In a recent decision, the Northern District of California held that e-mail harvesting without permission may give rise to a cause of action under the California Penal Code and based on common law misappropriation. More striking, however, was the court’s ruling that the federal CAN-SPAM Act, 15 U.S.C. § 7701 et seq., preempts two California anti-spam statutes. Facebook, Inc. v. ConnectU LLC, — F.Supp.2d —, 2007 WL 1514783 (N.D. Cal. 2007).
In the litigation, Plaintiff Facebook, Inc. contends that Defendant ConnectU, Inc. violated several federal and state statutes and engaged in common law misappropriation when it collected e-mail addresses of Facebook’s registered users and then sent them commercial e-mail, encouraging them to switch to ConnectU. Among its claims, Facebook argues that ConnectU violated California Penal Code § 502(c), California Business and Professions Code §§ 17529.4 and 17538.45, and CAN-SPAM, 15 U.S.C. § 7701 et seq. ConnectU moved to dismiss several of these claims, pursuant to Federal Rule of Civil Procedure 12(b)(6).
The trial court denied ConnectU’s motion to dismiss the claim under California Penal Code §502(c), holding that Facebook sufficiently alleged ConnectU "knowingly" accessed Facebook’s website and took, copied, or made use of data it found thereon "without permission."
The court also denied ConnectU’s motion to dismiss Facebook’s misappropriation claim. Rejecting ConnectU’s argument that the federal Copyright Act preempts the common law claim, the court held that the e-mail addresses at issue are not works of authorship, nor are they elements of some larger work of authorship, so they do not fall within the scope of the Copyright Act.
However, the court granted ConnectU’s motion to dismiss California Business and Professions Code §§ 17529.4 and 17538.45, holding that these California statutes are in fact preempted by the CAN-SPAM Act, 15 U.S.C. § 7701 et seq. That legislation provides as follows:
This chapter supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto.
The court rejected Facebook’s argument that the California statutes fall outside the scope of preemption because they focus on the collection of email addresses, stating that both provisions still plainly regulate the "use of electronic mail to send commercial messages" within the preemptive effect of the CAN-SPAM Act. The court also held that "neither [statute]… purport[s] to regulate false or deceptive email, or require such falsity or deception as an element of the statutory violation."