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This paper was presented at the Association for Education in Journalism and
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If you have questions about this paper, please contact the author
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Thank you.
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STUDENT SUBMISSION
A Multilevel Approach to Spam Regulation:
Federal Preemption, State Enforcement, and CAN-SPAM
Presented for Consideration for
Presentation in the Law Division
at the
Association for Education in Journalism
And Mass Communication
2005 Convention, August 10-13, 2005
San Antonio, Texas
A Multilevel Approach to Spam Regulation:
Federal Preemption, State Enforcement, and CAN-SPAM
ABSTRACT
Prior to the passage of the CAN-SPAM Act of 2003 thirty-six states
had enacted their own anti-spam statutes. This paper asks how the
preemption and enforcement provisions in the Act limit existing state
legislation, shape emerging state statutes, and define a new role for
the state attorneys general in anti-spam enforcement. An analysis of
the legislative history and language of the CAN-SPAM preemption
provision through three versions of the bill between 2000 and 2003
reveals an intentionally designed, multilevel approach to spam
deterrence that empowers state attorneys general in the fight against spam.
NOTE: An earlier version of this paper was presented at the AEJMC
Southeast Colloquium on March 3-5, 2005, in Athens, Georgia.
STUDENT SUBMISSION
4
Multilevel Spam Regulation
A Multilevel Approach to Spam Regulation:
Federal Preemption, State Enforcement, and CAN-SPAM
By
Martin G. Kuhn, Ph.D. Student
School of Journalism and Mass Communication
University of North Carolina at Chapel Hill
Campus Box #3365
Chapel Hill, NC 27599-3365
Office: (919) 843-5859
Home: (919) 968-2997
[log in to unmask]
Presented for Consideration for
Presentation in the Law Division
at the
Association for Education in Journalism
And Mass Communication
2005 Convention, August 10-13, 2005
San Antonio, Texas
A Multilevel Approach to Spam Regulation:
Federal Preemption, State Enforcement, and CAN-SPAM
ABSTRACT
Prior to the passage of the CAN-SPAM Act of 2003 thirty-six states
had enacted their own anti-spam statutes. This paper asks how the
preemption and enforcement provisions in the Act limit existing state
legislation, shape emerging state statutes, and define a new role for
the state attorneys general in anti-spam enforcement. An analysis of
the legislative history and language of the CAN-SPAM preemption
provision through three versions of the bill between 2000 and 2003
reveals an intentionally designed, multilevel approach to spam
deterrence that empowers state attorneys general in the fight against spam.
NOTE: An earlier version of this paper was presented at the AEJMC
Southeast Colloquium on March 3-5, 2005, in Athens, Georgia
A Multilevel Approach to Spam Regulation:
Federal Preemption, State Enforcement, and CAN-SPAM
The first federal legislation attempting to stem the proliferation
of unsolicited commercial e-mail (spam)[1] was signed into law on
December 16, 2003. It was called the Controlling the Assault of
Non-Solicited Pornography and Marketing Act of 2003 (the CAN-SPAM Act
of 2003)[2] and went into effect January 1, 2004. Since the new law
has been in place, some have criticized it for facilitating spamming
rather than curbing it, and indeed there is evidence that spam
volumes have increased rather than decreased since the law went into
effect.[3] The government asserts that a key reason federal
regulation of spam is necessary is to bolster consumer confidence in
e-mail as a platform for e-commerce; however, a recent survey
revealed that consumer confidence in e-mail has been weakening rather
than getting stronger since January 2004.[4] This criticism leads to
the questions of whether these state mechanisms were, in fact, more
effective deterrents against spammers and what, if any, role
preexisting state laws and state attorneys general will play under the new Act.
When the CAN-SPAM Act went into effect, thirty-six states already
had anti-spam laws on their books.[5] Some of these preexisting
state laws like California's might have offered more stringent
regulations than those offered by the CAN-SPAM Act. California's
tough new anti-spam law[6] was scheduled to take effect the same day
the CAN-SPAM Act did and was completely preempted by the new federal
law. The California legislation would have given citizens the right
to bring private actions against spammers, would have made it illegal
to send spam to or from any computer in the State of California, and
would have been one of the nation's first opt-in laws which means
advertisers and marketers could send spam to potential customers only
if the recipient had requested such correspondence.[7] At the "Spam
and the Law" conference held January 21, 2004, in San Francisco, a
frustrated California Attorney General Bill Lockyer told a group of
attorneys and executives, "Thirty-four million people were
disempowered by the enactment of that Act [CAN-SPAM]."[8] One
legislator, Senator Patrick Leahy (D-Vt.), also felt that stronger
opt-in laws should be encouraged. In regard to the opt-out CAN-SPAM
Act he stated, "My concern is that this approach authorizes spammers
to send at least one piece of spam to each e-mail address in their
database, while placing the burden on e-mail recipients to respond."[9]
Congressman John Dingell (D-Mich.) said that the CAN-SPAM Act of
2003 has "the regrettable practice in it of preempting stronger state
laws, something which I do not favor."[10] An argument might be made
that having the thirty-six different state laws may have been a
better spam-deterrent than a weaker federal Act. Thus, states are
understandably interested in continuing their fight against spam. A
determination of the role for state enforcement in the "national" war
on spam and an evaluation of the remaining viability of specific
state statutes already in existence are necessary. By defining
tangible boundaries for their existing legislation, states will be
able to proactively combat spam using avenues that remain open.
Not every state anti-spam law is preempted in its entirety. The
first two cases to be filed under the CAN-SPAM Act were brought by
internet service providers (ISPs), [11] and ISPs are bringing actions
under both state and federal statutes. [12] The first lawsuit was
initiated on March 4, 2004, by Hypertouch Inc. against online
marketers BVWebties LLC and Bluestream Media.[13] A week later, a
combination of the four largest providers of internet access filed
six CAN-SPAM lawsuits in four states against what their attorneys
called "some of the largest spam operations."[14] The majority of
suits filed against spammers under the pre-existing state laws were
initiated by ISPs because they have the technology to trace large
volumes of spam and to identify some of the senders. The new federal
Act reinforces ISPs' ability to sue spammers,[15] but they are
continuing to bring cases under state laws. Thus for ISPs the
CAN-SPAM Act only reinforces the legal status they held under state
law, an observation succinctly reiterated by Randy Boe, general
consul for America Online, Inc., who said: "State law continues to be
the core of our civil and legal action. The CAN-SPAM Act provides a
parallel complementary tool that strengthens our ability to keep
email useful and get rid of spam."[16]
ISPs may be on the forefront of spam litigation, but other anti-spam
actions are being initiated at the state level. Virginia indicted a
woman on four felony counts of "using fraudulent means to send
illegal unsolicited bulk e-mail."[17] How can one state's anti-spam
law be totally negated (California) while another state can continue
to file criminal charges for spamming (Virginia)? Additionally, how
will the CAN-SPAM Act affect other states interested in drafting new
spam statutes? Maryland, for example, is in the process of drafting
legislation that will allow for the criminal prosecution of senders
of illegal spam.[18] State attorneys general have not lost the
ability to play a vital role in spam deterrence. This paper
demonstrates that there was a conscious attempt by legislators
designing the CAN-SPAM Act to avoid completely preempting state laws
and that the enforcement capabilities of the state attorneys general
were incorporated into a multilevel approach to spam regulation.
