June 21, 2010
Use of Multiple (Even Random or Garbled) Domain Names to Bypass Spam Filter Does not Violate Cal. Spam Statute -- Kleffman v. Vonage
[Post by Venkat]
Kleffman v. Vonage Holdings Corp., Case No. S169195 (Calif. Supreme Ct.; June 21, 2010)
The California Supreme Court issued its opinion in Kleffman v. Vonage, a case certified from the Ninth Circuit. The California Supreme Court held that the transmission of "commercial e-mail advertisements from multiple domain names for the purpose of bypassing spam filters" does not violate California's spam statute. Kleffman was a putative class action, and in bringing claims based on the transmission of accurate emails from multiple domain names, plaintiffs tried to stretch the bounds of California's spam statute to the limit. The California Supreme Court - citing preemption, among other considerations - rightly rejected the arguments brought by Kleffman.
Background: Kleffman sued in state court, alleging that the transmission of emails on behalf of Vonage through domain names such as 'superhugeterm.com,' 'formmycompanysite.com,' 'ursunrchcntr.com,' and 'urgrtquirks.com' violated section 17519.5(a)(2), a provision of California's spam statute which prohibits the use of "falsified, misrepresented, or forged header information." Vonage removed to federal court (in the Central District of California). The Central District dismissed the lawsuit without leave to amend, finding that Kleffman's failure to allege anything misleading about the emails doomed the claims, and the claims were preempted anyway. Kleffman appealed to the Ninth Circuit, which certified the following question to the California Supreme Court:
Does sending unsolicited commercial e-mail advertisements from multiple domain names for the purpose of bypassing spam filters constitute falsified, misrepresented, or forged header information under Cal. Bus. & Prof. Code § 17529.5(a)(2)?
Discussion: The court starts out the discussion by noting a fact that to me starts and ends the discussion:
There is . . . no dispute . . . that the domain names used to send Vonage's e-mail advertisements . . . actually exist and are technically accurate, literally correct, and fully traceable to Vonage's marketing agents.
There's another case that turned a similar issue - Mummagraphics, covered by Professor Goldman here: "Fourth Circuit Rejects Anti-Spam Lawsuit." In that case, "the . . . header information [for the emails] incorrectly indicated that the e-mails originated from the server 'FL-Broadcast.net,' and  the messages' 'from' address read firstname.lastname@example.org, although that e-mail address was apparently non-functional' but the court says that these mistakes are immaterial because the 'e-mails at issue were chock full of methods to 'identify, locate, or respond to' the sender or to "investigate [an] alleged violation' of the CAN-SPAM Act." The court held that these immaterial errors do not state a claim under CAN-SPAM, and to the extent state law allows claims under these facts, it would be preempted. It's hard to see if the claims in Mummagraphics failed, how Kleffman's claims would be viable.
Kleffman tried to argue that the term "misrepresented" in section 17529.5(a)(2) should be construed with reference to other unfair business practices-type statutes, namely, the notoriously amorphous section 17200. According the Kleffman, the spam statute should cover not only header information that is deceptive, but also header information that's "likely to deceive." The court finds that Kleffman's argument is untenable as a matter of statutory construction (the specific provision of the spam statute uses the term "misrepresented," and does not use the term "misleading"). Second, the header information prong, which uses the term "misrepresented," can be contrasted with the subject line prong, which actually uses the term "misleading," and which the court implies has a much broader reach. The court also notes that there's a specific section in California's spam statute which speaks to the use of multiple domain names (17529.4), but section 17529.5(a)(2) says nothing about the use of multiple domain names. Finally, the court notes that the construction urged by Kleffman presents a huge preemption problem (citing Virtumundo).
It's nice to see the California Supreme Court come out on the right side on this one. That said, it's painful to see that the dispute had to be litigated through three different courts to achieve a clear answer. This is one of those arguments that anti-spam plaintiffs often make that is out in left field. At least there's some case law to point to in answer to these arguments.
Where does this leave us? In California at least, subject line claims continue to be viable under the broad "likely to mislead" standard. Header information claims, on the other hand, will be much harder to bring. As long as you don't violate any other rules in registering the domain names or acquiring the recipient's email addresses, sending emails from multiple (albeit accurate) sources is not a violation of either federal or state spam laws.
[corrected to note that the decision came to the Ninth Circuit from the Central District of California and to make a few edits (reversed "misrepresented" and "misleading")]
Posted by Venkat at June 21, 2010 10:13 AM | Spam