Washington's "Spam-Killing" Statute: Does It Slaughter Privacy in the Process?

In 1998, the Washington Legislature passed an historic law prohibiting the sending of commercial e-mail messages containing false or misleading information in the subject line or header. The law also permits companies that provide Internet services, known as Internet Service Providers (ISPs), to block the transmission or receipt of messages reasonably believed to violate the statute. However, the law fails to specify the permissible activities that an ISP may pursue to form such a reasonable belief. It thereby encourages a variety of intrusive ISP activities, such as message screening.

Existing statutory and constitutional privacy law provides the only shield for an e-mail subscriber against invasive ISP activities. This Comment argues that these existing privacy laws fail to provide meaningful protection to e-mail subscribers from the potential abuses of their ISPs. The Comment recommends legislative action to amend the anti-spam law by explicitly limiting the ways in which an ISP may develop its "reasonable belief" that a particular e-mail message violates the anti-spam statute.