Regarding the perceived role of state enforcement under CAN-SPAM,
Senator Ron Wyden (D-Or.), co-sponsor of the Act, stated, "First, the
State laws that address deception in spam would be preserved. Second,
general consumer protection fraud and computer abuse laws would
remain enforceable as well. And third, the bill authorizes states'
attorneys general to use the federal statute to prosecute spammers."[19]
Defining a New Relationship
If a state attorney general's use of a state anti-spam statute
were to be challenged on preemption grounds, the state's defense
would necessarily be based on a thorough understanding of the intent
behind as well as the scope of the express preemption provision in
the new federal law. Preemption is based on the assumption that the
federal law is free from constitutional infirmity.[20] Since the
CAN-SPAM Act has yet to be challenged on constitutional grounds, it
is possible that state statutes will once again be thrust to the
front lines of the spam wars.[21] Also, there is a vital need for
businesses and individuals using e-mail for personal, professional or
commercial purposes to understand how their rights are protected
under the new law and the mechanisms they might use to seek
relief. For example, a business owner in one state might have vastly
more or fewer options for filing a suit against spammers who are
using his or her network to remotely send spam than a business owner
in another state. Both the public and private sectors will benefit
from a clearer understanding of the post CAN-SPAM Act landscape in
terms of anti-spam enforcement.
This paper asks to what extent the preemption and enforcement
provisions in the new Act[22] limit existing state legislation, shape
new state statutes, and define a new role for the states in anti-spam
enforcement. Following a summary of the CAN-SPAM Act, federal
preemption is defined and scholarship regarding the evolution of the
federal preemption doctrine is reviewed in order to illuminate
current trends in preemption jurisprudence. Next, the legislative
intent behind the Act is revealed through an examination of the
printed proceedings of committee hearings, relevant committee
reports, and the evolution of the Act's language regarding federal
preemption and state enforcement. Finally, an evaluation is made
regarding the new state role in the war on spam under the CAN-SPAM Act.
The CAN-SPAM Act of 2003
The purpose of the CAN-SPAM Act is not to eliminate spam. It is
actually to establish a class of legal spam that advertisers and
marketers can use to market goods and services and thereby promote
the development of e-commerce. One of the congressional findings in
the CAN-SPAM Act, referring to the existing state statutes, reads:
"[S]ince an electronic mail address does not specify a geographic
location, it can be extremely difficult for law-abiding businesses to
know with which of these disparate statutes they are required to
comply."[23] Thus, with one set of federal guidelines derived
primarily from the language of preexisting state law, Congress has
defined "legal" spam. Legal spam is unsolicited commercial e-mail
that adheres to the following guidelines:
—There must be no "false or misleading transmission information" in
the header of the message.[24] The originating e-mail address,
domain name, and internet protocol should be accurate.[25] The
"from" line should accurately identify any person who originated the
e-mail message,[26] and the address of the protected computer used to
originate the e-mail message should be included.[27]
—Information provided in the "subject" line of an e-mail message must
not be likely to mislead a recipient, acting reasonably, as to a
material fact regarding the contents of the message.[28] Language
should not be used to trick recipients into opening the message.
—Each unsolicited commercial e-mail message must contain a
functioning return e-mail address and/or a functioning opt-out
mechanism. Recipients who use this opt-out mechanism must have their
requests honored ten days after making the request.[29]
—Certain inclusions must be present in CAN-SPAM compliant
e-mail. The e-mail must clearly identify itself as an advertisement,
provide clear notice of the opt-out mechanism mentioned above, and
contain the valid physical postal address of the sender.[30] If a
spam e-mail message contains sexually oriented material, senders are
required to include a warning label to that effect.[31]
—Aggravated violations of the Act include sending unsolicited
commercial e-mail messages to recipients whose e-mail addresses were
acquired through "harvesting" or through processes using random
electronic generation programs, the automated creation of multiple
e-mail accounts for the purposes of sending spam, and the sending of
spam messages through computers or networks accessed without authorization.[32]
These provisions effectively allow advertisers to design spam e-mail
messages that are legal in all states; however, as noted above, there
may be states that would prefer a higher level of protection for
their citizens and would like to enforce provisions in their own
anti-spam laws, or, as in the case of Maryland, write new
legislation. The powers of the states under the CAN-SPAM Act are
delineated in the enforcement provision[33] and the express
preemption provision.[34] A discussion of the principles behind
federal preemption is presented below.
Federal Preemption
Preemption is the principle that a federal law can supercede or
supplant any inconsistent state law or regulation.[35] It is derived
from the Supremacy Clause of the U.S. Constitution[36] which
establishes that all laws made "in furtherance" of the Constitution
are the "supreme law of the land" and enjoy legal superiority over
any conflicting provision of a state constitution or law.[37] There
are two types of preemption: implied and express. Implied preemption
occurs when a federal statute does not contain specific language
declaring state law preempted. Thus, a court conducting preemption
analysis must rely on the legislative history of the statute and the
conditions under which it was enacted in order to determine the
intent of Congress in enacting the law.[38] Express preemption
occurs when a federal law contains specific language that defines the
intended scope of the preemption. Analysis at this level usually
involves interpreting the provision in relation to the state powers
being preempted.[39]
The CAN-SPAM Act contains an express preemption provision, which reads:
In general, this 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.[40]
Under the Act, states are apparently free to enforce anti-spam
legislation designed to prevent falsity and deception. It is unique
for an express preemption provision to "carve out" a role for state
officers and statutes. To better appreciate the unusualness of this
provision it is helpful to review scholarship that analyses the
evolution of the preemption doctrine in general.
Evolution of the Preemption Doctrine
Scholars have approached the preemption issue from a number of
different perspectives: some historical, some focused on a particular
type of action such as product liability claims, and some trying to
project the future course of judicial preemption analysis by closely
examining the findings of a particular preemption case. This paper
first reviews some of the broader treatments of preemption and
concludes its review with a few studies with narrower focuses.
Mary J. Davis proposes the modern emergence of a "presumption in
favor of preemption" on the part of the U.S. Supreme Court.[41] This
presumption is the reverse of the "presumption against preemption,"
which was seen earlier in the twentieth century. Davis explains the
trends in preemption decisions by "chronicling the shifts in the
Court's preemption doctrine historically."[42] This history
demonstrates an arc, beginning with an assumption of congressional
legislative exclusivity, moving through a period during which
emphasis was placed on defining the legislative intent behind implied
preemption in an effort to avoid needlessly infringing on the states'
historical police powers, and arriving at the Court's recent
decisions, which mark a return to the earlier focus on federal
exclusivity. Davis' article provides a history of preemption cases
during the last century as well as a case study of one statute that
has been the subject of a number of preemption cases in recent
years.[43] Her work provides a lens through which the CAN-SPAM Act's
express provision can be examined. According to Davis, today there
is no meaningful presumption against preemption and express
preemption provisions are being read broadly to preempt state law. [44]
Like Davis, Stacey Allen Carroll assembles an evolutionary history
of preemption analysis.[45] Unlike Davis, she focuses her historical
analysis on cases involving product liability claims. Additionally,
Carroll only recognizes two phases of preemption analysis: the
"presumption against federal preemption" which was prominent from the
inception of the Supremacy Clause until the Cipollone v. Liggett
Group, Inc.[46] decision in 1992 and a period of "schizophrenic
federalism" which has existed since.[47] She does not recognize the
period Davis discusses in which efforts were made to protect
historical state police powers. In her research, Carroll does not go
to the same philosophical depth as Davis. Like Davis, though, she
uses case law involving the Federal Boat Safety Act (FBSA) but
concludes that courts should confine their analysis to the scope of
express preemption provisions while applying a more preferential
(toward state laws) analysis when confronted with product liability
claims facing a federal preemption defense.[48]
Building on Davis' conclusion that current doctrine includes a
presumption for preemption, James B. Staab analyzes the make-up of
the current Supreme Court and notes that a five-justice, conservative
bloc[49] has tilted the scales to favor the federal government in
preemption decisions.[50] He brings this trend to light by looking
at two bodies of case law: decisions of the Rehnquist Court
concerning the issue of federalism under the Tenth and Eleventh
amendments[51] and the Court's preemption decisions.[52]
Surprisingly, Staab concludes that while the Court has defended
states' rights in the Tenth and Eleventh amendment cases as would be
expected, it has also staunchly promoted federal sovereignty in its
preemption decisions.[53] Staab provides more evidence that the
CAN-SPAM Act's preemption provision is likely to limit state
anti-spam legislation.
