The short version is that Hypertouch sued Valueclick in 2008 under both CAN SPAM and the California anti-spam law. Eventually the judge in the case ruled that there was no clear evidence of fraud, therefore CAN SPAM preempted the California law.

Hypertouch appealed the case.

Yesterday the appeals court published their opinion and kicked the case back down to the lower court.

The trial court granted summary judgment, ruling that the CAN-SPAM Act preempted Appellant‟s section 17529.5 claims. Although the Act expressly exempts from preemption state laws prohibiting “falsity or deception” in commercial e-mail, the court concluded this exemption was only intended to apply to state statutes that require a plaintiff to establish each element of common law fraud. The court entered judgment dismissing the case in its entirety and awarded Respondents approximately $100,000 in costs.

On appeal, Appellant argues that the court erred in ruling that the CAN-SPAM Act preempts claims arising under section 17529.5. In addition, Appellant argues that: (1) it introduced sufficient evidence to establish a triable issue of fact as to whether Respondents violated section 17529.5; (2) section 17592.5 claims are governed by the three-year statute of limitations in Code of Civil Procedure section 338, rather than the one-year period described in section 340, subdivision (a); and (3) the trial court abused its discretion in awarding Respondents $100,000 in costs.

We reverse the trial court‟s grant of summary judgment, concluding that the CAN-SPAM Act does not preempt Appellant‟s claims and that Appellant has raised a triable issue of fact regarding whether Respondents violated section 17529.5.

Slashdot article

Metnews Article

The Attorney General has decided not to enforce the law as it stands. The law does contain private right of action, so there may be private suits filed against companies.

I can’t necessarily fault the state senator who drafted the legislation for her intentions.

The law was drafted by Maine state senator Elizabeth Schneider, who said that she tried to align the legislation in accordance with COPPA. She wanted to expand protection for minors after she attended a national conference on prescription drugs and was shocked to learn about some of the techniques companies use to mine information from adolescents, including giving away toys and iPods in exchange for filling out surveys.

She attributes the bill’s problems to the fact that no one showed up to the public hearing about it, where problematic portions could have been discussed and reworded. “I believed that room would be filled with people in opposition to the bill,” she said. “Nobody turned out in opposition to the legislation.”

Good intentions with the bill, protecting minors from predatory marketers. Whether or not the blame is actually on the people who failed to oppose the bill is not nearly as obvious to me.

HT: @ddayman
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Don’t forget to participate in the DKIM implementation survey. For ESPs. For ISPs. Check back next week for results.

Here is hoping that the new legislation that Sen. Schneider plans to craft during the next legislative session actually accomplishes her goals.

The law defines personal information as:

4. Personal information. “Personal information” means individually identifiable information, including:

A. An individual’s first name, or first initial, and last name;
B. A home or other physical address;
C. A social security number;
D. A driver’s license number or state identification card number; and
E. Information concerning a minor that is collected in combination with an identifier described in this subsection.

While this law is less onerous on marketers than the Utah and Michigan laws, it will make marketing in Maine more challenging than in other states.

Findlaw review
Campaign for commercial-free childhood review
Privacy Law Blog review

Jeremy Jaynes was a well known spammer who went under the name Gavin Stubberfield. He was pretty famous in anti-spammer circles for sending horse porn spam. In 2003 he was arrested under the Virginia state anti-spam statute. He was initially convicted but the conviction was overturned on appeal.

Ethan Ackerman has blogged about this case, including a recap today.

Venkat Balasubramani has also blogged about this case.

Mickey Chandler has the docs.

John Levine weighed in.

News Articles: CNN, Washington Post, CNET