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In the Beginning . . .
There was California . . .
'We are saying that unsolicited e-mail cannot be sent and there are no loopholes . . . We don't differentiate between Disney and Viagra.
If you go out and rent a list of e-mail addresses, by definition you are not a legitimate business. You are the person we are trying to stop.”
Former California State Senator Kevin MurrayAuthor of SB 186
84 Days Later
Controlling the
Assault of
Non-
Solicited
Pornography
And
Marketing Act
Public Law 108-187
CAN-SPAM Act of 2003CAN-SPAM IS . . .
• An anti-fraud and disclosure statute
• Applies to an email where the “primary purpose” is commercial advertisement or promotion of a product or service
• No volume requirement
CAN-SPAM DOES NOT . . .
• “Can Spam” – except for wireless spam
• Include a “Do Not Email Registry”
• Impose an “ADV” labeling requirement
• Create a general private right of action
CAN-SPAM Principal Requirements
From line must identify initiator
Subject line must not be deceptive. Adult Messages must provide notice.
Postal Address for AdvertiserRequires Working Opt-OutMechanism for Advertiser
UCE must be identified
as “advertisement”
1.FTC Discretionary Regs
2.CAN-SPAM Plaintiffs
3.State Law & Preemption
4.Advertiser Liability
5.California Amendments
Topics
Regulatory Timeline2004: FTC Final Rule on Adult Labeling
FCC CAN-SPAM Rules
2005: FTC (1) Final Rule on Primary Purpose of Email; and (2) Proposed Discretionary Rules
2006:
2007:
2008: FTC Final Discretionary Rules
Discretionary Regs
Definition of Valid Physical Address• Accurately registered P.O. Box allowed
Opt-Out Requests Conditions or Expiration• Cannot impose any conditions on opt-out requests
– (e.g, fee or provide information)• Abandons proposal to reduce processing time to 3 days• Rejects call for expiration period for opt-out requests
Must Be a Sender Under CAN-SPAM
Cannot designate Non-Sender
• Name must be in the “From” Line
• Must be Responsible for CAN-SPAM compliance
• Dropped requirement that Designated Sender be in control of the content or the mailing list used
Designated Sender Rule
CAN-SPAM Plaintiffs• FTC
• State AGs
• Internet Access Service Provider (IASP)– Adversely Effected by
Violation
• No Consumer Private Right of Action
Is the IASP Remedy a Trojan Horse?
Hypertouch v. Kennedy-Western University
• Small, free service can qualify.
• Concern that Hypertouch is a professional plaintiff can only be addressed by Congress
• Opens door to litigation by anti-spam activists as faux-IASPs
Hypertouch and its principal have filed approx. 40 cases under CAN-SPAM and/or California law
Is Gordon a Proper Plaintiff?
• Gordon v. Virtumundo – Continued to use other people's e-mail addresses to collect spam .
. . for generating lawsuit-fueled revenue – No harm related to
• Bandwidth• Hardware• Internet connectivity, network integrity• Overhead, staffing or equipment costs
No!
• Not Plaintiff Congress had in mind – must demonstrate substantial harm
• Awards Defendant Attorneys’ Fees – suit “ill-motivated, unreasonable, and frivolous”
Followed in Cal Federal Court
ASIS Internet Services v. OPTIN Global (N.D. Cal. 2008)
Golf is boring.
Let’s talk about spam.
Subliminal Message #2
CAN-SPAM PREEMPTS ALL STATE REGULATION OF EMAIL EXCEPT STATE LAWS
• Regulating falsity or deception in email
• Not specific to email, including State trespass, contract, or tort law; or
• Other State laws to the extent that those laws relate to acts of fraud or computer crime
• Misrepresentation must be material
• States cannot dictate form of from line – Cannot prohibit use of multiple
domains.
– Not misleading to use non-corporate address where domain may be checked using “Who Is”
• State regulation must be based on traditional notions of fraud
• First Amendment requires that it not impinge non-commercial email
Preemption’s Back Door?