A number of scholars have narrowed the scope of their inquiries to
certain key preemption cases in recent history. Through their
analyses, not only highlight the importance of the key cases but also
shed light on reasoning used by the Court in situations analogous to
that which the CAN-SPAM provision will likely face should it be
constitutionally challenged on preemption grounds. A recent example
of this body of work comes from Susan Raeker-Jordan who concludes
that the Supreme Court abandoned traditional principles in deciding
Geier v. American Honda Motor Company[54] and in doing so betrayed
its true intent of "tort reform through the vehicle of judicial
preemption."[55] She also posits that the use of "obstacle implied
preemption," which occurs when a state law interferes with the
legislative purpose of a federal regulation,[56] might lead the
courts away from a presumption against preemption. Thus
Raeker-Jordon, through a thorough analysis of Geier, comes to the
same conclusion as Davis and Staab.[57]
Another type of study considers whether there is consistency between
preemption rulings in analogous cases. Donald Garner and Richard
Whitney contrast the preemption analysis in Lorillard Tobacco Co. v.
Reilly[58] with those in two cases involving a Baltimore statute
prohibiting any billboard advertisements for tobacco or alcohol
except when located along industrial thoroughfares or near sports
arenas.[59] They examine how the Lorillard Court reached its
decision that the state statute regulating billboard advertising for
tobacco products fell outside the reach of the Public Health
Cigarette Smoking Act of 1969.[60] They also include a lengthy
discussion of the Cipollone Court's action, especially as expressed
in the opinions of Justices Stevens and Blackmun, on looking at the
preemption provision in the Act in a textual context and applying the
appropriate maxims of construction.[61] The Cipollone Court delved
into the legislative history in order to determine the precise
contours of the preemption provisions. This paper uses a similar
analytical approach. Its conclusion will be drawn from a legislative
history aimed at determining the intent and scope of the CAN-SPAM
Act's express preemption provision.
Richard Scislowski's article[62] examines a case in which a
plaintiff's state statutory tort claim, which was predicated upon an
inadequate warning label on a consumer product regulated under a
federal act, was not preempted by the Federal Hazardous Substances
Act (FHSA).[63] The court decided that since the Ohio statute did
not seek to impose different or additional requirements than those
imposed by the federal statute in question, the tort claim was not
preempted. Scislowski's study of Jenkins v. James B. Day & Co.[64]
encourages consideration of the similarities in language between the
CAN-SPAM Act and many of the state anti-spam statutes.[65] He
projects that ultimately the Supreme Court will have to determine
whether state statutes using the same or similar language as federal
statues will be immune from preemption. This is particularly relevant
to CAN-SPAM since the language in the federal statute was largely
derived from language in the preexisting state statutes.
The last category of preemption studies is composed of those that
focus specifically upon certain industries. For example, Peter Glass
did a study of how the lack of consistent preemption analysis can
impact communications between doctors and medical equipment
manufacturers.[66] He looks at three cases that make up part of the
current "preemption canon"[67] in order to analyze the preemption
provisions of the Food, Drug, and Cosmetic Act (FDCA)[68] and the
1976 Medical Device Amendments (MDA).[69] Another example of this
type of study is that by Laynie Giles [70] which involved the Airline
Deregulation Act (ADA). [71] Similar to the situation in this study,
airlines were forced to comply with various state regulations, so in
order to make it easier for airlines to conduct business; the federal
Act preempted the various state laws.
This inquiry into the impact of the CAN-SPAM Act's express
preemption provision on existing state laws will largely be
predicated on an awareness of the "presumption toward preemption"
demonstrated in the Davis, Staab, and Carroll studies. Moreover, the
relevance of the legislative language when comparing state and
federal laws, as discussed in the Sciskowski study, allows for the
possibility that Davis has erred in assuming that a "presumption
against preemption" cannot reemerge. In fact, this paper argues that
the CAN-SPAM Act's preemption provision was designed specifically to
empower the states. In regard to purpose, this paper has the most in
common with the Glass and Giles studies. The federal legislation
involved here may solidify or dissolve the viability of commercial
e-mail as a platform for direct marketing and advertising and thus
directly affect the evolution of global e-commerce and therefore the
technology sector.
Legislative Intent: Debates and Hearings
The CAN-SPAM Act was introduced before the 106th, 107th, and 108th
Congresses, each time by Senators Ron Wyden (D-Or.) and Conrad Burns
(R-Mont.), co-sponsors of the three bills. A look at legislative
hearings between 2000 and the Act's passage in 2003, most of which
were held before the Senate Commerce, Science, and Transportation
Committee,[72] reveals much about the intent of Congress to involve
the state attorneys general in a multilevel enforcement strategy of
the Act. There was a concern evident throughout the discussions of
the proposed legislation about preempting existing state laws. The
primary justification for nullifying certain provisions of state
anti-spam statutes was to protect the development of interstate
commerce by collapsing the various state spam regulations into one
manageable set of provisions.
A 2003 committee report stated, "[T]he Committee believes that this
bill's creation of one national standard is a proper exercise of the
Congress's power to regulate interstate commerce that is essential to
resolving the significant harms from spam faced by American
consumers, organizations, and businesses throughout the United
States."[73] During a 2003 committee hearing, J. Trevor Hughes,
executive director of the Network Advertising Initiative, stated,
"Unfortunately, the standards and definitions applied by these
statutes (and proposed in pending bills) are not consistent. As a
result, we have a crazy quilt of differing standards that has created
an unnecessarily complex compliance system. We need preemptive
federal legislation to harmonize these standards and provide powerful
tools to enforcement officials."[74] Similar concerns were echoed at
another committee hearing focused on the effects of state spam laws
on small businesses. A witness from the Progressive Policy Center
testified, "Small businesses, therefore, need federal preemption of
state spam laws even more than large businesses, which at least have
legal and IT [information technology] departments capable of
managing the risk of sending spam that violates the law."[75]
Throughout the legislative history of the Act, the concern that
provisions in state laws pertaining directly to the act of
configuring and sending unsolicited commercial e-mail would be
preempted was not the central issue in the debate. Rather, the
debate surrounding federal preemption and state enforcement most
often focused on how to empower state authorities so they might serve
as another tier of enforcement under the new Act. Also, topics such
as whether an opt-out law was preferable to an opt-in law (like the
law in California mentioned above) and whether individual consumers
should be granted a private cause of action were addressed during the
hearings. Ultimately, granting certain enforcement powers to state
attorneys general was praised as an effective deterrent strategy.
Under the Act's state enforcement subsection, state attorneys general
are empowered to bring cases under the CAN-SPAM Act in the federal
district court of the appropriate jurisdiction. [76] As enacted, the
enforcement provision reads as follows:
In any case in which the attorney general of a State, or an official
or agency of a State, has reason to believe that an interest of the
residents of that State has been or is threatened or adversely
affected by any person who violates paragraph (1) or (2) of section
5(a) [15 USCS § 7704(a)], who violates section 5(d) [15 USCS §
7704(d)], or who engages in a pattern or practice that violates
paragraph (3), (4), or (5) of section 5(a) [15 USCS § 7704(a)] of
this Act, the attorney general, official, or agency of the State, as
parens patriae,[77] may bring a civil action on behalf of the
residents of the State in a district court of the United States of
appropriate jurisdiction[78]
Discussion of this arrangement was closely intertwined with that of
the preemption provision throughout the committee hearings.
Emerging from the debates was a multilevel enforcement strategy.
