walton that's correct ok go ahead and support what we have here is a classic case of spam there was some fundamental confusion by the lower court about who was involved  what exactly the law requires unlike many of the other cases this is a case that does not just involve impairment of the identity of the sender this is what kilbride talked about in terms of complete obstruction still to this day the identity of the sender is unknown so when the trouble with the fundamental mistake that was made by the trial court was looking at  the message was sent through it's the equivalent of big spammers sending through a fake g mail account spam out and then saying well you know where it came from it came from g mail so i guess the question the question i'd like you to focus on is how difficult would it have been to ascertain the identity of the sender what kind of investigation would the recipient have to undertake in order to determine that information if it's determinable at all well that's the thing you're your honor i mean potentially it could very well could be impossible in this particular case maybe through some forensics using linked in's servers and trying to track down through a very sophisticated means sometimes law enforcement can do it if they have track down an ip address and this came from somewhere but given the fact that this isn't a casual spam operation these were many spams that were spent this is probably a very sophisticated that case says that to avoid preemption you have to show that the header is materially false or materially misleading not just that it's false in identifying the sender and them i don't really see why it's material i mean you can tell it's spam you can tell it's commercial e mail just like junk mail in your mailbox it doesn't pretend to be from your  best friend saying he's being held by kidnappers and in some foreign place and it's ten thousand dollars it doesn't say it's from your priest or minister or rabbi i don't understand how you distinguish gordon and could you expand on that a little sure the can spam act defines in seventy seven zero four that when you it is material so we're bound younger stand by our previous interpretations of the act and that's why i asked about gordon i understand that but in gordon you were able to determine from the who is look up easily who the identity of the actual sender was so there was there was not an issue there this was not a completely fake account that was made up and then concealed so that you could no longer track down who the actual identity of the sender was well here in the center linked in and that's spam that sprayed to this group no your honor it was actually what it what i'm what i understand was actually sent from a link and participant it was on their network so the fake was the leanna christian there is no liane a christian the senate through linked in which is just like me creating a fake g mail account and then sending it through g mail google has not initiated they are not the sender point is that there concealing their identity you don't know necessarily that it's spam number one number because it was from an unknown person and it says how to make a million dollars a day or something well number one that could be legit of an email but number two the whole point of the can spam act is to cut down on the proliferation of this type of information and the other point of that congressman simply had in mind by being able to know who the identity of the sender is then you have an ability to contact the sender and prevent further communications here you don't have that ability you're going to keep getting bombarded with more and more spam wasting more and more more and more time more and more deletions that that's exactly what the attempt by can spam was to prevent so if you don't go ahead i don't think you got to my question about gordon how and why should we distinguish gordon because in gordon the sender was identifiable easily and there was no concealment in other words they didn't just disappear and you could never track them down you sender isn't linked in the sender is this nonexistent person linda something it's somebody we just don't know who it is exactly linked in did not remember the words are initiate linked in didn't initiate any of this they're merely the service being used by somebody like a g mail or like anything else not like email i know that there's this rule that we judges are not supposed to join affinity groups but we can use g mail so you're not going to find federal charges on linked in by and large where you will find judges who use g mail and there's a difference because there is no affinity group for example  oh if you like developing film and your darkroom will be a group and you may get a ads that are sprayed to the group from stores that sell darkroom chemicals but a g mail is just for email that everybody uses and you don't have to have any kind of affinity with other users that's great but linked in is very similar you don't have to necessarily have any affinity you  can falsely create something just like you can with g mail it isn't like these people know each other and then sign up together these are completely unknown individuals that can just sign up for these interest groups with then it might be a different type of website service or or mail service or communications service but when you look at seventy seven zero for a through c it's no different somebody is using a  computer to hide their identity which is exactly what can spam was attempting to prevent and there are not only impairing they're completely obstructing their identity whoever the sender is is completely obstructed and there is no way especially what's been played in the complaint to actually determine who that sender was and i don't think the defendants have ever even attempted to argue that there is a way to identify the actual sender well how did how did you to come up with the names of the various dot com and the two individuals and well correct so you you have to keep in mind that in order to even we're talking about the can spam act here in order to be be spam you have to have somebody that's identified in other words spam as commercial e mail where somebody is attempting to either promote a pornography site primarily or some other service or product and so spam by definition always contains somewhere where you can click and it's going to take you somewhere where you can identify someone but i thought our decision  gordon sort of took a holistic approach in analyzing the question of how easy is it to determine the sender and that we approved looking at sort of the   mail as a whole including the sender the the subject line and perhaps even the body of the message that it contains in asking the question how difficult would it be to determine the sender so absolutely how did you do it i mean you've obviously named all these entities as as defendants in the lawsuit well that's the confusing part we never identified the sender the advertisers the people actually selling the book being advertised under california law are strictly liable for the message being sent so that's why they're sued ok you can always find out who the spam is meant to advertisers and say please take me off the e mail distribution list that's not going to do absolutely not and these are you know multitudes of senders creating fake accounts all over the world and they have they could care less if the advertiser or anyone else tried to communicate with them they're pushing out