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Proposal to ‘can spam’ right step, expert says

SHARE Proposal to ‘can spam’ right step, expert says

A Washington man who has successfully sued e-mail spammers in small-claims court thinks Utah is taking the right step in creating a law to can spam, although he believes the penalties should be harsher.

Bennett Haselton, a contract computer programmer in Bellevue, last month won a total of $2,000 from four spam defendants sued under a 3-year-old Washington state law. He's one of a handful to win since the Washington law recently prevailed in a constitutional challenge.

"I'm glad to see whenever any state legislature takes on this issue," Haselton said. "The only thing I would worry about, perhaps there more than other places, is that people might try to put in more-severe penalties for something pornographic. The legislation should be content-neutral."

The Utah bill, HB80, is sponsored by Rep. Patrice Arent, D-South Cottonwood, and contains no specific language about pornography. The bill requires senders of unsolicited commercial e-mail to identify themselves and provide their address, put "ADV:" on the e-mail subject line as a way to indicate it is an advertisement, and provide a no-cost way to opt out of the sender's e-mail list.

Individuals, businesses and Internet service providers would be able to sue for actual damages or the lesser of either $10 per unsolicited commercial e-mail or $25,000 per day that the violation occurs, plus costs and reasonable attorney fees.

By contrast, Washington prohibits the sending of commercial e-mail that contains misleading information in its subject line or uses a bogus return address or third-party domain name return address without permission. Lawsuits brought by the state under its consumer protection act can seek up to $2,000 per violation. Consumers can sue for actual damages or $500 per violation; ISPs, $1,000.

In Haselton's case, the judge ruled the defendants had sent him deceptive e-mail solicitations.

"If the judgment is large enough, say, $500 instead of $10, it's worth your trouble. If it's $10, it won't be worth it unless you get lots of different judgments against different plaintiffs, and that would require a lawyer," Haselton said.

"It would be better to have $500 than $10, but I could see where a $10 penalty could be used by lawyers who took the time to organize this into a way to extract a financial penalty from spammers and still have something to give to plaintiffs."

One Utah legislator has concerns that individuals will end up with $10 in a class-action suit while "lawyers walk off with sacks of cash."

But if a lawyer works on a contingency and gets one-third of a $10 penalty, that still would leave individuals with $6.66. "If you look at the amount of spam in your in-box, and then convert that into $6.66, most people would be happy with that," Haselton said.

Arent has said anti-spam legislation will be effective only if court rulings become a deterrent to sending out spam.

Haselton said cases involving large numbers of spam e-mails "actually have a chance to hit spammers in the pocketbook."

Haselton, who has lost one spam-fighting case, eventually wants to be successful enough to put together how-to information enabling other Washingtonians to join the spam-fighting cause. He figures he receives enough spam to file one lawsuit per day.

"In the long run, this will only work if many people do it, and the only way to get many people to do it is to show they can pull down a good hourly rate doing it," he said.

Among the obstacles Washingtonians face are inconsistencies in the legal system and difficulties in tracking down spam senders, he said. Until plaintiffs gain discovery rights, small-claims suits may be limited.

Still, he expects either existing laws will turn out to be strong enough or stronger laws will be passed.

"You have to make it too expensive for spammers," Haselton said. "There might be a federal law of $500 for spam and that allows people to sue in small-claims court. That would probably make it permanently established that spamming is too expensive under U.S. laws."

E-mail: bwallace@desnews.com