Back in 2003, there was a race to pass spam legislation. California was on the verge of passing legislation that marketers disdained. Thus marketers pressed for federal spam legislation which would preempt state spam legislation. The Can Spam Act of 2003 did just that… mostly.

“Mostly” is where litigation lives.

According to the Can Spam Act preemption-exception:

This chapter supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto.

15 USC s 7707(b)(1). The preemption-exception is big because California affords a private right of action, where the Can Spam Act does not. The Can Spam Act is enforced by state and federal authorities only.

This is where today’s plaintiff, in Silverstein v. Keynetics, Inc., Dist. Court, ND California 2016, attempted to hang his coat.

According to the court, “Plaintiff is a member of the group ‘C, Linux and Networking Group’ on LinkedIn, a professional networking website. Through his membership in that group, he received unlawful commercial emails that came from fictitiously named senders through the LinkedIn group email system. The emails originated from the domain “linkedin.com,” even though non-party LinkedIn did not authorize the use of its domain and was not the actual initiator of the emails.” The emails themselves contained marketing links that led, allegedly, to defendants’ businesses.

Plaintiff alleged that the names in the ‘from’ field of the emails were false or deceptive. According to Plaintiff, “the ‘from’ names include ‘Liana Christian,’ ‘Whitney Spence,’ ‘Ariella Rosales,’ and ‘Nona Paine,’ none of which identify any real person associated with any defendant. Further, Plaintiff alleges that the emails ‘claim to be from actual people’ and that all of the false ‘from’ names deceive the emails’ recipients ‘into believing that personal connection could be made instead of a pitch for Defendants’ products.’”

A reading of the Can Spam Act would appear to be clear. The Can Spam Act preempts state causes of action “except to the extent that any such statute prohibits [either] falsity or deception.” If the email is either false or deceptive, it would seem, Plaintiff could proceed. In the case at hand, the information in the ‘from’ field would appear to be false.

The Judge in the Silverstein decision, however, hangs her hat on a previous 9th Circuit decision in Gordon v. Virtumundo, 575 F.3d 1040 (9th Cir. 2009). In Gordon, defendant sent out marketing emails from domain names that it had registered such as “[email protected],” “[email protected],” and “[email protected].” These were, in fact, defendant’s domain names. While the ‘from’ field may not have clearly identified who the defendant was, the information was not false nor was it deceptive. Furthermore, according to the court, the WHOIS database accurately reflected to whom the domain names were registered. Therefore, at best, the ‘from’ field information was incomplete, but not false or deceptive. As a result, the Can Spam Act preempted litigation under state law.

The Gordon court elaborated that it is insufficient for the information in the spam to be merely problematic. It had to be materially problematic. The Gordon court looked at the words “false” and “deceptive,” and other language of the Can Spam Act, and said, “we know those words. Those words refer to ‘traditionally tortious or wrongful conduct.’” Recognizing the Internet as a trans-border medium of communication, Congress had attempted to solve the patchwork of inconsistent state spam laws that were arising and establish a nationwide legal standard. It would be logically incongruous, the court argued, for Congress to erect a nationwide standard only to leave it vulnerable to a collage of immaterial exceptions emanating from state laws. The exceptions would undo the nationwide playing field for conducting business. Thus, immaterial information inaccuracies that are insufficient to in fact deceive a plaintiff are therefore insufficient to sustain a preemption-exception.

In the case at hand, although plaintiff has alleged that the names in the ‘from’ field were false, the court concluded that plaintiff has failed to establish that they are materially deceptive. Plaintiff did not, for example, alleged that the false names were people who were known to him and that the sender was spoofing their identities. Nor has plaintiff alleged that the false names somehow confused or deceived plaintiff about the nature of the emails. The emails themselves, including the subject line “How a newbie banked $5K THIS WEEK . . . What Nobody Told You About,” made clear the marketing nature of the communication.

Plaintiff’s claim, therefore, does not fit within the Can Spam Act preemption-exception.