• Utah/Michigan Child Registry Laws– Makes sending prohibited email a
“computer crime”– Free Speech Coalition, Inc. v. Shurtleff,
Utah Federal Court refused to enjoin law finding it fell within exception for computer crime
• DOJ filed brief supporting this position
• New Colorado Spam Law – Makes violation of CAN-SPAM a
violation of state deceptive practices and computer fraud laws
– Is this a backdoor to creating private right of action under CAN-SPAM?
Lessons from the Beehive State
Registry Income/Expense ($000)
$187
$150 $133 $100
$0 $50 $100 $150 $200 $250 $300 $350 $400 $450
Income
Liability
Registry Fees Unspam Fees Law Enforcement Litigation Defense
Liabilities Exceed Income 2-1
“Sender” Liability• FTC unsuccessful in
seeking strict liability
• Advertiser liable if “actual knowledge, or by consciously avoiding knowing” about affiliate violations– Hypertouch v. Kennedy-
Western UniversityStrict anti-spam policies and policing of affiliates defeated allegation of intent.
– ASIS Internet Services v. Opt-In Global, Inc. No duty to investigate
AB 2950
• Pushed by anti-spam activists who have filed over 100 suits
• Wish list– Advertiser liability– Prohibiting use of multiple domains – Tactics to evade email filters– Expand Plaintiffs to include District &
City Attorneys– Venue – Restore Statute of Limitations to 3 Years
AB 2950
• Pushed by anti-spam activists who have filed over 100 suits
• Wish list
– Expand Plaintiffs to include District & City Attorneys
– Venue – Restore Statute of Limitations to 3
Years
AB 2950
• Pushed by anti-spam activists who have filed over 100 suits
• Wish list–
– Expand Plaintiffs to include District & City Attorneys
– Venue – Restore Statute of Limitations to 3
Years
CasesPreemption• Omega World Travel, Inc. v.
Mummagraphics, Inc., 469 F.3d 348 (4th Cir. 2006)
• Free Speech Coalition, Inc. v. Shurtleff, No. 2:05CV949DAK, 2007 U.S. Dist LEXIS 21556 (D. Utah Mar. 23, 2007)
• Kleffman v. Vonage Holding Corp., Case No. CV 07-2406GAFJWJX (C.D. Cal. May 23, 2007)
• Gordon v. Virtumundo, Inc., Case No. 06-0204-JCC (W.D. Wash. May 15, 2007)
• Virginia v. Jaynes, No. 062388 (Va. September 12, 2008)
IASP Standing• ASIS Internet Services, v. Optin Global,
Inc., 2008 WL 1902217 (N.D. Cal. March 27, 2008 )
• Gordon v. Virtumundo, Inc., supra.
• Hypertouch v. Kennedy-Western University, 2006 WL 648688 (N.D. Cal. 2006)
No Strict Liability• ASIS Internet Services, v. Optin Global,
Inc., supra.
• US v. Implulse Marketing, No. CV05-1285RSL (W.D. Wash. June 8, 2007)
• US v. Cyberheat, 2007 U.S. Dist. LEXIS 15448 (N.D. Ariz. 2007)
Bennet KelleyBennet Kelley is founder of the Internet Law Center in Santa Monica where he helps clients navigate the challenges of the digital economy. He has been active in many of the hottest Internet issues over the past decade including cyber squatting, internet marketing and promotions, online gambling, net neutrality, privacy and spam.
Bennet will be Vice-Chair of the California State Bar's Cyberspace Committee and is a regular contributor to the Journal of Internet Law. Bennet worked in-house with companies such as ETM Entertainment Network, SpeedyClick.com and ValueClick prior to launching the Internet Law Center.
The Internet Law Center’s newsletter, Monday Memo, recently was named one of the top 100 Internet Law resources..
Contact: Internet Law Center 100 Wilshire Blvd, Suite 950 Santa Monica, CA 90401 310-452-0401 [email protected]
www.InternetLawCenter.net
Future PresentationsOctober 14• Online Advertising’s Year of Living
Dangerously, California State Bar Cyberspace Committee (webinar)
November 3• Email Compliance: Foundation of
Reputation & Deliverability, Direct Marketing Association (New York)
November 21• Affiliate & Direct Marketing, PMA
Promotion Marketing Law Conference (Chicago)