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Monday, June 21, 2010

E-Mail Headers Designed to Elude Spam Filters Aren't Unlawful in California

by Thomas O'Toole

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 Another anti-spam litigant took one on the chin today. The California Supreme Court ruled in Kleffman v. Vonage Holdings Corp., No. S169195 (Cal. June 21, 2010), that an e-mail marketer's act of sending commercial e-mail messages from multiple, random and nonsensically named domain names is not unlawful under California's anti-spam statute, Cal. Business and Professions Code 17929.5. Even if the sender's purpose is to evade spam filters.

By using multiple domain names, an e-mail sender is able to decrease the volume of e-mail emanating from any one domain, a strategy that minimizes the chance that a message from that domain will be flagged as spam. By using domain names that are not identical to the sender's actual name, the sender makes it more difficult for individuals to block their messages. For example, a simple directive to an anti-spam filter to block all messages from vonage.com would have failed to block the Vonage messages that prompted this lawsuit. (However, is should be noted that, had the plaintiff informed Vonage that he no longer wanted to receive their marketing messages -- his right under the CAN-SPAM Act -- he would most likely have succeeded in terminating the company's e-mail solicitations.)

The unanimous court said that the statutory language -- which forbids falsified, misrepresented, or forged header information -- did not prohibit Vonage's e-mail delivery tactics. Nor could the court find anything in the legislative history to support the plaintiff's argument that state legislators had intended to outlaw sending e-mail messages from multiple domains.

The court was also concerned that, had it embraced the plaintiff's expansive theory of liability, the state's anti-spam so interpreted would reach into business practices that Congress, in the federal CAN-SPAM Act, said states were not allowed to regulate.

The bottom line following this decision is that, in California, e-mail marketers can be clever but not dishonest in their attempts to get their messages delivered.
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