False Headers Violate California Law Says Court March 4, 2012 # 6:15 pm # Legal Challenges, Specials # One Comment 3 inShare On February 24, 2012 in the matter of Balsam v. Trancos, Inc., the California Court of Appeal held that: (1) commercial e-mail header information that uses a sender domain name that neither identifies the actual sender on its face, nor is readily traceable to the sender, constitutes misrepresentation in violation of California’s Anti-Spam Act; and (2) the federal CAN-SPAM Act’s preemption clause did not bar application of the California statute. In short, California’s Anti-Spam statute (Cal. Bus. & Prof. Code § 17529.5) makes it unlawful to send commercial e-mail advertisements containing or accompanied by “falsified, misrepresented, or forged header information.†However, the act fails to define “header information.†In 2010 the California Supreme Court decided to use the federal definition from the CAN-SPAM Act (Kleffman v. Vonage Holdings Corp.). The CAN-SPAM Act defines “header information†as “the source, destination, and routing information attached to an electronic mail message, including the originating domain name and originating electronic mail address, and any other information that appears in the line identifying, or purporting to identify, a person initiating the message.†Kleffman simply held that a commercial e-mailer is not misrepresenting its identity when it uses multiple, randomly-named but accurate and traceable domain names, in order to avoid spam filters. Read more: http://performinsider.com/2012/03/false-headers-violate-california-law-says-court/
Whois protection is just a "proxy". Depending on your provider, you can actually receive emails, physical mail, and even phone calls through the proxy data that can be found in your whois record. If you now come up yourself with a "Fictional Name", a skype number, and a P.O. Box, I don't see how this is different from a whois privacy service. There is not enough information about what was going on there. For example I'm wondering if the sender might have missed to put his disclaimer in the email. Did it say that he used privacy protection by the way?
"The court found the header information on each of these e-mails was falsified or misrepresented because it did not accurately represent who sent the e-mail: ***8220;All of these emails came from Defendant Trancos, but none of the emails disclose this in the header (or the body or the opt-out). " Wow, thats just about the biggest bunch of horeshit I've ever read.
Wait, am I reading this right? Trancos didnt have its own name, address in the BODY? or Just had its address in the body? If you place your company name in the body, regardless of what the domain shows, is that fine? I'll have to get our Leagle Eagle to comment on this..
I have always thought the mailers that didn't put their company names in the emails were making a big mistake and playing with fire. I have a very good friend that actually got prosecuted federally under can-spam because he rented servers from a guy using a pre-paid card. That guy in turn rented them from someone like softlayer using a fake company name and address. During a motion to dismiss the judge ruled that the fake name and address used the rent the server constituted a violation under the laws provisions of not putting a real name/address in the emails. So understand it's not always what the law says implicitly but how some judge is going to rule on it. If a person is doing something to hide their falsify their identity they are making a big mistake. I do not believe whois privacy protection falls under this category since you are not hiding your identity you are just making it non-public. It can be easily obtained by following the proper channels. No different than an unlisted phone number or caller id block.
I read some of the full doc meanwhile, the judge said things like whois privacy is not acceptable because the consumer cannot know if you truly receive and process the unsubscribe request and he just has to rely on you that you do it. Also he cannot call you up and ask about it, etc. And he cannot report your company to the BBB or some AG.. I think it's really crazy what this judge is doing.. in my opinion this is way to strict and has nothing to do with CanSpam. In such cases the judge has a technical advisor, right? it sounds to me as they had no clue about the actual topic. I think CanSpam wanted no falsified headers because otherwise it might be technically impossible to unsubscribe from the sender. I doubt their intention was that the mailer has to keep his company name in the from name and domain so the users can report him to the BBB...
Thats the problem. The way the law is written, it's too easy for a judge to look at someone using whois privacy, and say, hey this guy is breaking the law by trying to hide his identity.
It is almost guaranteed that a typical judge is going to mis-interpret a law that depends on technology definitions... Look no further than SOPA/PIPA public debate to see why.
ADK now has a warning notice when you log in linking to that article. Very curious what the Legal Eagle has to say about all of this.
I dont see the problem with this unless you arent putting your address in the body to begin with. If your address is in the body, whats the big deal about placing it in the WHOIS as well? You arent fooling anyone with WHOIS protection.
It's pretty easy to get access to the whois database information. So you could just look up every single domain that matches X and blacklist it regardless of any thing else. Where if you put it in the email, but not the whois information all they have to go on is what domain mailed them.
