How many hours of training does it take to determine whether an email belongs in your junk folder? For most people, the answer is probably “zero.” But the California Bureau of Security and Investigative Services says you need 6,000 hours of experience before you can identify spam for a living.
Jay Fink, a Bay Area entrepreneur, runs an innovative business that helps people regain control of their inboxes. In California, where you can challenge companies that send you deceptive junk emails, Fink identifies and indexes his clients’ spam messages to help them prepare for litigation. But regulators in the Golden State have told Fink that his business—reading and cataloguing emails—is illegal. And they’ve ordered him to close his doors unless he endures three years of training in a field completely unrelated to his line of work.
Fink began his crusade against spam in the late-2000s, when he was receiving upward of 500 spam emails per day. After Fink learned about California’s anti-spam law, he sued his spammers—and won. After bringing his own spammers to justice, Jay found a new calling in life: helping other people do the same. Over the past decade, Jay has helped hundreds of Californians fight back against spammers, including high-interest payday loan companies, redundant credit monitoring firms, and seedy supplement suppliers.
But Fink’s livelihood came crashing down earlier this year when he received yet another unwanted email—this time from the California government. According to state regulators, Fink’s business is illegal because the lists he compiles for his clients are potentially related to an eventual lawsuit. To do this work, California claims, Fink needs to be a licensed private investigator.
Fink cannot just go get a license. He would need to spend three years of his life gaining experience in a field like law enforcement, insurance adjustment, or investigative journalism—all to continue running a business he has successfully operated for more than a decade.
Fink neither wants nor needs the skills of a traditional private investigator to read and catalogue his clients’ emails. Forcing him to obtain one is pointless, irrational, and—most troubling of all—unconstitutional. That’s why Fink teamed up with the Institute for Justice, a public interest law firm, to challenge California’s private investigator licensing law.
Applied to Fink, the licensing law raises two constitutional red flags. First, the things Fink does for a living—reading, repackaging, and conveying information—are squarely protected by the First Amendment. The Supreme Court has explained that a person’s “right to speak is implicated when information he or she possesses is subjected to restraints on the way in which the information might be used or disseminated.”
The government cannot restrict anyone’s First Amendment rights without a compelling reason. But California has done just that. It told Fink he cannot share his knowledge about spam because his clients might use that knowledge in a lawsuit, barricading his right to share information behind 6,000 hours of irrelevant training.
What’s more, the Fourteenth Amendment protects everyone’s right to earn an honest living free from arbitrary government interference. But California has regulated Fink the same way it regulates traditional private investigators, who might carry a firearm to a stakeout or hunt down dangerous criminals. Fink’s job bears so little resemblance to private investigation that California’s decision to subject him to the same licensing requirements defies all rational—and constitutional—explanation.
Unfortunately, California is not alone. Occupational licensing requirements have become shockingly widespread—especially for low- and middle-income jobs. But evidence suggests that, in the vast majority of cases, these laws do nothing to increase the quality of services or promote public safety. No one should be forced to jump through irrelevant hoops before they get the government’s permission to braid hair, apply makeup, or identify spam for a living.
Small business is good for people like Fink, and it’s good for the communities they serve. States should not bury entrepreneurial spirit in thousands of hours of senseless red tape.
Dylan Moore is a litigation fellow at the Institute for Justice, which represents Jay Fink.