millions of spam they are not going to slow down so they're paying for anything if you can look at the subject line and find out who the sender was  advertiser in spam ok and if the standard was if you can identify the advertiser then you can't sue well then there would be no such thing that can spam that would be completely even are you sure that it looks it looks to me as though the purpose might well be served suppose you infer purpose from the construction of the statute to keep away spam that's going to keep people for example i imagine all of us get spam now and then that says something's gone wrong with your pay pal account or with your visa or something like that click on the link and you can fix it and then you click on the link and the first thing  wants is your password and maybe your bank account number and that's dangerous spam if anyone's misled by it they're going to get cleaned out on the other hand there's spam that's just like junk mail in  mailbox and that's what this being appears to be junk mail and send this twenty five dollars or i don't know what it was for some book or pam friend will tell you how to get rich and i can see a real difference in the harm that congress was trying to prevent obviously meant to prevent the first kind of harm where the spam misleads you into giving up information that's harmful to you and not the second kind of harm precisely because it's just like junk mail in your mailbox why shouldn't the statute be read that way and why shouldn't gordon be read as saying the statute should be read that way well i  think the very title of the act reveals congress's intent you think congress is is intent to keep all the junk mail out of your mailbox no it is not to keep all junk mail out of your  box but it's to cut down on it if you go to the congressional findings and policy and look at it it's talk of the it's the controlling the assault of non solicit marketing it's not controlling the assault of fraudulent e mails or controlling the assault of fraud it's controlling the assault of non solicited a marketing which is exactly what we have in this case and if you look at the congressional finding policy that are stated in seventy seven zero one it goes through extensive findings about electronic mail has become an extremely important popular means of communication the convenience and efficiency  electronic mail may result in cost to recipients who cannot refuse to accept such mail and who incur costs for the storage of such mail over the time or for the time spent accessing reviewing and discarding such mail  i don't believe so i don't know yet that it went i can't tell you for certain i can't tell you for certain but i don't know that would would matter but i believe so our position is that the district court got it right that gordon i know that but then of course what we shouldn't distinguish gordon so what what gordon and judge solomon i think addressed this in his questions to counsel is that we understand gordon took a holistic view of what the e mail what is in the email not just the from name not just the domain name in the center not just the subject matter but everything about the email and it is there anything about that email ever in looking at the email in its entirety that is materially false that is tending to mislead or actually misleading when he says that materially false as is from linda christian and it isn't the e mail itself was sent by linked in the district court correctly found that the linked in linked in the company such desultory word your adversary points out as  iate that word is not a linda christians i'm sergeant and there is no linda christiansen so she can't be the initiator and if linked in didn't do it deliberately but was in essence just a past platform then it seems that under the statute somewhere out there in the world is the truth originator of this email how do we find out that if well there are multiple different ways and well if if i if i hit who is and i ask about linda christiansen that's not going to help me that's correct if i ask who is linked in and i can find that out but that's a dead end because i wasn't the one who actually ginned up this email message so it is important that you can do a search and find the link didn't have a computer search of what that that's what i'm wrestling with here what is it that i would look at in order to determine the true sender so the sender there are multiple things you can do one is you can complain to linked in and linked in may provide the identity of the user secondly here you can click on the link in the email this is what the california court of appeal ski found that and wagner speier vision if you can find out who the sender is the true sender is or the advertiser from following a link or looking at the body of the email but wouldn't if i talk to  ed in i'm the aggrieved plaintiff and i contact linked in it seems to me at best linked in is going to give me an ip address maybe after a forensic examination of the email router history of this message and then what annoyed so we don't know it's not within the record of what linked in would do but congress is purpose here was to ensure that people have a way of finding out how to contact the person responsible for sending so they can focus and not alleges that that there is no way to do that and reading the allegations is presumed to be true you haven't convinced me that that that allegation is not a plausible allegation at this point well i think the purpose of that the reason why congress was intended or intended to carve out from preemption materially false or misleading complain to linked in and this is in the record this is e r ninety one it's a copy of the e mail the the plaintiffs received there are multiple ways in that e mail body from linked in that say would you like to flag this e mail as spam or inappropriate find out how to modify your linked in settings so you don't receive emails like this anymore but i thought that was the reason that the senders use multiple dot com address so that if i block one dot com address then other dot com addresses will step up and more junk e mail will flow into my account but include in classman view vonage holdings that the ninth circuit certified a question to the california supreme court on whether the use of multiple domains that were truthful demands just as linked in dot com here is a truthful domain if that was deceptive or misleading and the california supreme court said no as long as that domain is traceable to an actual body or a company as linked in dot com is here there is nothing materially misleading about the use of that demand and that's because so you could then run who is search on on this dot com entity and it would take you two kinetics or quick sales i mean it looked to me like there were multiple levels of l l sees and other corporate forms of organization that were skating who was the true sender of this and they used faults names in the original sender align the linda christiansen's to further aggravate the possibility of identifying the sender why isn't that different from what we had in gordon so it's it's it admittedly these are these are different facts from what was in court and we can see that this is a this is not a on all fours case that the defense the problem is where do i draw the line i mean you know what we tried to to articulate a workable rule in jordan and that set of facts but as you point out these facts are different arguably they're more agree just in terms of obvious skating