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06/24/14

Idaho Spam Laws



It is unlawful in Idaho to send junk e-mail (spam) or  unsolicited faxes that are advertisements. Idaho’s Consumer Protection Act offers individuals protection against junk email, and also penalizes those who illegally telemarket or fax bulk advertisements. There is scant case law or judicial opinions interpreting these laws in the State of Idaho.

IDAHO’S SPAM LAWS

Idaho’s Consumer Protection Act protects individuals from spam. Idaho law protects against “bulk electronic mail advertisements practices”. Spam is an electronic message “containing the same or similar advertisement, which is contemporaneously transmitted to two (2) or more recipients, pursuant to an internet or intranet computer network.” A “computer network” is a minimum of two (2) remotely connected devices or computers are capable of transmitting data through communication facilities.

It is unlawful for a person to use a computer to send spam if the sender:

  •  Uses a fictitious name of a third party in the return address field without that third party’s permission.
  •  Misrepresents any information that would identify the point of origin of the transmission of the advertisement.
  •  Sends an e-mail that fails to contain information identifying the point of origin of the transmission of the advertisement.
  • Sends an e-mail to a recipient five (5) days after the recipient unsubscribed from an e-mail.

A recipient of spam that meets any of the above criteria may bring an action to recover damages. Recipients of spam are able to seek actual and punitive damages. This applie to people who have suffered an “ascertainable loss of money or property” or need to treat an agreement as voidable. Damages are calculated as either the actual damages suffered or one thousand dollars ($1,000), whichever is greater. There is also the option for a class action. The class is allowed to seek the total amount of actual damages suffered or one thousand dollars ($1,000), whichever is greater. In addition to actual damages, the recipient may seek restitution, an injunction against the sender from sending bulk electronic mail, punitive damages, equitable relief, and any other relief which the court deems just and necessary.

The recipient may also choose to seek damages from the transmitter of bulk messages, which does not require actual damages, just simply that the sender falls into one of the statutory classifications. If the recipient chooses to attempt to  recover under against the transmitter, the recovery is the greater of either $100 for each bulk e-mail transmitted to the recipient, or one thousand dollars ($1,000) total.

Idaho law provides several exceptions to the spam rule:

  •      Idaho law does not apply to bulk e-mail that is part of the terms of service of a computer network or an electronic mail provider.
  •      Idaho law does not apply to messages the recipient accessed from an electronic bulletin board (for instance, spam messages found in the comment section to a news story
  •      Idaho law does not apply to electronic mail from an “organization or a similar entity to the members of such organization” (this e-mail list sharing is common among related        nonprofits and political organizations).

SPAM FAXES AND TELEMARKETERS

Idaho’s Spam law does not cover fax machines, as they are a telephonic communication instead of an electronic communication. However, Idaho provides for criminal penalties if someone is using a fax machine to harass or annoy. Using a facsimile to make a false statement to harass or annoy the recipient is guilty of a misdemeanor. Second or subsequent convictions will be charged as a felony.

Faxed advertisements and telephone solicitations are both regulated under the Idaho Telephone Solicitation Act (Title 48, Chapter 10, Idaho Code). In Idaho, it is okay to solicit people by telephone if the solicitor follows certain practices enumerated in the statute. It is always unlawful in Idaho to send unsolicited advertisements to a facsimile machine. There is no leeway or exceptions to the law regarding fax machines. Whoever sends an unsolicited advertisement to a fax machine is in violation of the Idaho Consumer Protection Act. The Idaho Attorney General’s Office enforces the Act, but the Act also provides for private causes of action and remedies.

Specifically, a telephone solicitor may never

  • Intimidate or torment someone during a solicitation.
  • Refuse to hang up after being requested to do so.
  • “Misrepresent the price, quality, or availability of the goods or services being offered to the purchaser” or to fail to disclose material matters relating to the services or goods offered.
  • Falsely advertise or imply that the caller or product has the approval or endorsement of any government or agency.
  • Mislead or block the recipient of your call from knowing the identity of the solicitor or business.
  • Violate any unfair solicitation practice enumerated in Idaho Code § 48-603A.

