The Washington Court of Appeals on Tuesday issued an opinion dealing a severe blow to an antispam plaintiff (and to the antispam community at large).  The case is Benson v. Or. Processing Serv., 2007 Wash. App. LEXIS 31 (Wash. Ct. App. January 9, 2007) [link to pdf version of the opinion here].  This is essentially the Mummagraphics case at the state level and is sure to take the wind out of the sails of many a Washington law-based spam claim.

The facts roughly are as follows:  Benson, the plaintiff, received some 251 "unsolicited commercial e-mail messages".  The emails contained unsubscribe links and postal addresses through which a recipient could unsubscribe.  Oregon Processing Services (OPS) identified itself as the sender, and Benson readily identified OPS through looking up publicly available WHOIS information for the domain names through which the emails were transmitted.  (The domains were registered to OPS.)  Benson replied to the emails and his replies bounced back.  Benson never utilized the unsubscribe mechanism in the emails themselves, or otherwise tried to prevent further transmission of the emails.  Benson alleged that the emails were improper under the misrepresent or obfuscate prong of the Washington statute (RCW 19.190.020). 

In a clasically bizzare argument, Benson argued that OPS "misrepresented and obscured the commercial e-mail messages' points of origin and transmission paths because, when he replied to the 251 e-mail messages, 'his replies were undeliverable to the commercial e[-]mail addresses from which the' e-mail came."  The court rejects Benson's argument, looking instead to the plain meaning of the words "misrepresent" or "obscure" used in the statute:

RCW 19.190.020(1)(a) says nothing about how useful a commercial e-mail's point of origin or transmission path must be. Specifically, the statute does not require a commercial e-mail sender to acknowledge or respond to a recipient's reply e-mail. Rather, the statute merely requires the sender to refrain from misrepresenting or obscuring the e-mail's point of origin or transmission path. . . . .  Benson argues that OPS and Martin misrepresented and obscured the commercial e-mail messages' points of origin and transmission paths because, when he replied to the 251 e-mail messages, "his replies were undeliverable to the commercial e[-]mail addresses from which the" e-mail came. Br. of Appellant at 33. Because the statute does not require that Benson's e-mail replies be deliverable, the trial court did not err in concluding that OPS and Martin did not violate the statute.

The take away:   this will be a widely cited decision for the proposition that the sender must actually hide or alter the transmission path or point of origin to violate the misrepresentation/obfuscation prong of the statute.  Also, reading between the lines, the decision demonstrates that terms such as "point of origin" should be read literally.  This decision will be useful to undermine the frequently asserted but inane argument that a sender violates the statute by creating an "alias" in the from line – i.e., indicates that the emails were sent from "Acme Offers" or "Low Price Offers" where they are actually sent from [email protected] or even through a third party advertising service's domain name.   

The larger point of course is that the court probably felt that the plaintiff in this case abused the statute.  The statute is aimed at preventing people from using a domain name without permission or sending emails via routes through which they are not actually sent.  Here, the emailer sent unsolicited emails but made abundantly clear who sent the emails and how the recipients could unsubscribe.  It may come as a surprise, but the Washington statute does not actually prevent the transmission of unsolicited commercial email!  Also, here the plaintiff failed to take the simple step of utilizing the unsubscribe feature (either via link or letter).  Courts seem to be willing to shift some potential fault off to a plaintiff who fails to utilized a reasonable unsubscribe mechanism.  The issue of course is that you never know when you click on an "unsubscribe link" where your browswer will resolve.  People are legitimately afraid of utilizing those links and it's not entirely clear whether they should be required to take the more onerous step of mailing or faxing a short unsubscribe request.  Nevertheless, in this case, the court felt that the plaintiff should have taken the simple step of utilizing the unsubscribe feature, either electronically or via paper.