the identity of the sender so i guess the question is have your client stepped over the line in so we would argue that they are they are not more egre there is a there is a control in place here and that is the fact that linked in which is a respectable company was the company through which these e mails were sent through groups that no reply or group stash no reply at linked in dot com that is the way that the plaintiffs or other recipients of these types of emails can control the receipt but i would further yes in order to complain to linked in when you have to know the identities of all of the various dot com that were employed by your twelve or fifteen of them in order to effectively stop these messages from coming and that would have been the case in classman vonage as well and the supreme court said as long as it's a legitimate domain name there and it's not materially misrepresenting who the sender is even though the that the sender in that case allegedly used multiple domain names to avoid spam filters here there is a mechanism this is in the record year ninety one again multiple ways that the use but on the original e mail message that came through linda christians and yes and this is in the record there is a button that says in is this discussion inappropriate abusive offensive spam job flock there's a button there and then there's another but nother link that says stop receiving e mail for each new discussion and so there are ways within the body of this e mail that the user that things that the user can take to control the receipt of similar messages i'd assume that if that button with it would only affect emails coming from that particular dot com account  well so now we're getting outside of the record here i appreciate that and but that that would control how linked in which is the sender of this e mail would send e mails to this years or when i just people if i click on that button will may just be blocking linda christian and i'll still get the junk mail from click bait or whatever it's called from other fictional names your honor i'm sorry this is outside of the record so we don't we don't know but i guess the concern here is have the plaintiff shown enough so that this case ought to proceed on the theory that because of the manner in which the defendants have obfuscated the originator of the message it could potentially be false and fraudulent under the california statute which would be exempted from federal preemption and therefore the case should go forward to discovery to answer some of these or misleading we can see that if the subject line said something to the effect of open this e mail to receive twenty five dollars gift certificate that could potentially be deceptive there are cases like that that have been accepted but that's not the case we have here we have a truthful domain name we have a a from name that we would say is not really distinguishable from the fanciful names in cases like like not materially false it's not material it's not it's not tend to mislead or actually false material but the difference in got superman was that he had he was identified and some of those or entities that he controlled were were identified in those domain names whereas here the domain names are entirely fictitious there is no linda christiansen well that's this materially false and gordon when this court was looking to what what does false mean what does deceptive mean does that mean an error doesn't mean just not true and the court said it has to be grounded in traditional to theory state law tort theory and what in that is tending to mislead or actually misleading there's nothing in this e mail that tends to mislead or actually misleads the recipient and this is what the district court found and the plaintiff conceded this at the court below they didn't believe that that there was anything in here that that actually deceived them or tended to mislead them this was not a namely an a christianson was not a name i'm sorry that silverstein did not know who that was that's right this was a this was a totally insignificant name it's not like in hong the reunion where the sender name appeared to be a person known to the recipient i believe it was the recipients minister or other cases where the the actual recipient name that the sender uses a program that puts the recipient's name in the sender name so it's as if i were to receive an e mail saying tell a newbie at gee mail just sent you an e mail about this right there is nothing that tends to mislead or is mature or are actually misleads about this e mail if i can turn to one other matter that the plaintiff did not address t that he was not actually deceived and there's nothing in here that tends to deceive to turn back to judge thomas question of how do we find out who these senators are who the recipients are when you click on the link and these are the facts in the wagner v case when you click on the link it takes you to a website and that's who's selling a product and and that is a nother way that the sender or the person responsible for sending the e mails can be identified and in fact was identified here burned accounts in other words this isn't like you can hit unsubscribe and subscribe from whoever that original initiator is sender from ever sending you anything again if you are going to unsubscribe from all of linked in just like you can terminate g mail then you can get the legitimate email that you're trying to receive so that's not a practical solution and these accounts you have to remember are burned no it wouldn't it wouldn't just block if the recipient clicked on whatever was at the bottom of the email message from linda christiansen it wouldn't just block further emails from linda christians now and you have to remember i mean there's complaint here they're not going the spammers this is completely fraudulent activity they're not even going to use that christianson address again as soon as they've successfully sent one message out with that false identity it's burned create a new false one send that so in creating a new false name that's right and i'm wondering if you do block the account as a block everything from the seller's d r the seller site now i mean i don't care since that since the the person checking is email wouldn't know linda christian anyway since she's not a good person and the most that they could care about is blocking any attempts from this particular company to send them e mail and i'm wondering if blocking the dot com would do it on linke in it won't ultimately because you have to remember these spammers out there are independent of the advertisers the advertisers do have the ability to pay them which is the whole reason why they're liable but  out there they they really don't have a care about responsibility or anything like that they might be overseas primarily they're just cranking this stuff out as much as they can and to try to make as much as they  except that the relationship isn't quite is as direct you know they have this ability to pay these people but they it's not like they specifically hired them up front and have conditions ok you're going to send exactly this many mailers we're going to pay you always get paid if somebody orders the product they get some sort of a fee for that or potentially a click your time has a thing where your thank you very much case just argued is submitted thank you for the argument we'll now he argument in the case of the sort of have me purses michael picker number seventeen dash one five two six