Existing California law prohibits businesses from requiring, or even requesting, “personal identification information” such as address and telephone number, when a customer uses a credit card to transact business.  Multi-state retailers have sometimes considered this California law (Civil Code Section 1747.08) to be preempted by the federal CAN-SPAM legislation, which preempts any state law that “specifically regulates the use of electronic mail to send commercial messages”.  In a case of first impression, a state Court of Appeal has now ruled that (1) a customer’s email address is “personal identification information” within the meaning of the state statute, and (2) because the state law is not specific to email addresses, it is not preempted under the terms of CAN-SPAM.  The Court of Appeal also found that the retailer’s First Amendment rights of communication with its customers, are trumped by California’s state Constitutional right of privacy.  Thus, while a retailer may conceivably request an email address from customers on other occasions, the Court of Appeals considers that requesting a customer’s email address, during a California credit card transaction, is prohibited by state law.  (Powers v. Pottery Barn, Inc., California Court of Appeal No. D054336, September 21, 2009)

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