Committee chair Sen. John McCain (R-Ariz.) noted, "This bill provides
for enforcement actions by the FTC, State attorneys general, Internet
service providers, and if Senator Hatch's proposed criminal amendment
is passed which I assume it will be, the Department of
Justice."[79] In the same debate, bill co-sponsor Sen. Wyden
outlined these waves of attack as a multilevel approach, "When the
bill takes effect, for the first time those violators are going to
risk criminal prosecution, Federal Trade Commission enforcement, and
million-dollar lawsuits by the State attorneys general and Internet
service providers."[80] The amenability of ISPs to this approach was
expressed by Randy Boe, general counsel for America Online, Inc.,
during a recent press conference announcing the combined ISP spam
actions mentioned above. In regard to the combination of the state
and federal enforcement roles he stated: "This combination gives us
the tools we need to fight and win the war against spam."[81] In an
earlier hearing regarding the 2001 version of the CAN-SPAM Act,
Eileen Harrington of the FTC's Bureau of Consumer Protection
encouraged those present to support a two-tiered structure, stating
to the Subcommittee on Communications that, "This type of dual
federal-state enforcement scheme has proved extremely successful in
the past, particularly in challenging deceptive and abusive
telemarketing practices, and the Commission would expect it to work
equally well in this context."[82]
Little was said in the hearings regarding the role of the FTC. The
Act is obviously intended to aid the Commission in its enforcement
efforts. Under the CAN-SPAM Act the FTC will now apply its
traditional enforcement powers granted by the Federal Trade
Commission Act of 1934 regarding materially false or deceptive
representations or unfair practices to commercial e-mail
messages.[83] By empowering ISPs and allowing for states to enforce
provisions of their own spam laws, the CAN-SPAM Act should provide
the FTC with some much needed assistance. The FTC is the chief
enforcement body under the Act but has had difficulty tracking,
identifying, and prosecuting spammers.[84]
While the CAN-SPAM Act preemption provision negates the
possibility that individual internet users can bring actions or that
groups of citizens can bring class actions against spammers under
state anti-spam laws, the state attorneys general do have other
remedies to use on their citizens' behalf. Under the Act a state
might bring an action under a provision of its existing anti-spam law
"that prohibits falsity or deception in any portion of a commercial
electronic mail message or information attached thereto."[85] The
Senate Committee on Commerce, Science and Transportation reported:
"Given the inherently interstate nature of e-mail communications,
statutes that prohibit fraud and deception in e-mail target behavior
that a legitimate business trying to comply with relevant laws would
not be engaging in anyway. Section 8(b)(2) of the legislation
clarifies that there would be no preemption of state laws that do not
expressly regulate e-mail, such as State common law, general
anti-fraud law, and computer crime law."[86] State attorneys general
are empowered to enforce anti-spam provisions aimed at preventing
falsity and deception in state courts and to bring actions in federal
court for violations of the CAN-SPAM Act; individuals and groups can
file suits under state law regarding trespass, fraud, and torts.
Throughout hearings on each of the three proposed bills, the general
consensus among industry officials and organizations was that
allowing for state and federal actions under CAN-SPAM was
appropriate. Jerry Cerasale, senior vice president of the Direct
Marketing Association, supported the multilevel approach when he
testified, "This is a borderless communications medium, and we think
that a strong Federal standard is what makes sense, and having the
FTC enforce that is an excellent idea, along with allowing the
states' attorneys general a role to support in either federal or
state court to enforce this bill as well."[87] In May 2003 at a
hearing on the proposed CAN-SPAM Act of 2003, Mark Rotenberg,
executive director of the Electronic Privacy Information Center,
testified, "[T]he reality is that it is the state attorneys general
who have been on the front lines of dealing with the spam problem and
that it has been the state legislatures that have developed many of
the most effective and innovative responses in response to the
growing problem of spam. And I would like to caution you about the
danger of basically telling [them] …that the limited opportunity to
go after spammers, if a federal preemption law is passed, will
essentially be eliminated."[88] At the same hearing, Ted Leonsis,
vice chairman of America Online, Inc., supported the multilevel
enforcement strategy in a response to a question from Sen. Bill
Nelson (D-Fla.) regarding the value of Virginia's spam law. He
stated: "Well, the Virginia law really works in tandem with what
[America Online] can do commercially and where we like the law, it
really does give teeth especially to the attorney general. And I
think in all cases at the state level it's the attorney general who
has to go in and do the biting. It would be much better if we had a
unified view from the top down, but we always need to be able to
empower the AGs to go execute the law state by state.'[89]
Not everyone was happy with the proposed multilevel scheme. While
testifying about the CAN-SPAM Act of 2001 before the Senate Commerce,
Science and Transportation Committee, Jeremiah Buckley, general
consul for the Electronic Financial Services Council, expressed a
concern about dual liability when he said, "State attorneys general
and private parties should not be assigned enforcement
responsibilities in this area as a matter of federal law." [90] His
comment reflects a concern that states would "continue to enact
unfair and deceptive acts and practices (UDAP) statutes so as to
define violations of the proposed Act as unfair and deceptive
practices under state law." [91] States could bring action both under
the CAN-SPAM Act and under their UDAP laws for a single offense. His
concern was that this potential liability would deter not only
spammers but also advertisers and thus the growth of e-commerce in
general. Also, there is room for variance of UDAP provisions from
state to state, so it would again be impossible for advertisers to
comply with all the applicable state laws. Buckley saw this
possibility of the preemption provision leaving room "for the
development of a patchwork of state legislative or judicial
pronouncements using tort or trespass theories to create a compliance
jigsaw puzzle which only the most sophisticated players can
solve."[92] This is the precise scenario that CAN-SPAM was designed to prevent.
Nevertheless, throughout all the testimony, Congress remained
committed to the multilevel enforcement approach, and the primary
goal of the hearings, from the congressional perspective, seemed to
be achieving a strategic balance within the preemption and
enforcement provisions between state and federal
authorities. Senator George Allen (R-Va.) testified that the
CAN-SPAM Act "strikes the right balance as far as enforcement and
preserving certain causes of action like fraud."[93] Throughout the
hearings and debates surrounding both the 2001 and 2003 versions of
the CAN-SPAM bill, the role of the state in fighting spam was
discussed primarily in terms of the enforcement provision of the bill
which empowered the state attorneys general to file against violators
of the new legislation in federal district court. The legislative
intent to maintain a state's ability to enforce its own anti-spam
laws under the new Act becomes apparent when the history of the
language of the preemption provision is considered. A review of the
evolution of this language through three incarnations of the bill is
provided below.
Evolution of Language in the CAN-SPAM Preemption Provision
CAN-SPAM Act of 2000
CAN-SPAM Act of 2001
CAN-SPAM Act of 2003
S. 2542[94]
S. 630[95]
15 U.S.C.S. § 7707 (2004)[96]
In General—No State or political subdivision of a State may impose
civil liability for any commercial activity or other act in
interstate or foreign commerce in violation of sec. 4 [Prohibited
Acts] that is inconsistent with the treatment of that activity or act
under this Act.[97]
In General-No State or local government may impose any civil
liability for commercial activities or actions in interstate or
foreign commerce in connection with an activity or action described
in section 5 [Other Protections Against Unsolicited Commercial
Electronic Mail] of this Act that is inconsistent with or more
restrictive than the treatment of such activities or actions under
this Act, except that this Act shall not preempt any civil action under—[98]
In General—This Act supercedes 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.[99]
Exceptions
Exceptions
Exceptions
…any civil remedy available under State or local trespass law; or[100]
State trespass, contract, or tort law; or[101]
State laws that are not specific to electronic mail, including State
trespass, contract, or tort law; or[102]
…any Federal, State, or Local criminal law, or any civil remedy
available under such law, relating to acts of computer fraud or abuse
arising from the unauthorized transmission of unsolicited commercial
e-mail messages.[103]
…any provision or Federal, State, or local criminal law or any remedy
available under such law that relates to acts of computer fraud
perpetrated by means of the unauthorized transmission of unsolicited
commercial electronic mail messages, provided that the mere sending
of unsolicited commercial electronic mail in a manner that complies
with this Act shall not constitute an act of computer fraud for
purposes of this subparagraph.[104]
. . . Other State laws to the extent that those laws relate to acts
of Fraud or computer crime.[105]
(table. 1)
The CAN-SPAM Act of 2000[106] was introduced before the 106th
Congress on May 11, 2000, and was immediately referred to the Senate
Committee on Commerce, Science, and Transportation. Its preemption
provision, on its face, seems very vague. Depending on the judicial
interpretation of the word "inconsistent," this provision might have
preempted any state laws that deviated in any context or term from
the provisions in the CAN-SPAM bill. The word "inconsistent," which
is not defined in the definitions section of the bill,[107] might
have been interpreted in terms of the goal of the legislation. In
such a case, two provisions designed to achieve the same goal would
be "consistent," an interpretation which might have allowed states a
fair amount of room to litigate. Interestingly, it might have allowed
states with criminal spam statutes to proceed unhindered. The two
subsections would have allowed for enforcement of state "trespass"
and "computer fraud" statutes. Consideration of the language in this
early version of the Act provides a starting point for defining the
role legislators intended to carve out for state attorneys general.