Idaho Code 48-1007 contains a nonexclusive list of private causes of action and remedies a person may seek against a telephone or fax solicitor. Generally, remedies against telephone solicitors require proof of actual damages. For example, if a person purchases goods or services because of a telephone solicitation or fax advertisement and suffers damages as a result, then the recipient may seek to recover for damages the recipient suffered. Any contract or agreement formed because of an illegal fax or telephone solicitation is voidable. It is against Idaho public policy to contract or agree to waive any purchaser’s rights and any agreement to do will be declared null and void. It is also unlawful to contact any person that has placed themselves on the Idaho “do not call list”. Idaho Code Ann. § 48-1003A (West). The District Court may impose a penalty on those that violate the do not call list provision not to exceed five hundred dollars ($500) for the first violation, two thousand five hundred dollars ($2,500) for the second violation, and five thousand dollars ($5,000) for the third and subsequent violations.

Certain telephone solicitors are exempt from the Idaho Telephone Solicitation Act under Idaho Code § 48-1005 when:

  • The telephone call is an isolated incident and not conducted in a pattern of repeated calls or less than sixty 60(%) percent of the caller’s prior year sales were made as a result of telephone solicitations.
  • The person receiving the phone call has previously purchased goods or services from the solicitor or business entity for which the person is soliciting.
  • The person soliciting does not have the intent to “obtain provisional acceptance of a purchase” during the phone call and only arranges for a major sales presentation to be made at a later face-to-face meeting between the person and the purchaser, and the later face-to-face meeting is not for the purpose of collecting the payment or delivering any item purchased.”
  • The solicitation is from a business licensed by any federal or state agency.
  • The solicitation is for the purposes of selling a newspaper subscription or advertising, or a telephone directory.
  • “A person who has at least one (1) business location in the state under the same name as that used in connection with telephone solicitations and ninety percent (90%) of the person’s business involves the purchaser’s obtaining services and products at the person’s business location.”
  • A person who solicits sales by delivering a catalog of merchandise to purchasers if the catalog contains written or illustrated descriptions of the item for sale, includes the business or home address of the solicitation, has at least twenty-four (24) pages of material and illustrations, has an annual circulation of not less than two hundred and fifty thousand (250,000). 

 








04/26/14

Upcoming Judicial Elections



From the President of the Idaho State Bar Commission, Robert T. Wetherell

In 2003, the membership of the Idaho State Bar passed a resolution allowing Idaho lawyers and state bar members to rate candidates for judicial office. I know for a fact that Idaho is the only western state that allows such attorney input into the judicial selection process. As far as I know, Idaho may be the only state in the Union that provides attorney input to be shared with the public to help inform the public how the practicing lawyers of Idaho rate judicial candidates.

The form you received is straight forward and is tabulated and presented to the public without comment. It is important we only rate those candidates based on our knowledge to ensure the integrity of the process. However, IT IS IMPORTANT THAT WE, AS MEMBERS OF THE BAR, EXERCISE THIS VALUABLE RIGHT!  The fewer lawyers who participate, the less value this information has to the public and the Bar itself. Often we do not know candidates for election here in Idaho. Please send in the form even if you must say you do not know the candidate well enough to provide an evaluation. OUR NUMBERS MATTER. Please complete the survey by April 28 so your Bar leaders may say the lawyers of Idaho care about the judicial system and have taken the time to assist voters in the election process.

Thank you, RTW








04/03/14

Our Third Branch Needs Your Help



One of the functions of a Bar Commissioner is to meet with the Bar Commissioners from other Bar organizations from throughout the United States. In this way, your Bar Commissioners can see how other states handle issues that come before other organizations and can anticipate issues or problems that may arise in Idaho.

