Legal Question in Technology Law in California

Spamming in California

I live in California and somebody wants me to be his companys' affiliate spammer. The business is situated in a state where there is no spam law. I will spam here in California using my own computer and with a software that will steal bandwidth from other servers and will provide false return address. Do you think I will get into trouble even though the business is situated in another state that has no spam law? Is the law still applicable to this? Will my ISP sue me if they found out that I have been spamming?

Asked on 8/30/03, 10:50 am

4 Answers from Attorneys

Kim Kirby Davis Dixon Kirby LLP

Re: Spamming in California

Everything Mr. Hoffman says is correct. In fact it amazes me that you even seek legal advice on this issue. It would appear that you already are aware that something is not right. I'd go in the opposite direction and report this company to the CPUC (California Public Utility Commission) the state utility commission where the company is located and the FCC (Federal Communications Commission). This is a HOT topic at both the state and federal level. The CPUC will soon rule on consumer protection rules and the FCC has been cracking down on spamming for years.

Don't mess with this -- if you do you might find yourself looking for a criminal attorney.

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Answered on 9/02/03, 1:03 pm
Edward Hoffman Law Offices of Edward A. Hoffman

Re: Spamming in California

I typically do not respond to the comments other attorneys make about my responses, but I must reply to Mr. Walton's claim that he is "appalled" by what he calls a "knee-jerk" analysis.

First off, I will yield to Mr. Walton's specialized knowledge on the subject of whether the applicable laws are federal or state. He says there are no federal laws regarding spam and he is more expert in this area than I am, so I must have erred in this aspect of my response.

However, my discussion of the requirements of the law is correct and is perfectly consistent with his, so I don't understand his attitude toward what I had to say. He writes as if I said it was illegal to send unsolicited bulk emails under any circumstances, but that is not what I wrote. I explained that there are laws which govern spamming, but I did not say they prohibit it. I said there are penalties for violations of these laws, but I did not say all spam would necessarily be in violation.

I stated that your plan to use a false return address is a violation, which wasn't quite correct, either -- you must provide either a valid return address or a toll-free telephone number so that recipients may contact you and have their addresses removed from your future mailings. Almost all legitimate mass email operations use the reply option instead of the toll-free number, but I should have explained this other option.

The bottom line, though, is that (as I explained) your plan to steal bandwidth and not let recipients know how to contact you is illegal, but there are ways to send bulk email legally. Mr. Walton must have misunderstood what I said; hopefully he will be as "appalled" by his own errors as he was by mine.

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Answered on 10/07/03, 5:39 pm
Timothy J. Walton Internet Attorney

Re: Spamming in California

I am appalled at the answers provided by the other attorneys. They are simply incorrect when it comes to federal law - there are no federal laws regulating spam.

I also feel that they have an inaccurate understanding of California law. It is possible to send unsolicited commercial email to or from California residents, but it has to be labelled in specific ways (see California Business and Professions Code section 17538.4) and it has to avoid certain ISPs (see California Business and Professions Code section 17538.45).

If you are in need of a California that has experience litigating under California spam laws, I encourage you to call me. The knee-jerk reactions of the two attorneys who responded to you earlier are not the only views of current California law.

You can reach me to discuss California spam law at (650) 842-8481, or see my web site at

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Answered on 9/24/03, 12:25 am
Edward Hoffman Law Offices of Edward A. Hoffman

Re: Spamming in California

California law governs your actions in California regardless of the location of your employer. Besides, there are federal laws related to spamming which apply nationwide. They impose certain requirements which you evidently do not plan to obey, since using a false return address is a violation. They also require an opt-out method which actually works. Violators are subject to fines *for each offending email* that they send. Spam a million people illegally and you may have to may a million fines.

The fact that you intend to "steal bandwidth" should be enough by itself to answer some of your questions. You might or might not get into trouble for doing this sort of thing, just as you might or might not get into trouble for any other illegal activity. Nothing is certain in life, but you are planning a large-scale violation of the law. Why do you think this company wants to hire you instead of doing the work itself?

The bottom line is that what you are thinking of doing carries the real potential for very serious civil and criminal consequences. The risk of being sued by your ISP strikes me as just about the least of your problems.

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Answered on 8/30/03, 6:13 pm

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