Intellectual Property Law

The CAN-SPAM Act of 2003: Federal Law vs. State Law

By Martha L. Arias

The CAN-SPAM Act of 2003 (officially titled "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003") was introduced by the U.S. Congress to address the issue of unsolicited commercial electronic mail, including those from dating sites and adult content businesses.  Congress' specific findings and policy concerning the CAN-SPAM Act is found in 15 USCS § 7701. In summary, Congress recognized the threat posed by the rapid growth of unsolicited commercial e-mail (spam); the time and economic resources recipients invest discarding such mail; the risk that wanted e-mails be lost, overlook, or discarded due to spam filters adopted as preventive measure; the fact that some commercial e-mails may include vulgar or adult content; the costs imposed on Internet Service Providers (ISPs), business, and educational institutions; the fact that some of those messages include misleading titles in the subject line; and the trend to omit the "opt-out" option from these e-mails.  For these reasons, Congress determined that there was substantial government interest in regulating unsolicited commercial e-mails at a federal level.  Regulation of spam at a federal level, however, may be controversial; especially in relation to public educational institutions.    

As Congress stated in §7701(11), federal intervention in controlling unsolicited commercial e-mails was required to provide law-abiding businesses certainty about the law they were to follow. Even though many states had enacted statutes regulating unsolicited commercial e-mails, they imposed different standards and requirements, and did not prove sufficient to address the problem; mainly because e-mail addresses do not specify a geographic location.  Thus, businesses were uncertain on what commercial email rules were applicable to them. 

CAN-SPAM Act §7707 specifically addressed the federal v. state merge concerning spam laws. First, §7707(a) clarified that nothing in the CAN-SPAM Act shall be construed to impair the enforcement of some provisions of (1) the Communications Act of 1934, especially those regarding obscenity and children exploitation; (2) any other federal criminal statute; and (3) the Federal Trade Commission (FTC) authority to enforce materially false or deceptive representations or unfair practices in commercial e-mail messages.   Second, regarding federal vs. state spam laws, §7707(b) states that the CAN-SPAM Act "supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto."  Yet, the CAN-SPAM Act does not preempt the applicability of state laws that are not specific to e-mails- but may overlap,- including trespass, contract, or tort law; or any other state law that related to fraud or computer crime. Lastly, within this jurisdiction section, Congress ruled that nothing on the CAN-SPAM should have effect on internet access services policies (§7707(c)).  Concretely, the CAN-SPAM does not regulate the lawfulness or unlawfulness of internet access service policies declining to transmit, route, relay, handle, or store certain types of e-mail messages. This particular part (c) of §7707 is applicable to public educational institutions providing e-mail services for their students and banning certain forms of commercial advertising such as those from dating sites and adult content companies.   

An interesting case addressing the conflict between public educational institutions policies against spam, as  state institutions, versus federal law was White Buffalo Ventures, LLC v. Univ. of Texas, 420 F.3d 366 (5th Cir. 2005).  In this case, plaintiff, Bufallo Ventures, which operates several dating sites, launched an unsolicited commercial e-mail campaign targeting students at the University of Texas (UT).  UT blocked Bufallo Ventures' e-mails pursuant to the school's anti-solicitation policy.  These policies prohibit solicitation at and on the school facilities, including e-mail solicitation. For instance, unsolicited commercial e-mails will be detected, blocked or stopped from being transmitted to students. Thus, Bufallo Ventures sought to enjoin UT from blocking its commercial e-mails.  Buffalo Ventures argued that the CAN-SPAM Act, federal law, preempted UT's anti-spam policy,  and that UT's policy violated the First Amendment to the US Constitution.  

The Fifth Circuit Court of Appeals held that the CAN-SPAM Act does not preempt UT's anti-spam policy because the school fell under 15 U.S.C. §7707(c) , which allowed internet service providers to take appropriate measures against spam.  Indeed, the state university policy against spam is valid under the Supremacy Clause, U.S. Const. art. VI, cl. 2.  Thus, the court held that the spam policy was permissible under the First Amendment commercial speech jurisprudence but reserve to decide whether state university e-mail servers constitute public or private fora.   The US Supreme Court denied certiorari on the First Amendment issue. Currently, only the Ninth Circuit Court of Appeals has confronted the same issue and followed the Buffalo Venture v. UT holding.

Full post as published by IBLS Internet Law Blog on November 17, 2008 (boomark / email).