E-Commerce Law Week, Issue 358

FTC Finds No ADVantage For "ADV"
In a report to Congress published in mid-June, the Federal Trade Commission ("FTC") flatly rejected a proposal that would require senders of unsolicited commercial email to include a mandatory “ADV”  label in an email’s subject line.  Recognizing what many would say is the obvious conclusion, the FTC told Congress that a mandatory labeling requirement would do nothing to address the real problem behind spam -- identifying and finding those who send unlawful, unsolicited emails.  The CAN-SPAM Act required the FTC to send this report to Congress and further directed the FTC to either set forth a labeling plan for commercial email or else explain to Congress why the FTC would not recommend labeling.  In addition to finding that a labeling requirement would be ineffective because spammers wouldn't comply with it, the FTC highlighted several practical and technical concerns associated with a labeling requirement, including the increased bandwidth costs associated with filtering messages based on their subject line.

French Data Protection Authority Blows the Whistle on Whistleblowers
Given frequent reports of corruption in the French government (particularly persistent reports surrounding President Jacques Chirac), we can't quite decide how to view the June 25th announcement by the French data protection authority (the “Commission Nationale de l’Informatique et des Libertes” or “CNIL”) that it had rejected two corporate whistleblower programs on privacy grounds.  On the one hand, it certainly is true that corporate wrongdoers like to keep their behavior private, so you might view CNIL's action as an unintentional display of candor.  On the other hand, CNIL's language rejecting these programs based on high privacy principle seems a bit hypocritical.  It's also the latest chapter is a ongoing series of conflicts between US and French law, and one that presents potential compliance problems for US and foreign companies subject to the Sarbanes-Oxley Act.

Appeals Court: FCRA Preempts "Some" of California's Financial Privacy Law
The good news?  The US Court of Appeals for the Ninth Circuit on June 20 finally issued an opinion in a lawsuit challenging the affiliate-sharing provisions of California's financial privacy law (S.B. 1) as preempted by the Federal Fair Credit Reporting Act (FCRA).  The bad news?  The court's ruling did not definitively resolve whether there are any aspects of S.B. 1's affiliate-sharing provisions that are not preempted.  The court instead remanded American Bankers Association v. Gould, directing the lower court to decide what kind of information shared by affiliates, if any, might continue to be subject to S.B. 1's notice and opt-out requirement.

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