The CAN-SPAM Act of 2001[108] was introduced on March 27, 2001
before the 107th Congress, and its revised language seems to have
tightened the parameters of the preemption prevision (see table
1). By adding "or more restrictive" in 7(b), legislators might have
prevented a potential state argument that state laws containing the
same provisions as the CAN-SPAM Act plus additional (stricter)
regulations would not have been preempted. Under the original
wording, such a statute might be considered consistent with the goals
of CAN-SPAM in that a commonality of purpose existed. This new
phrase, however, placed a ceiling on state regulations without which
states might enforce additional regulations beyond the parameters of
the federal law. Since states would naturally develop unique
provisions, the federal goal of a uniform set of standards for
"legal" spam would be thwarted. Still the term "inconsistent" would
have left room for a bias against preemption, but the revised version
definitely eliminated an entire category of possible restrictions by
incorporating the "stricter regulations" language.
Another notable change is the inclusion under 7(b)(1) of the
categories of "contract" and "tort" law whereas only "trespass" law
was listed in the 2000 version. These two new categories may have
been added both to empower and assuage state attorneys general by
giving residents of their states avenues through which to recover
damages from spammers and to give ISPs multiple options for seeking
damages from advertisers and marketers who send unauthorized or
illegal commercial bulk e-mail through their servers.
Additionally, 7(b)(2) in the 2001 version represented a significant
change from 11(b)(2)(B) in the 2000 version. The original "computer
fraud or abuse" exemption may have been too broadly worded and may
have allowed states in their effort to protect their citizens from
spam to define ways in which spam, otherwise in compliance with the
CAN-SPAM Act, might be deemed fraudulent. Such an interpretation at
the state level could recreate the scenario in which advertisers and
marketers would need to comply with many different sets of
regulations and possibly nullify the federal government's efforts to
ease that burden for e-marketers by establishing a single set of
guidelines for the entire nation.
The revised wording in 7(b)(2) might have firmly established that
spam sent in compliance with CAN-SPAM was not fraudulent per
se. There would need to be an extenuating circumstance such as
obscene content, an illegal product or service, the unauthorized use
of a computer to send spam, or if the e-mail itself was part of a
larger scheme to defraud. The language in the 2001 version seemed to
pull the provision in two opposite directions. By adding contract
and tort law to the exemption list, the provision seemed to grant
more regulating power to the states; however, by narrowing the state
options by preempting both consistent or more restrictive state
regulations in 7(b) and by labeling CAN-SPAM-compliant spam as
non-fraudulent per se, the 2001 version of CAN-SPAM had a
significantly stronger preemption provision than did the 2000 version.
The third version of the bill was introduced before the 108th
Congress on January 7, 2003,[109] and is the version that was
ultimately passed, signed into law, and put into effect on January 1,
2004. The third revision of the preemption language is the most
drastic change, and it most clearly reveals a congressional effort to
balance state and federal interests. The final version of the Act's
preemption provision allows for states to file actions under some
provision of their own anti-spam statutes. Gone is the language
regarding "inconsistent" and "more restrictive" regulations and in
its place is an exemption to federal preemption to the extent a state
law prohibits falsity or deception in any portion of a commercial
e-mail message. Thus any state regulations regarding compelled
labeling provisions or compelled inclusions of an opt-out address may
be preempted; however, state provisions regarding the "truthfulness"
of routing information, "from" and "subject" lines, and whether the
opt-out provision works may not be preempted. Ultimately this will
be a judicial decision, but the language creates the possibility of
dual liability that Buckley was concerned about during the 2001 hearings.
Allowing states more leeway provides balance between federal and
state interests. For instance, when an advertiser puts together a
piece of CAN-SPAM-compliant e-mail, he or she need only be concerned
with the compelled inclusions as listed in the CAN-SPAM Act of 2003.
Thus the federal interest in constructing a mechanism to foster
e-commerce is theoretically advanced as is the interest in empowering
consumers by creating for them an option to opt-out. States are
still empowered to file suits against spammers who mislead or defraud
their citizens. They are also still able to pass legislation
designed to punish such activity. States are preempted from banning
spam outright, establishing an opt-in provision, or determining a
preferred labeling system, but states have not been prohibited from
legislating against spam that is deceptive and state attorneys
general are empowered by the enforcement provision to bring actions
under the federal Act. States thus provide an additional tier of enforcement.
The Act's subsection related to trespass, contract, and tort law
remains the same as it was in the 2001 version, but the "sending of
[spam] in a manner that complies with this Act shall not constitute
an act of computer fraud" clause has been removed, most likely
because it was made redundant by the revised statement regarding the
exemption for regulations aimed at preventing "falsity and deception"
in section 8(b)(1). This is also the first version of the Act to
expressly state in a subsection about federal preemption that the
CAN-SPAM Act of 2003 will not prohibit ISPs from legally enforcing
their usage policies and contracts against senders of illegal
spam. The relevant language reads:
Nothing in this Act shall be construed to have any effect on the
lawfulness or unlawfulness, under any other provision of law, of the
adoption, implementation, or enforcement by a provider of internet
service of a policy of declining to transmit, route, relay, handle,
or store certain types of electronic mail messages.[110]
All three versions of the CAN-SPAM Act explicitly state in
subsections detailing enforcement provisions what types of damages
ISPs may pursue. Tracing the evolution of the ISP provision is a
topic for another paper.[111] Aside from the Act's encouraging
action by ISPs, it is significant to note that legislators used the
language in the preemption provision to establish a role for state
attorneys general by stating that provisions in their spam laws aimed
at preventing falsity and deception are enforceable as are all
applicable UDAP statutes. As discussed earlier, state attorneys
general are also allowed to bring CAN-SPAM cases in federal district
courts. A discussion of this provision follows.
The Multilevel Approach to Preemption and Enforcement
As noted above, Senator Ron Wyden intended that state laws
addressing deception in spam would be preserved, that consumer
protection fraud and computer abuse laws would remain enforceable,
and CAN-SPAM would authorizes states' attorneys general to use the
new Act to prosecute spammers.[112] Sen. Wyden's first assertion
about "state laws that address deception" indicates that there are
provisions of existing state laws that have not been preempted by the
CAN-SPAM Act. Based upon the above analysis of the legislative
history of the Act, provisions likely to be preempted by the CAN-SPAM
Act can be identified relative to those that are still viable.[113]
Provisions generally designed to regulate the sending of e-mail, and
thus those that are likely included under the expressly preempted
category include but are not limited to the following examples:
provisions requiring certain inclusions in the actual e-mail like
ADV: or ADULT: in the subject line to warn recipients that the
message is an advertisement or an advertisement that contains adult
content; those requiring the inclusion of a functioning e-mail or
physical return address, an opt-out device, or a phone number;
provisions requiring the removal of a recipient's e-mail address from
the e-mailing list after the recipient has made an opt-out request;
and any provision that has an outright ban on sending e-mail to or
from recipients in the state. The second group of provisions are
those not aimed at the specific act of sending commercial e-mail, but
rather at preventing falsity and deception. These might not be
preempted depending upon the circumstances of the case and the
judicial interpretation. It could be argued that the following
provisions would fall under this second category: those aimed at
spammers attempting to conceal their location and identity and those
prohibiting illegal means of gathering e-mail addresses. The
provisions regulating the use of unauthorized computers, false domain
names, and fictitious e-mail accounts in order to hide the
transmission paths of their e-mail would likely belong to this group.