The first thing you notice when meeting other state Commissioners is the Idaho State Bar’s great reputation. We can all be proud of the respect the Idaho State Bar has among the various state organizations. Credit for this respect goes largely to our Executive Director and the long time staff that has been assembled to serve the lawyers in the state of Idaho. Credit also goes to the Bar Commissioners elected over the years and their diligence in listening to the Idaho membership and their concerns.

This is perhaps the greatest strength of the Idaho State Bar Association. The Idaho State Bar Association is very transparent and provides the membership with a financial report each year so that every member of the Bar is aware of what money is coming in and where that money is being spent. In addition, and unlike many of the State Bar Associations in the United States, the Idaho State Bar sets its own dues. I was surprised at the number of states that simply allow their Bar Association to announce what Bar dues will be and to direct where that money is spent. Several states have experienced revolts among the lawyers in their states because of this practice. Washington recently severely cut its Bar Association. A lawyer legislator in Colorado recently proposed legislation making Bar membership voluntary because of a perceived lack of accountability.

One of the most important aspects of the Idaho State Bar, is that the lawyers in the state of Idaho control how the Commissioners of the Idaho State Bar conduct the Bar’s business. Each year the Commissioners go on the “Road Show” and meet with District Bar leaders and with the general membership. At these Bar meetings we discuss and vote on various issues that face the Bar. The Bar Commissioners propose resolutions to the membership but it is ultimately the membership that decides how to proceed. I don’t believe I would want to be a member of a Bar that preceded any other way or that did not have a “Road Show” to allow members and their Commissioners to interact, face-to-face.

With that said, two resolutions from the recent Road Show dealt with the Idaho Judiciary; Resolution No. 13-07 and Resolution No. 13-08. The first resolution dealt with judicial compensation and the second with increased funding for technology in our court system. The resolutions were necessary because your Bar Commissioners cannot take any stand before the legislature without a vote of the membership. These two resolutions passed the Bar by a percentage of 84% and 93%, respectively. With the authority of the members of the Idaho State Bar, the Commissioners have been able to approach the legislature, which is in session as I write this article, to let them know how the lawyers in Idaho feel about their judicial system and the respect they have for the Judges who are the backbone of that system. The resolutions read as follows:

13-07: Improve Judicial Recruitment by Addressing Inadequate Judicial
Compensation
NOW THEREFORE, BE IT RESOLVED THAT the members of the Idaho State Bar endorse a Legislative solution to address judicial recruitment by increasing compensation for all members of the Idaho Judiciary and establishing a salary scheme which looks towards parity and equity with the salaries paid to judges, whether national, regional or the average salary of judges of the surrounding western states.

13-08: Support Transition to New Statewide Computerized Case Management
& E-Filing System
NOW THEREFORE, BE IT RESOLVED THAT the members of the Idaho State Bar endorse passage through the 2014 Idaho Legislature of the Idaho Supreme Court’s proposed legislation and budget enhancements necessary to secure the new software, equipment and services required to fulfill the Court’s technology vision.

It is important for the Commissioners and the practicing attorneys in the state of Idaho to remind our legislators and Governor that a well funded and respected judiciary is as important to economic development in this state as building a road, bridge or any other function of government. At any given time, tens of millions of dollars in client funds, not to mention the rights of the citizens of the state of Idaho, are on the line in our court system. It is also important to remember that while the legislature meets for two or three months each year and the executive deals with day-to-day aspects of running the state, the citizens usually have the most contact with our legal system. Whether it is in the area of criminal law or civil disputes, it is the legal community and the legal system that attempts to resolve these issues on a daily basis. Without the stability of the legal system by placing on the bench our most seasoned and qualified candidates, the cost both in economic and personal terms, can be great. The same holds true for the increased productivity that benefits Idaho’s future with the use of technology. The time and cost to clients saved by upgrading technology in our court system cannot be emphasized enough.

