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Do You Need a License to Look for Spam?

Jay Fink had an interesting little business. If you lived in California, you could give him access to your email account; he’d look through the spam folder for spam that appeared to violate the state anti-spam law and give you a spreadsheet and a file of PDFs. You could then sue the spammers, and if you won, you’d give Fink part of the money as his fee.

While the federal CAN-SPAM law largely preempts state laws, it lets states add their own penalties for fraudulent or misleading spam. California is one of the few states with a usable law and one of the few that lets spam recipients sue in small claims court. The spammers tend to pay to settle rather than go to court (because they are pretty sure they’d lose), so this was a way to make life more difficult for the spammers, paid for by the spammers.

Last July, the state of California shut him down, saying that the stuff he was doing needed a Private Investigator (PI) license. The license is quite expensive and requires 6,000 hours of training in a field like arson investigation or insurance adjustment. Fink thought this was ridiculous, since none of the training would have anything to do with looking for spam, and the requirements were grossly excessive for what he did. He sued the state, supported by the Institute for Justice, a libertarian public interest law firm.

Last week, the parties filed the first substantive exchange, in which the state moved to dismiss the case, and Fink’s lawyers said not so fast.

Fink argued that what he was doing, reading and organizing email, was speech and so is protected by the First Amendment. He also made some due process claims under the Fourteenth Amendment, but the First Amendment claims are more interesting.

In its brief, the state argues that no, it’s not speech, and even if it is speech, it’s commercial speech. Courts have held that commercial speech is less protected than other speech in a case called Central Hudson.

They also argued that the training he’d get would be useful, e.g., in preparing evidence for a trial or keeping people’s emails confidential. And finally, they argued that every kind of work involves speech, so if you believe Fink’s claim that what he’s doing is speech, they couldn’t require licenses from anyone.

The Institute for Justice filed Fink’s reply. They refute each of the state’s arguments in detail.

They start by arguing that the state has misinterpreted many of the cases they depend on. For example, Central Hudson is essentially about advertising, so while it might allow them to regulate his ads, which are not at issue here, it’s irrelevant to the work he does. They cite cases showing that what matters for the First Amendment is what you’re doing, not if you’re paid for it. They note that many people allow others to read their mail, e.g., assistants to executives, and the only difference here is that the result might be used in a lawsuit, not a difference that they say the law recognizes.

They dismiss the claim that a license would make him do this job better. (In a footnote, they point out that if the state is worried about confidentiality, they could require him to have an NDA with his clients, which he probably does anyway.) And they rather briskly dismiss the argument that every licensed profession involves speech, noting that a doctor or lawyer does other stuff than speech, e.g., treating patients or representing people in court, while Fink’s work is only speech.

There’s more, and they also reiterate how utterly unrelated the training for a PI license is to what Fink is doing.

I think Fink’s argument is more persuasive here. But since this is a motion to dismiss, all that can happen is that either the judge rules for the state and the case is over, or for Fink and the case proceeds to the next stage. Stay tuned.

By John Levine, Author, Consultant & Speaker

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Is it really "speech" Karl Auerbach  –  Jan 23, 2024 11:48 AM

I know that it is very fashionable to treat nearly every act as “speech” and thus claim that it is protected under the 1st Amendment.

But there are limits - else someone who uses a car to run someone down to “win” an argument could claim that that act is protected speech.

One of the key aspects here that to my mind mitigates against the free speech argument that person is offering and performing a paid-for service.  (My approach here does crash against the rocks of paid-for writing for things like political campaigns, which is definitely protected speech.)

I kinda keyed off of the aspect that this person is effectively preparing evidence for a legal fight.  If I were to do this I’d have the protection of my California law license - and I have some limited authority to imbue my powers onto research associates who do not have such a license.  But people are permitted go to court without a lawyer - but any person who represents or advises such a person would have to have a law license.

Private investigators generally get protection to dig into dark corners, but that is not present in this instance, so I’m not at all clear why the notion of “private investigator” is claimed or is relevant.  And I don’t see much of a difference here between what this person is doing and what a good journalist would do in preparing a report for publication.

There is another aspect - one you probably know much better than I - which is the aspect of accusing this mail-labeling service of defamation of the sender.  Certainly this does cast an ill light on certain senders - but I am not aware of how that has been handled in the past.

Overall I think that California is barking up the wrong tree here.  Maybe there is some tiny twinkle of merit in their claim, but it seems a waste of state resources when the bigger ill in this context is the spammers.

Todd Knarr  –  Jan 26, 2024 7:51 PM

If I have an outside accountant go over my company's books and give me a list of suspicious transactions preparatory to me deciding whether or not to sue someone for embezzling money from the company, does that accountant need a PI's license? I doubt it. Nor do they need any special license to practice law for evidentiary reasons, because they're _not_ preparing evidence for trial. For one thing, no suit has even been filed yet. For another, they won't be the one preparing any evidence for trial. My attorney would be doing that as part of preparing for trial in general. Even requiring an NDA would be beyond what the government should be allowed to require in a case like this (absent some external requirement for confidentiality, eg. I work in a doctor's office and am required to comply with HIPPA). Bluntly, if I want to have someone read my documents and give a layman's opinion of them it shouldn't require they have any special license any more than it should require that of my secretary to read my mail and sort it into categories for me.

Take a closer look? John Levine  –  Jan 23, 2024 12:01 PM

Take a look at the briefs and see what you think. I found the state’s awfully conclusory.
I wouldn’t worry about defamation. The people who send this stuff rarely want to call attention to themselves, and the fraud is pretty obvious.

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