Evan Schuman's StorefrontBacktalk

Attorney Mark D. Rasch is the former head of the U.S. Justice Department’s computer crime unit and today serves as Director of Cybersecurity and Privacy Consulting at CSC in Virginia.

Best Buy this month was in the news for apparently shipping five iPads to at least two customers, each of whom had only ordered one. The chain decided to get some good press for a change and encouraged the customer to “keep the additional iPads and give them to people in need.”

Some news stories, having picked up on a published U.S. Federal Trade Commission (FTC) Q&A, said that Best Buy wasn’t being generous, that federal law required that the consumer could keep the extra iPads and not pay for them. Like almost all matters legal, the truth is not quite that clean. The laws referenced are intended to punish retailers from shipping items to people who bought nothing and then trying to force them to pay. A shipment in error—especially one to a legitimate customer—was never envisioned, nor was accidentally sending a larger quantity of that which was legitimately being purchased.

Side note: Would homeless people really benefit from an iPad, especially one that has no receipt? Maybe selling them and giving away the cash would be a better idea, but I digress.

The accurate-but-contextless FTC posting in question asked the question “Am I obligated to return or pay for merchandise I never ordered?” and it answered “No. If you receive merchandise that you didn’t order, you have a legal right to keep it as a free gift.”

Indeed, both the FTC and the U.S. Postal Service have laws and regulations that relate to consumers’ obligation to pay for goods that they received without solicitation. The U.S. Postal Service also notes: “A company sends you a gift in the mail: a ball point pen, a key chain, a tie. But you didn’t order it. What do you do? If you are the type of person this company is looking for, you may feel guilty about accepting the item without

paying for it. Don’t feel guilty! It’s yours, and you are under no obligation to pay anything.”

A federal statute (Title 39, United States Code, Section 3009) provides that a consumer need not pay for unsolicited products, and that a company cannot send such unsolicited products unless they are either free samples which are clearly and conspicuously marked as such, or merchandise mailed by a charitable organization that is soliciting contributions.

But here comes the rub: The statute defines unsolicited products as anything you didn’t order. So in the Best Buy case, the four iPads that the customer did not order are “unsolicited” and therefore completely the customer’s to keep. So when Best Buy told its consumers to keep these products, they weren’t doing anything more than what the law required. Right?

Not so fast. This is one of the times that you have to look beyond the literal wording of the statute or regulation, and in particular the wording on a webpage defining or describing that statute and regulation, and look at the purpose behind the regulation.