Spam Sent After Receipts May Cost Nordstrom

     (CN) – Nordstrom must face claims that it spams in-store shoppers after telling them it needs their email addresses to send electronic receipts, a federal judge ruled.
     Lead plaintiff Robert Capp says he purchased several items at a Nordstrom retail store in Roseville, Calif., with his credit card. After the cashier swiped Capp’s credit card in a portable device, the cashier allegedly asked Capp “to provide his email address for the stated purpose of emailing his receipt.”
     Believing this was necessary to finish the transaction and receive a receipt, Capp provided his email address, which the clerk typed into the same portable device used to swipe the credit card, according to Capp’s complaint.
     Capp received a receipt for the transaction via email, but also found himself on a Nordstrom mailing list for promotional materials. He claims that Nordstrom began to send him these emails on a nearly daily basis, and that he has also been getting more emails from other retailers. Capp believes that Nordstrom may have shared or sold his email address without his permission.
     Capp also alleges that Nordstrom “utilized the email address he provided to reverse append and obtain other additional personal identification information about him.”
     Nordstrom had Capp’s complaint removed from Placer County Superior Court to the Eastern District of California. It moved for dismissal, arguing that an email address is not “personal identification information,” as defined by California’s Credit Card Act.
     U.S. District Judge Morrison England Jr. found Tuesday that there has been no published case deciding whether an email address constitutes personal identification information.
     In Pineda v. Williams-Sonoma Stores Inc., however, the California Supreme Court found that ZIP codes constituted personal identification information when cashiers asked for them during credit card purchases.
     In that case, the California Supreme Court defined “personal identification information” as “information concerning the cardholder,” and interpreted the word “concerning” as a “broad term meaning ‘pertaining to; having relation to; or respecting.'”
     “In this case, an email address is within the scope of the statute’s ‘broad term[s]’ ‘concerning the cardholder’ as well because a cardholder’s email address ‘pertain[s] to or regards to a cardholder’ in a more specific and personal way than does a ZIP code,” England wrote. “Instead of referring to the general area in which a cardholder lives or works, a cardholder’s email address permits direct contact and implicates the privacy interests of a cardholder.”
     Nordstrom also argued that its request for Capp’s email address to send an electronic receipt falls within an exception under the Credit Card Act that provides for requests of information required for special purposes that are incidental but related to a credit card transaction.
     This claim may unravel, however, under Capp’s assertion that he believed he was required to provide his email address to complete his purchase and receive his receipt. Whether the email address was required for a special purpose, as Nordstrom claims, is an issue that requires further fact finding, according to the ruling.
     England also rejected Nordstrom’s argument that Capp’s California Credit Card Act claim is pre-empted by the federal Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act), which regulates the transmission of unsolicited “commercial electronic mail messages.”
     CAN-SPAM pre-empts only those state statutes that regulate the manner in which an email is transmitted and delivered, and the content of that email. California’s Credit Card Act does neither of those things, however. England said it instead regulates the request for email addresses. In addition, the Credit Card Act is not an obstacle to the purposes of CAN-SPAM.
     “Here California’s Credit Card Act’s prohibition on the request of ‘personal identification information,’ including email addresses, will most likely have the effect of furthering the purpose of CAN SPAM,” England wrote. “The ‘volume of unsolicited’ and ‘unwanted,’ ‘commercial electronic mail’ will be reduced because the number of email addresses available to companies that accept credit cards for the transaction of business will decline under the Credit Card Act, unless the customer specifically requests, or accepts an offer after the transaction, to be placed on the mailing list.”

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