Also, provisions prohibiting the use of false information in the
"from" or "subject" lines for the purpose of enticing or tricking
recipients into opening an e-mail message would be included in this
category. Of course, none of these provisions has been challenged in
court and thus these categories are purely speculative at this point;
however, it is important to note that some provisions of existing
state law will likely not be preempted by the CAN-SPAM Act of 2003.
In order to determine the strength of a particular state law under
the CAN-SPAM Act, an analysis must classify each provision of the
statute as belonging either to the preempted grouping or the
non-preempted grouping. A law like California's opt-in law was
assumed to be totally preempted because none of its provisions were
aimed at preventing falsity or deception. Instead every provision in
that statute was a rule or condition regarding the sending of
spam. By contrast, the woman arrested in Virginia, mentioned
earlier, was "using fraudulent means to send illegal unsolicited bulk
e-mail."[114] Obviously she was arrested under provisions of
Virginia's law aimed at preventing deception, provisions that would
not be preempted under the CAN-SPAM Act.
Conclusion
In a 2003 statement to Congress Sen. Wyden said, "The bottom line
is, our States, which have done so much important and innovative work
in the area of consumer protection, are going to remain active and
important partners in the battle against spam."[115] The preemption
provision in the CAN-SPAM Act of 2003, while establishing a set of
federal regulations, also carves out a space for states to legislate
against deceptive practices involving spam, allows for state citizens
to take action against spammers using existing state common law such
as trespass and tort law, and empowers ISPs to enforce their policies
and contracts. This intentional multilevel approach bucks the trend
of judicial presumption for preemption, as recognized by Davis, Staab
and others, and encourages states to partner with the federal
government in the war on spam.
The enforcement provision of the CAN-SPAM Act empowers the state
attorneys general to bring suits under the Act in federal district
courts. Taken together, the purpose of the preemption and
enforcement provisions in the CAN-SPAM Act is to empower consumers by
structuring a multilevel system of enforcement and to strike a
balance between state and federal interests. While facilitating the
creation and implementation of a single set of federal guidelines for
companies wishing to market via unsolicited commercial e-mail, the
preemption and enforcement provisions in the CAN-SPAM Act provide a
blueprint for a complex enforcement system made up of the FTC, ISPs,
U.S. Department of Justice, and state attorneys general.
As Senator Burns, co-sponsor of the CAN-SPAM Act of 2003, stated,
"The CAN-SPAM bill allows state attorneys general to take action if
they see fit."[116] There is nothing apparent in the legislative
history of this provision that indicates the federal government's
desire to prevent state attorneys general from acting against
spammers. On the contrary, it appears that the success of the Act
depends partly on successful state enforcement of the federal law as
well as those provisions of their own state laws aimed at preventing
falsity and deception in spam.
[1] CompuServe Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015,
1018, n1 (S.D. Ohio 1997). The district court's note cites the origin
of the term "spam" as a skit on the British television show "Monty
Python's Flying Circus," in which the word spam is repeated "to the
point of absurdity" in a restaurant menu.
[2] Controlling the Assault of Non-Solicited Pornography and
Marketing Act of 2003 (CAN-SPAM Act of 2003), 15 U.S.C. §§ 7701-7713 (2004).
[3] Brightmail Logistics and Operations Center (BLOC) indicated that
the percentages of total e-mail identified as spam increased from 58%
in December 2003 to 62% in February 2004, available
at http://brightmail.com/spamstats.html (last visited Mar. 20,
2004). In February 2005, ClickZ reported that this percentage
increased so that 70% to 80% of all e-mail sent since April 2004 were
spam, available at
http://www.clickz.com/stats/sectors/email/article.php/3483541#table1
(last visited Mar. 26, 2005).
[4] Pew Internet & American Life Project, Press Release, Pew
Internet Project Data Memo (March 17, 2004) available
at http://www.pewinternet.org/reports/toc.asp?Report=116. This
survey was a follow-up to a Pew report released in October 2003
called "Spam: How it is hurting e-mail and degrading life on the
internet." The current survey covers the period between February 3,
2004, and March 1, 2004, and reveals that 86% of users reported some
level of distress with spam, 77% of users with personal e-mail
accounts report no change or an increase in the amount of spam they
have been receiving since CAN-SPAM was enacted, and 29% report they
have reduced their use of e-mail because of spam, which is an
increase from 25% reported in June 2003. see also Trans-Atlantic
Consumer Dialogue, survey summary, (February 2, 2004) available
at http://www.tacd.org/docs/?id=225. Survey results indicated 52%
of respondents said they shop online less or not at all because they
are worried about spam.
[5] David E. Sorkin, Spam Laws, at http://www.spamlaws.com/ (last
visited April 3, 2004) (great resource for federal, state, and
European anti-spam statutes including bills from the 106th, 107th,
and 108th Congresses and links to significant case law). States with
anti-spam laws are Alaska, Arizona, Arkansas, California, Colorado,
Connecticut, Delaware, Idaho, Illinois, Indiana, Iowa, Kansas,
Louisiana, Maine, Maryland, Michigan, Minnesota, Missouri, Nevada,
New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon,
Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah,
Virginia, Washington, West Virginia, Wisconsin, and Wyoming.
[6] Restrictions on Unsolicited Commercial E-mail Advertisers, Cal.
Bus. & Prof. Code §17529.
[7] Some versions of this type of law permit advertisers to send
spam to potential customers without their having to ask to be on the
list as long as a preexisting business relationship can be
demonstrated. An "opt-out" law allows senders to transmit spam to
anyone they please, but they must remove a recipient's e-mail address
from their address list upon the recipient's request.
[8] Stefanie Olsen, CNET News.com, at
http://news.com.com/2100-1028-5145849.html (last visited January 23, 2004).
[9] 149 Cong. Rec. S159838, 15947 (2003).
[10] 149 Cong. Rec. H.12186, 12194 (2003)(statement of Sen. John Dingell).
[11] 15 U.S.C.S. §7707(c) (2004) (preserves the right of an ISP to
enforce its own policies and contracts without interference from the
CAN-SPAM Act).
[12] America Online, Earthlink, Microsoft, and Yahoo! Joint Press
Conference (March 10, 2004). In his comments Les Seagraves, chief
privacy officer and assistant general counsel for Earthlink, stated,
"We have filed lawsuits that go after some of the worst violators of
this law [CAN-SPAM Act] and we have used the potent combination of
federal statutes, including the CAN-SPAM Act, state statutes, and
state common law."
[13] Associated Press, ISP Sues Marketer of Bob Vila Website (Mar.
4, 2004), available at
http://www.washingtonpost.com/wp-dyn/articles/A31843-2004Mar4.html.
Hypertouch alleges that Bluestream and BVWebties sent e-mail ads for
the "Bob Vila's Home Again Newsletter" to recipients who requested to
be removed from that e-mail list. The e-mail also allegedly
contained inaccurate address information. If the allegations are
true, the marketers would be in violation of the CAN-SPAM Act.
[14] Jonathan Krim, E-mail Giants Join in Court to Fight Spammers,
Washington Post, Mar. 11, 2004, at E01, available at
http://www.washingtonpost.com/ac2/wp-dyn/A48041-2004Mar10?language=printer,
See also Scott Shane, Internet Giants Sue over Spam, Baltimore Sun,
Mar. 11, 2004, available at
http://www.baltimoresun.com/news/nationworld/bal-te.spam11mar11,0,4001341.story?coll=bal-nationworld-headlines.
