first place. Once someone is on a list, it's difficult to get off.

The Direct Marketing Association, while maintaining a ``do not call'' list, only two weeks ago said it would propose actually enforcing it.

Miller has hope that spam eventually can be eliminated. For years, he was involved in the smoke-free movement, he said.

``There was a time when you couldn't fly on a domestic airline without being enclosed in a smoke chamber. Now all domestic flights are smoke-free,'' he said.

That gives him confidence anti-spam efforts can succeed, too.

``There are millions of people that don't like this stuff. It's going to take a lot of effort by a lot of people doing a lot of different things,'' he said.

Meanwhile, obstacles to spam-free e-mail are still formidable for the average person.

``There's still so much trailblazing that needs to be done,'' Haselton said.

Chris Winters can be reached at 425-453-4232 or at chris.winters@eastsidejournal.com.

HOW TO TAKE ON SPAMMERS

The Peacefire anti-spam lawsuit page: www.peacefire.org/anti-spam/

Bruce Miller's ``About Spam'' page: www. aboutspam.com. More information at www.wa-state-resident.com.

(Both pages contain links to the Washington state anti-spam law, 19.190 RCW)

Junkbusters' junk e-mail page: www.junkbusters.com/junkemail.html

Ben Livingston's page: http://smallclaim.info/

Advice on how to stay off mailing lists: www.junkbusters.com/ht/en/harvesting.html

COMPUTER CRIME SAFETY ADVERTISING CONSUMER PROTECTION RIGHT PRIVACY PHOTO by Maxwell Balmain/Journal: Bennett Haselton, founder of Peacefire.org, tracks the source of spam--unsolicited commercial e-mail-- in his Bellevue home office. He has won $2,000 in Small Claims Court judgments against spammers.