The real emphasis of this President’s Message is to urge individual members of the Bar to contact their legislators now, as they are in session, and express to them your personal belief that the resolutions passed by the Bar should be acted upon this year. That is, the legislature must address the compensation package for our judges and increase funding for the court system to implement technology changes to benefit the state’s economic development and reduce the cost of legal services in the state of Idaho. If you will go to the website http://www.legislature.idaho.gov it will give you the name of your representatives and senators so you may send an e-mail or better yet, contact them by phone, to express your support and the support of the Bar for these two resolutions.

Specific legislation will soon be proposed.

On behalf of the Commissioners of the Idaho State Bar, and your fellow lawyers, I thank you in advance for becoming involved.

About the Author

Robert T. Wetherell is a 1982 graduate of the University of Idaho Law School and clerked for the United States District Court for the District of Idaho immediately upon his graduation. Since that time he has been in private practice in the city of Boise and is currently a Principle and Partner at Capitol Law Group, 205 N. 10th St., 4th Floor, P.O. Box 2598, Boise, Idaho 83701-2598. Mr. Wetherell began serving as Bar President in January of 2014. He has been married to his wife, Deborah, for 29 years and they have two adult children; Marie Ellen, a third year law student at the University of Idaho College of Law and R. John, a senior at the University of Idaho. GO VANDALS!








02/23/14

Robert T. Wetherell’s First Message as Bar President to Idaho Lawyers



Recently, Robert T. Wetherell was named President of the Idaho State Bar Board of Commissioners. Robert’s first President’s Message appeared in the February 2014 edition of The Advocate, a magazine for lawyers in Idaho.

If the President’s first message is to be a rambling introduction, this should do. I am one of those individuals who always wanted to be a lawyer. I remember in grade school seeing a program about John Adams and his defense of the British soldiers at the Boston Massacre. In addition, “To Kill a Mockingbird” had been recently released with Gregory Peck standing to defend the rule of law in a small town in the South. The law seemed to attract people of integrity and courage. I was born in Mountain Home in 1958. It was a wonderful community while I was growing up and still is today. With approximately 8,000 people in town and 8,000 people at the air base, it was a much larger community than people realized. In addition, it was by far the most diverse community in the state of Idaho. With retired military in the community, it was not uncommon to hear foreign accents from Germany, France and other European countries. In addition, with the Air Force base kids attending school in Mountain Home, you were able to interact with people from all over the United States and students who had traveled the world. The schools in Mountain Home were first rate.

Because of federal impact funds and money the school district received from Idaho Power for Anderson Ranch Dam, teachers in Mountain Home were paid more than teachers in the rest of the Treasure Valley. We had excellent teachers and leadership, and I never recall a bond election that failed. My father was a state senator in the 1950’s-60’s and my mother was a state senator in the 1980’s-90’s. Law and politics were always a topic of conversation. You never knew who was going to be at the house on a particular occasion. I was able to see a true cross section of life.

One thing that impressed me most about living in Mountain Home in my formative years was the way the lawyers in town were treated. In particular, Frank Hicks, Fred Kennedy and Perce Hall were very well respected. You saw them wear suits every day and it seemed as if the town revolved around their counsel and advice. More than just practicing law, Frank Hicks especially, was everything a small town attorney should be. He didn’t simply practice law and go home. He volunteered his time to various organizations and you would often see him on week nights and weekends working to make the city of Mountain Home better for everyone. He offered me advice as I continued to tell him how I wanted to be a lawyer. Frank Hicks gave me one quote from Abraham Lincoln I will never forget. It’s a partial quote, but it says volumes about what lawyers should be, even in this day and age: “Discourage litigation. Persuade your neighbors to compromise wherever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough. Never stir up litigation. A worse man can scarcely be found than one who does this . . . A moral tone ought to be infused into the profession which should drive such men out of it.”

