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WASHINGTON ATTORNEY GENERAL NEEDS REMEDIAL LAW SCHOOL
(June 2, 2005) On March 10, 2005, Washington State Attorney General Rob McKenna said ". . . just as we have made spam illegal, we need to make phishing clearly illegal with stiff fines". Mr. McKenna said this at the City Club Forum in Seattle. Right click here to download the audio clip. The full presentation can be viewed from the SeattleChannel. His statement is about 20 minutes into the discussion. Mr. McKenna may be well intentioned, but he is completely uninformed. Spam is legal -- if done according to the law. There is no blanket prohibition in Washington law against spam as Mr. McKenna would have you believe. Many of us lobbied for such a law back in 1998 -- similar to the federal anti-junk fax law. The Washington Legislature, like Congress, decided instead to clearly make spam legal when done according to the law. Both the Washington State law and the federal law regulate commercial email. Basically, a person or organization can spam as much as they want under protection of the law as long as the spam conforms to the requirements of the law. I wrote to Mr. McKenna and asked when spam became illegal. He declined to answer, instead passing the question to a subordinate who said in part: "When the Attorney General mentioned that spam is illegal, he was talking about conduct that is a civil violation and not criminal." Civil or criminal, Mr. McKenna has misled the public by stating that "just as we have made spam illegal". Spam is not illegal if done according the law. We can't have confidence that Washington's chief lawyer will be tough on spam if he is not tough on the truth. -- Bruce Miller DOES THE FEDERAL CAN-SPAM LAW PREEMPT THE WASHINGTON LAW? (February 9, 2004) Even though the AG's web page on private right of action is silent on the matter as of this writing (2/9/2004), Paula Selis, Assistant AG, provided this written comment on 2/9/2004 about the AG's position: "The AG's position is that the state law is not preempted by the federal law, because the federal law explicitly says that it does not preempt to the extent that any statute "prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto." Section 8 (b)(1). Since WA's law specifically deals with falsity and deception in subject lines, headers and points of origin, we do not consider it preempted by the federal law." -- Bruce Miller
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