Microsoft, America Online, Yahoo!, and EarthLink are targeting the
largest spammers based on volume. As they have not yet identified
all the spammers, some defendants are listed as "John Doe." One set
of defendants is the Canada-based Head Operations Group.
[15] 15 U.S.C.S. § 7706(g)(1)
[16] Joint press conference, supra note 12 (remarks of Randy Boe,
general counsel for America Online, Inc.).
[17] Lorraine M. Blackwell, Woman Indicted in Loudoun County
Internet Case, Daily Press, April 7, 2004, available at
http://www.dailyopress.com/news/local/virginia/dp-va--spamarrest0407apr07,1,3342570.story.
[18] The proposed legislation would make it a misdemeanor to: use
false information for establishing multiple e-mail accounts through
which to send illegal spam, use false information in the header
information in multiple e-mail messages, and create deceptive routing
information by sending spam through protected computers without
authorization. Jim Halpert, Internet Commerce Coalition general
counsel, asserts that there will be no First Amendment concerns with
Maryland's new law because it deals with trespass and misleading
commercial speech which is not protected. If the law is passed,
Maryland would join Virginia, Arkansas, and Connecticut as states
with criminal spam statutes. New Jersey, Ohio, and Minnesota are
investigating the possibility of drafting similar statutes.
[19] 149 Cong. Rec. S.13012, 13024 (2003) (statement of Sen. Ron
Wyden, co-sponsor of the CAN-SPAM Act of 2003).
[20] 81A C.J.S. States § 22, 311-316 (1977).
[21] As a regulation of commercial speech, the CAN-SPAM Act could be
held to the standard of intermediate scrutiny established in Central
Hudson Gas & Electric Corp. v. Public Service Commission of New York,
447 U.S. 557 (1980) called the Central Hudson Test. Under this
test, a regulation of non-misleading advertising for a lawful product
or service must meet the following three criteria: [1] it must be
determined that the government has a substantial interest in
regulating the speech, [2] the restriction must be shown to directly
advance the government's asserted interest, and [3] the restriction
may not be more extensive than necessary to serve that
interest. Considering the apparent increase in spam volume since
CAN-SPAM was enacted, the emergence of more efficient spam filtering
technologies, and heightened consumer awareness about computing
practices that will lessen spam, an argument might be made that the
CAN-SPAM Act is unconstitutional under the second and third prongs of
the Central Hudson test.
[22] 15 U.S.C.S. §§ 7706-7707 (2004).
[23] 15 U.S.C.S. § 7701(11) (2004).
[24] See id. § 7704(a)(1) (2004).
[25] See id. § 7704(a)(1)(A) (2004).
[26] See id. § 7704(a)(1)(B) (2004).
[27] See id. § 7704(a)(1)(C) (2004).
[28] 15 U.S.C.S. § 7704(a)(2) (2004). This is consistent with the
criteria used in enforcing § 5 of the Federal Trade Commission Act 15
U.S.S. 45.
[29] See id. § 7704(a)(3) and (4) (2004).
[30] See id. § 7704(a)(5)(A) (2004).
[31] See id. § 7704(d) (2004).
[32] See id. § 7704(b)(1)(2) and (3) (2004).
[33] 15 U.S.C.S. § 7706 (2004).
[34] See id. § 7707 (2004).
[35] Black's Law Dictionary, 1197 (7th 1999).
[36] U.S. Const. art. VI, § 1, cl. 2.
[37] Black's, supra note 35, at 1454.
[38] Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
[39] Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977).
[40] 15 U.S.C.S. §7707(b)(1) (2004).
[41] Mary J. Davis, Unmasking the Presumption in Favor of
Preemption, 53 S.C. L. Rev. 967 (2002).
[42] Id. at 970.
[43] Federal Boat Safety Act [FBSA], 46 U.S.C. §§ 4302-4311 (1994 &
Supp. V. 1999).
[44] Davis, supra note 41, at 1013.
[45] Stacey Allen Carroll, Federal Preemption of State Products
Liability Claims: Adding Clarity and Respect for State Sovereignty to
the Analysis of Federal Preemption Defenses, 36 Ga. L. Rev. 797 (2002).
[46] 505 U.S. 504 (1992).
[47] Carroll, supra note 45, at 818.
[48] Id. at 833.
[49] The five were: Chief Justice William H. Rehnquist and Associate
Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and
Clarence Thomas.
[50] James B. Staab, Conservative Activism on the Rehnquist Court:
Federal Preemption is no Longer a Liberal Issue, 9 Roger Williams U.
L. Rev. 129 (2003).
[51] See e.g., Printz v. United States 521 U.S. 898 (1997); Gregory
v. Ashcroft 501 U.S. 452 (1991); Garcia v. San Antonio Metropolitan
Transit Authority 469 U.S. 528 (1985).
[52] See e.g., Seminole Tribe v. Florida 517 U.S. 44 (1996); Idaho
v. Coeur d'Alene Tribe, 521 U.S. 261 (1997); and Alden v. Maine, 527
U.S. 706 (1999).
[53] Staab, supra note 50, at 182.
[54] Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000). In this
case a five-justice majority used "obstacle implied preemption"
(defined below) to rule in favor of federal preemption despite an
ambiguous preemption provision that leaves Congress' desire to
preempt state law in doubt and went in the face of a
prevailing "presumption against preemption" that had been the norm
in preemption jurisprudence.
[55] Susan Raeker-Jordan, A Study in Judicial Sleight of Hand: Did
Geier v. American Honda Co. Eradicate the Presumption against
Preemption? 17 BYU J. Pub. L. 1, 43 (2002).
[56] See English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990). Obstacle
implied preemption (or conflict preemption) refers to an implied
preemption that occurs when a state law conflicts with the federal
law by frustrating the federal purposes behind the law. The CAN-SPAM
Act has an express preemption provision, so this type of analysis
will not directly apply. Its merit for this study is that it is
recognized by some scholars like Raeker-Jordan as a tool used by the
Court to foster preemption.
[57] Raeker-Jordan, supra note 55, at 44.
[58] 533 U.S. 525 (2001).
[59] Donald W. Garner & Richard J. Whitney, Protecting Children from
Joe Camel and His Friends: A New First Amendment and Federal
Preemption Analysis of Tobacco Billboard Regulation, 46 Emory L.J.
479 (1997). The four cases are Anheuser-Busch, Inc. v. Mayor of
Baltimore, 855 F. Supp. 811 (D. Md. 1994) (Anheuser-Busch I), aff'd
sub nom.; Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305 (4th Cir.
1995), vacated and remanded, 517 U.S. 1206 (1996), modified, 101 F.
3d 325 (4th Cir. 1996) (Anheuser-Busch II), cert. denied, 520 U.S.
1204 (1997); Penn Adver. Of Baltimore, Inc. v. Mayor of Baltimore,
862 F. Supp. 1402 (D. Md. 1994) (Penn Advertising I), aff'd, 63 F. 3d
1318 (4th Cir. 1995), vacated and remanded, 518 U.S. 1030 (1996),
modified, 101 F. 3d 332 (4th Cir. 1996) (Penn Advertising II), cert.
denied, 520 U.S. 1204 (1997). The preemption analysis is actually the
third part of this paper. Garner and Whitney also apply the
four-part Central Hudson test to the Baltimore statutes (Central
Hudson Gas and Electric Corp. v. Public Service Comm'n, 447 U.S. 557 (1980)).
[60] 15 U.S.C.S §§ 1331-1341 (2004).
[61] Garner & Whitney, supra note 59, at 564-67 ("maxims of
construction" can be read "rules" of legislative construction).
