The High-touch Legal Services® Blog…for Startups!

© 2009-2021 Dana H. Shultz

Hyperlink in Email Can Create Binding Terms

Stained-glass seal of U.S Court of Appeals for the Second Circuit which decided hyperlink caseIn Online Terms can be Binding, even if You don’t have to Click!, I discussed enforceability of a website’s “browsewrap” terms of service. This post discusses how an email hyperlink can create binding contractual terms.

Lawsuit Brought in New York

Elizabeth Starkey filed suit in the U.S. District Court for the Southern District of New York against travel company G Adventures, Inc. The suit alleged that a G Adventures employee sexually assaulted Starkey during a vacation trip. (more…)

Fraudulent Email Prohibitions Supplement CAN-SPAM

Cover of the California Business and Professions Code, which has a section about fraudulent emailIn Commercial E-mail and CAN-SPAM: What You Need to Know, I discussed how the federal CAN-SPAM Act makes commercial email more truthful, more transparent and more avoidable. This post addresses how California law concerning fraudulent email supplements CAN-SPAM.

In particular, this post discusses preemption, by which, under certain circumstances, U.S. federal laws can invalidate state laws that address a given subject matter. (more…)

Facebook Ads can be Electronic Mail for CAN-SPAM Purposes

Facebook logo

When I wrote about the CAN-SPAM Act of 2003 and the effort to limit unsolicited commercial e-mail (Commercial E-mail and CAN-SPAM: What You Need to Know), I noted that “One of the greatest challenges in complying with CAN-SPAM is figuring out exactly which communications are covered.” Much to my surprise, the U.S. District Court for the Northern District of California recently held that that certain Facebook ads were electronic mail for the purposes of CAN-SPAM!


How I Sent my Client Weird E-mails

Gmail logo

This post is somewhat off-topic for my blog, being less about business and more about technology. However, it is being written in the context of my forming a corporation for a new client, and it discusses an issue that I find interesting, so here it is. When I noted that the client and I were having trouble communicating effectively online, he commented that some of my e-mails were “weird”.

I had never encountered these sorts of problems before. The client sent screen shots and a description of his actions. I then saw the source of the problem: I use Outlook, while my client uses Gmail.


Commercial E-mail and CAN-SPAM: What You Need to Know

Seal of the FTC Bureau of Consumer Protection, which publishes a CAN-SPAM guide for businessesUnsolicited commercial electronic mail – “spam” – is the bane of the modern electronic existence. In an effort to limit this problem, the One hundred Eighth Congress enacted the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003. This legislation, usually referred to as the “CAN-SPAM Act of 2003” or “CAN-SPAM”, took effect January 1, 2004.


CAN-SPAM has four main provisions, which together aim to make commercial email (including commercial content on websites) more truthful, more transparent and more avoidable.


Limiting Non-business E-mail: Define Precisely and Enforce Consistently

Last month, my post Court Curbs Inspection of Employee Text Messages discussed an employer that was held to have unreasonably searched employee text messages because, despite a policy stating that employer-supplied technology must be used only for the employer’s business activities, that policy was undercut when it was only selectively enforced.

Continuing this theme, in a more recent case, Guard Publishing v. NLRB, the D.C. Circuit held that selective enforcement of a policy limiting employee e-mails constituted a violation of federal labor law.

In my opinion, Guard Publishing actually made two mistakes. First, the e-mail policy prohibited “non-job-related solicitations” (emphasis added) but did not prohibit other other non-job-related communications. So the employer gave itself the ability to limit only a fraction of all possible non-business communications.


Mass E-mails and Urban Legends: Don’t Believe Everything You Read

A well-intentioned friend recently distributed – to many dozens of people – an e-mail claiming that next month all mobile phone numbers will be released to telemarketers, so it is essential to call the Federal Trade Commission’s toll-free number to opt out of receiving unwanted calls. The e-mail finished by telling recipients to forward it to all of their friends.

This e-mail is false and perpetuates an urban legend that has been circulating for years, wasting bandwidth, processing cycles and disk space!

The truth is that mobile phones are protected from telemarketing; the toll-free opt-out number should be used for landline phones.

For more details, check out and the FTC website.

This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.

Spam Arrest: I Think I’ll Stay as Far Away as Possible

Spam Arrest logo

Today a client received an e-mail bounce-back from Spam Arrest, which provides a challenge-response system to stop automated junk mail. The first time a sender sends e-mail to a protected recipient, the sender must follow a link in the bounce-back message to a web page where, following user entry of a one-time verification code, the sender is identified as a legitimate e-mail sender.

During the past several years I have gone through the Spam Arrest verification process a few times and never thought much of it. But when I followed the link in the client’s e-mail, I saw something that, to the best of my knowledge, I had never seen before: the Sender Agreement reproduced toward the end of this post.