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The state of Washington filed a case against Oregon resident Jason Heckel for violating the Washington’s commercial electronic mail act, chapter 19.190 RCW (the Act). The defendant was doing business for Natural Instincts since 1996 by sending unsolicited emails or “spam” to sell an online booklet.   The suit stated three causes of action: 1.  Violation of RCW 19.190.020(1)(b) due to the usage of false subject lines by the defendant. 2. Violation of RCW 19.190.020(1)(a) due to the use of misrepresenting of information in the transmission paths of the defendant’s UCE messages. 3.  Moreover, the defendant failed to use valid email addresses which hinder attempts of contact.


The trial court found the Act discriminating against the Commerce clause and  unduly restrictive and burdensome. The order permitted the defendant to present a cost bill to cover the costs and attorney fees which amounted to $49,897.50. However, it was denied and the court limit Heckel’s award to statutory costs under RCW 4.84.030.

To challenge the court’s findings that the Act violated the Commerce Clause, the State sought the Supreme Court of Washington’s direct review and was granted despite Heckel’s appeal.


Does the Act, which restricts misrepresentation of subject and transmission paths of commercial e-mails sent to Washington residents or from Washington-based computers obstruct the Commerce Clause of the United States?


The Supreme Court reversed the trial court’s decision and remand the matter for trial. The trial court’s order for attorney fees was vacated.


The commerce clause grants power to regulate commerce with foreign nations, and among the several states.  In determining whether a state law discriminates the Commerce Clause, the court uses 2 processes. Primarily, the court weighs whether the law openly burdens the Commerce clause for intrastate economic gain or interest. The court found the Act not facially discriminatory, hence, the Act does promote economic local benefits.  Moreover, the Act was enacted to protect ISPs, actual business owners of domain names and email users.  Internet service providers (ISPs) are affected because it increases their operational cost through need of more computer equipment and employees to handle the bulk spam.  On the other hand, actual business owners of domain names are harmed by spam through the illegal use of their domains.  Whereas Internet users are not able utilize the time they spend in using the Internet service that they pay for due to the misleading spam they receive.

Consequently, the Act’s local benefits are not comparable to the protection it provides to  ISPs, actual business owners of domain names and email users although it places the burden of providing truthful information through the use of accurate and non-misleading subject lines, legal domain names and valid email addresses.  If the spammers do not comply with the act, they incur and increases expenses for other members of the society.

The trial court could have suggested to initiate a filtering scheme to eliminate the receipt of spam to Washington residents and computers which may support Heckel’s claim that the Act promotes local benefits. His contends that the Act (1) created inconsistency among the states and (2) regulated conduct occurring wholly outside of Washington.  However, 17 other states have legislation against spam, moreover, the truthfulness requirement of the act does not conflict with other states’ statutes.  The Act violates the extraterritoriality principle in the dormant Commerce Clause analysis. It does not regulate where the email is opened but it protects the Washington residents and computers to receive such.

Apparently, the Act primary limits the harm that spam can cause to Washington businesses and citizens and it overshadows the local benefits that can be gained by the state.

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