A California Supreme Court in the case of  Kleffman v Vonage Holdings has held that it is not illegal to send spam from traceable  multiple domain names for the purpose of bypassing spam filters.

This ruling essentially allows email marketers to create multiple identities, as represented by multiple domain names, to spread out the volume of their email advertisements, reducing the volume sent via each single domain name.

This strategy fools  ISPs into believing the emails emanate from multiple senders when in fact they are sent for the benefit of one entity, but  doesn’t fall afoul of California law.

California law apparently sanctions this form of email marketing as long as the  domain names used to send email advertisements are reflected in the header information, actually exist, are technically and literally correct, and fully traceable to a company’s marketing agents.

The Court’s ruling appears to sanction the construction of multiple email addresses to circumvent spam filters. The outcome will make it difficult for consumers to sue email marketers in California which has separate legislation which, in prohibiting fraud, is tougher than the Federal CAN-SPAM Act.

Internet phone company Vonage used it’s marketing agent to construct a list of eleven nonsense domain names for the purposes of sending  unsolicited bulk commercial emails to users offering them savings on their broadband telephone services. The 11 different domain names were traced to a single physical address in Nevada where Vonage’s marketing agent was located.

The email marketing activities resulted in complaints by users when the domains bypassed their spam filters and multiple advertisements and landed in their inboxes.

A consumer Mr. Craig Kleffman initiated a class action lawsuit against Vonage Holdings in a California District Court alleging the use of these domains by Vonage was tantamount to using false header information.  As  none of the domains signified the origin of the messages, namely that they were from Vonage or their authorised representative,  Kleffman argued they were in violation of  anti-spam law.

The use of the different domains by Vonage was a transparent attempt to bypass  spam filters. Vonage could have easily and less expensively sent all of its e-mail advertisements using a single domain name, and the reason it used multiple domain names was to mislead email service providers, recipients and their spam filters.

California state law makes it illegal for email headers to be falsified, misrepresented or forged. The Federal CAN-SPAM Act also renders illegal the practice of falsifying email header information.

However the Court rejected the argument that the email marketing conducted by Vonage’s marketing agent violated State anti-spam law and  ruled State law was pre-empted by the US CAN-SPAM Act in any event. Whilst the Federal law prevents individuals suing for spam violations, there is an exception for state laws which relate to fraud.

Upon appeal to the Ninth Circuit the California Supreme Court then ruled that  the domains were properly registered to Vonage’s marketing agent in Nevada and no violation of the Act had occurred.

The  Appellant contended that the use of the domains was likely to deceive and amounted to unfair business practices as they didn’t provide any indication to either the recipient or it’s spam filter the advertisements were  from Vonage.  Although the emails literally and truthfully identified the sender, it was put to the Court that they were part of a calculated scheme to avoid anti-spam legislation, implying that they originated from different sources.

However the Supreme Court rejected this argument and found that the legislature didn’t intend to prohibit the use of multiple domain names with fully accurate and traceable header information. The Court simply ruled that there was no violation of law because the email   advertisements didn’t contain false information. The failure to send mail from a single domain name that includes the word Vonage did not constitute a misrepresentation.

The Court ruled as follows “a single email with an accurate and traceable domain neither contains or is accompanied by misrepresented header information merely by virtue of the fact that it’s domain name is ‘random’, ‘varied’, ‘garbled’ and ‘nonsensical’ when viewed in conjunction with domain names used in other emails. An email with an accurate and traceable domain name makes no affirmative representation or statement of fact that is false

The Email Sender and Provider Coalition, argued on Vonage’s behalf in a friend of the court brief that there was a  limited and  diminishing pool of available domain names. This meant that  companies have little practical option other than to  select one that is  ‘random’ if only a random domain is available.  To outlaw the practice of sending emails from non-sensical domain names would therefore be unworkable.

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  3. pacelegal says:

    Hi best town

    Thanks, that’s very flattering. Are you an email marketer I wonder? Decisions under the SPAM Act are always of interest to email marketers, and I was struck by how onerous the equivalent legislation was in Australia when it was introduced. The penalties for sending one unsolicited commercial electronic email are very high. By contrast I recall the US legislation being criticised by anti-spam activitists as legislation which condones spam providing you meet certain specifications in the Act.

    One single unsolicited commercial email from Australia or with an Australian link without consent, either express or implied, and you can face huge fines and prison. Whether or not consent is present can be difficult to establish sometimes, especially with inferred consent, so it is a little scary. Of course there have been prosecutions under criminal law with jail sentences for spammers under the US CAN-SPAM Act and for associated criminal offences, and civil action by the FTC.

    California has fairly strict laws against SPAM compared to the Federal US CAN-SPAM which requires the Federal Trade Commission to enforce it’s provisions. CAN-SPAM provides only a limited private right of action for practical purposes, which limits private suits or class actions by individuals who feel their rights have been violated like Keffman. Washington state law also restricts consumers from suing for violations. CAN-SPAM supersedes state anti-spam laws that do not deal with fraud and passed through Congress just prior to the much tougher anti-spam law passed in California. As you may know the pre-emption State legislation except to the extent that a State law prohibits falsity or deception in any part of a commercial electronic mail message or information.

    Spam is a general annoyance to me, but the type of spam I really detest is are the spreading of malicious software, trojans and computer viruses and other harmful practices caused by botnets using malware infected PCs to wreak havoc and commit fraud, steal bandwidth, and turn computers into zombies. I have had to remove two malicious scripts from my site, yet I have decent security protection. It can be time consuming to manually remove the offending script from each page. Nobody is fond of scams, identity theft, and other forms of cybercrime perpetrated through spam, however there are legitimate email marketing practices. Of course the cost is lower than other forms of marketing some would argue, although if you can’t trust email marketing lists purchased, I’d imagine some investment goes into targeting consumers if done inhouse for a company.

    I don’t think legislation provides the total solution and user education and technological measures will prove to be a more effective strategy.

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