After I graduated from the University Of Idaho College Of Law in 1982, I was fortunate enough to obtain a clerkship with United States District Judge Taylor and United States District Judge McNichols. I did well enough in law school that I was asked to interview for the position. Interestingly enough, I didn’t get the job but did receive a call stating I had come in second during the interviewing process. As luck would have it, the graduate who was actually offered the job turned it down to be an associate at a bankruptcy firm in Spokane. Apparently it paid more, but I can guarantee with all the money he probably has now, he couldn’t buy the 2½ year experience I had at federal court working for Judge Taylor and Judge McNichols.

I would encourage any new lawyer to clerk for a judge, regardless of pay. In those days, you could only clerk for the United States District Court for two years. The reasoning was that a federal judge is appointed for life and therefore that judge should not turn around and appoint two additional lawyers for life. Those days have changed. My first controversial statement is as follows. I would encourage state and federal judges to rotate their clerkships in order to provide opportunities for new graduates from law school. This would provide a better understanding of the court system by giving young lawyers the experience of seeing how the system operates from the inside. I don’t believe it is a good practice to have longtime law clerks. It only serves to separate the bench from the bar. Change is hard, but change is good. Change gives new energy to you and the people around you. After my clerkship, I entered private practice and have engaged in private practice for approximately 30 years now. It has been very rewarding. Fred Kennedy worked me 50 hours a week my first two years and taught me the importance of preparation in the practice of law. I think the most important experiences have been practicing with and against other lawyers. They have been exceptional professionals and become lifelong friends. I look forward to serving you as President of the Idaho State Bar in 2014. I hope to write articles for The Advocate that will be thought provoking on topics we should be discussing, but at times are reluctant to mention.

About the Authors: Robert T. Wetherell is a 1982 graduate of the University of Idaho Law School and clerked for the United States District Court for the District of Idaho immediately upon his graduation. Since that time he has been in private practice in the city of Boise and is currently a principal and partner at Capitol Law Group. Mr. Wetherell began serving as Bar President in January of 2014. He has been married to his wife, Deborah, for 29 years and they have two adult children; Marie Ellen, a third-year law student at the University of Idaho College of Law and R. John, a senior at the University of Idaho.








01/27/14

Target’s Free Credit Report Email: What to Do Next



By FindLaw Staff

Did you get Target’s email about free credit reports? If so, what should you do next?

In a push to regain the trust of its customers after a massive data breach, Target is offering impacted customers daily credit monitoring, identity theft insurance and access to a Fraud Resolution Agent.

Millions of Americans received Target’s free credit monitoring offer email recently, but considering all the risks associated with scam emails, they may be unsure about how to react, Credit.com reports.

If you received Target’s free credit report email, here are a few steps you may want to consider:

  1. Make sure it’s real. In a tragic twist of irony, email scams of Target’s free credit report offer are making the rounds. Keep an eye out for telltale signs of Target email scams, CNNMoney advises. Watch out for email addresses that don’t match (or addresses that just don’t look quite right) and emails that ask for personal information or money. A red flag should also go up if the email contains spelling errors or stresses a sense of urgency.
  2. Sign up. Out of an abundance of caution, you may not want to click on the links in Target’s email message. Instead, go to the address bar of your browser and manually type CreditMonitoring.Target.com. Fill out your name and email address there. Next, obtain and save the redemption code Target sends you (if you can’t find it, check your spam folder). Manually type ProtectMyID.com/target into your browser’s address bar. That will bring you to Experian’s website for Target victims. Paste the redemption code into the box. Fill out the other identifying information. Keep in mind you’ll have to enter some sensitive financial information and your Social Security number to verify your identity, cautions Credit.com.
  3. Check your report and repeat periodically. Once you make it through the authentication process, carefully review your credit report and check for errors. You should do this once every month, on Target’s dime. Also, don’t forget to set up text alerts — again, on Target’s dime — so you’ll be contacted if someone tries to open credit in your name.

Signing up for Target’s free credit monitoring is an excellent way to help protect yourself from fraud stemming from the hacking incident. Keep in mind that guests have until April 23, 2014, to sign up to receive an activation code. Activation codes must be redeemed by April 30, 2014.

Related Resources:

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