Spam, for those lucky enough to be unfamiliar about it, are those unsolicited commercial emails that often clutter up inboxes with offers of sales and services that range from the reliable to the questionable. Due to the issues presented to consumers, Congress, in its wisdom, enacted a law called the CAN-SPAM Act, and began enforcing it in 2004. First, what is the CAN-SPAM Act and what does it prohibit? Second, as a federal law, does the CAN-SPAM Act override, or preempt those laws a state may already have in place? How can you tell if that may happen?
What is the CAN-SPAM Act?
The CAN-SPAM Act places prohibitions on transmission of any email that contains false or misleading headers or “from” lines. For example, a business that is not Facebook, and has nothing to do with Facebook, would be prohibited from sending an email with the subject “Your Facebook account has been compromised” or send an email from www.facebook.com. In addition, this law places a requirement for three disclosures: (1) clear and conspicuous identification that the message is an advertisement or solicitation; (2) clear and conspicuous notice of the opportunity to decline to receive further commercial email messages from the sender; and (3) a valid physical postal address of the sender. This is done, in part, due to the interest of the legislation in helping consumers under the principle that they should not be misled and should have a right to say no to unsolicited commercial emails.
Can CAN-SPAM preempt state laws?
In general, it preempts state laws that explicitly overlap with its purpose. Specifically, this legislation is concerned with unsolicited commercial emails. However, those laws that prohibit falsity or deception in the electronic mail are supposed to be allowed, as well as, any other laws that may overlap with the CAN-SPAM Act, but are not specific to electronic mail, or those laws that deal with fraud or computer crimes. When put into trial, there were various results in different cases. Notably, in the Ninth Circuit, there was the curious case of Gordon v. Virtumundo, Inc. where Gordon had erected a spam-suing business in an attempt to profit from the violations of the Washington state law. However, there was language, and hinting that if the state law had been better tooled for deception of falsity, it would not have been preempted by the CAN-SPAM Act. Yet this is not the only case. Given the Fifth Circuit’s ruling on the issue in White Buffalo Ventures v. University of Texas at Austin, there are exceptions to the preemption clause in the following language of the statute, referencing the goal of the CAN-SPAM Act to have little to no impact on the actions of Internet Service Providers. In White Buffalo Ventures, the court found that University of Texas was allowed to enforce its own anti-spam policies because, while it was a state agency, at the time, it was also an Internet Service Provider, and eligible for the exception.
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