[62] Richard J. Scislowski, Jenkins v. James B. Day & Co.: A New
Defense of State Tort Law Against Federal Preemption – Is It
Legitimate? 28 Akron L. Rev. 373 (1995).
[63] 15 U.S.C.S. §§ 1261-1277 (2004).
[64] Jenkins v. James B. Day & Co., 634 N.E.2d 998 (Ohio 1994).
[65] The CAN-SPAM Act contains many of the same provisions as those
contained in existing state legislation, such as compelled labeling
of advertisements and adult material, inclusion of an operating
opt-out mechanism and prohibition of falsified information in the
header, and the use of deceptive information in the "from" and "subject" lines.
[66] Peter Glass, The Off-Label Divide: Two Conflicting Legal
Theories Compete for Supremacy, 3 Pharm. & Med. Device L.B. 1 (2003).
[67] See Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992);
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996); and Buckman Co. v.
Plaintiff's Legal Comm., 531 U.S. 341 (2001).
[68] 105 P.L. 102 (1997).
[69] 21 U.S.C.S. § 352[f] (2004) and 15 U.S.C.S. § 360C (2004).
[70] Laynie Giles, Interpreting the Airline Deregulation Act of
1978: Federal Preemption Over State Deceptive Advertising Laws, 22
Transp. L.J. 87 (1994).
[71] 49 U.S.C.S. § 41713 (2004).
[72] Senator John McCain chaired the Senate Commerce, Science, and
Transportation Committee. The most significant hearing regarding the
CAN-SPAM Act was held on May 21, 2003. Witnesses included Orson
Swindel and Mozelle Thompson, both commissioners on the Federal Trade
Commission; Ted Leonsis, vice chairman of America OnLine, Inc.;
Enrique Salem, president and CEO of Brightmail, Inc.; J. Trevor
Hughes, executive director of the Network Advertising Initiative;
Mark Rotenberg, executive director of the Electronic Privacy
Information Center; and Ronald Scelson, Scelson Online Marketing.
[73] S. Rep. No. 108-102 (July 16, 2003) (report submitted by the
Committee on Commerce, Science, and Transportation).
[74] Hearing on Spam (Unsolicited Commercial E-mail), Hearing of the
Senate Commerce, Science and Transportation Committee, 108th Cong.
(May 21, 2003) (statement of J. Trevor Hughes, executive director of
the Network Advertising Initiative).
[75] Spam and its effects on small business, Hearing before the
House Small Business Committee, 108th Cong. (October 30, 2003)
(Statement of Shane Ham, senior policy analyst for the Technology and
New Economy Project of the Progressive Policy Institute).
[76] 15 U.S.C.S. § 7706(f)(1) (2004). (stating that the attorney
general, an official, or agency of a state, as parens patriea, may
bring a civil action of behalf of the residents of the state in a
U.S. district court of appropriate jurisdiction.)
[77] Black's, supra note 35, at 1137. In the doctrine of parens
patriae the State is regarded as sovereign. The term refers to the
State in its capacity as provider of protection to those unable to
care for themselves. Also, the term is used in regard to the
CAN-SPAM Act as a doctrine by which the government has standing to
prosecute a lawsuit on behalf of a citizen, especially someone who is
under a legal disability to prosecute the suit.
[78] 15 U.S.C.S. § 7706(f)(1) (2004). The sections and subsections
cited in the provision refer to the CAN-SPAM guidelines presented
earlier in the paper. This is the paragraph that literally makes a
state attorney general a potential agent of the federal government.
[79] 149 Cong. Rec. S.13012, 13019-13020 (2003) (statement of Sen.
John McCain).
[80] 149 Cong. Rec. S.13012, 13023 (2003).
[81] America Online, Earthlink, Microsoft, and Yahoo! Joint Press
Conference (March 10, 2004) (Remarks of Randy Boe, general consul for
America Online, Inc.).
[82] Prepared Statement of the Federal Trade Commission on
"Unsolicited Commercial E-mail" Before the Subcommittee on
Communications of the Committee on Commerce, Science and
Transportation, 107th Cong. (April 26, 2001) (Statement of Eileen
Harrington of the FTC's Bureau of Consumer Protection).
[83] 15 U.S.C.S. § 7706(d) (2004).
[84] This is not to say that the FTC has been incapable of effective
action in the war on spam. The Commission has created an educational
web site for consumers and businesses. The site provides consumers
with helpful information on how spam works, why they get spam, and
how to decrease the amount of spam they receive. The FTC has also
conducted several studies to test whether "unsubscribe" or "remove
me" requests were being honored and reported that the majority of
consumer requests were not getting through. The Commission sent
warning letters to spammers who were not honoring said requests. The
FTC has taken legal action against several spammers who allegedly
sent out deceptive, unsolicited commercial emails, including a 2002
case in which the FTC joined several state law enforcement officials
in the United States as well as four Canadian law enforcement
agencies in bringing 63 different actions against various Web schemes
and scams that targeted victims through spam.
[85] 15 U.S.C. §7707(b)(1) (2004).
[86] S. Rep. No. 108-102 (2003).
[87] Spam: Hearing of the Senate Commerce, Science and
Transportation Committee, 107th Cong. (April 26, 2001) (Statement of
Jerry Cerasale, senior vice president of government affairs for the
Direct Marketing Association (DMA)).
[88] Hearing on Spam (Unsolicited Commercial E-mail), Hearing of the
Senate Commerce, Science and Transportation Committee, 108th Cong.
(May 21, 2003) (statement of Mark Rotenberg, executive director of
the Electronic Privacy Information Center). The strange sentence
structure in this quote is not an error. It appears in the printed
transcript of the hearing.
[89] Id., (Statement of Ted Leonsis, vice chairman of America Online, Inc.).
[90] Spam: Hearing of the Senate Commerce, Science and
Transportation Committee, 107th Cong. (April 26, 2001) (statement of
Jeremiah S. Buckley, general counsel for the Electronic Financial
Services Council). Mr. Buckley, whose client's mission is to promote
legislation and regulation designed to ensure that electronic
commerce continues to revolutionize the availability and delivery of
financial services, is against giving state authorities any power to
file under the CAN-SPAM Act as the EFSC fears this may lead to
various interpretations of the Act from state to state and not
therefore fulfill its mission to provide a single set of provisions
that constitute legal e-mail marketing in the United States.
[91] Id.
[92] Id.
[93] Id., (Statement of Senator George Allen (R-VA).
[94] S. 2542, 106th Cong. (2000) (CAN-SPAM Act of 2000).
[95] S. 630, 107th Cong. (2001) (CAN-SPAM Act of 2001).
[96] 15 U.S.C.S. §§ 7701-7713 (2004) (CAN-SPAM Act of 2003).
[97] S. 2542 § 11(b)(1).
[98] S. 630 § 7(b).
[99] 15 U.S.C.S. § 7707(b)(1) (2004).
[100] S. 2542 § 11(b)(2)(A).
[101] S. 630 § 7(b)(1).
[102] 15 U.S.C.S. § 7707(b)(2)(A) (2004).
[103] S. 2542 § 11(b)(2)(B).
[104] S. 630 § 7(b)(2).
[105] 15 U.S.C.S. § 7707(b)(2)(B) (2004).
[106] S. 2542, 106th Cong. (2000) (The CAN-SPAM Act of 2000).
[107] Id. at § 13.
[108] S. 630, 107th Cong. (2001).
[109] S. 877, 108th Cong. (2003). This bill was codified as 15 USCS
§§ 7701-7713 (2004). The preemption provision is § 7707.
[110] 15 U.S.C.S. § 7707(c) (2004).
[111] See Cyber Promotions, Inc. v. America Online, 948 F. Supp. 436
(E.D.Pa. 1996). The plaintiff contended that AOL was serving a
municipal function similar to that of a post office and thus it would
be a First Amendment infringement for AOL to enjoin them from using
the ISP's servers to distribute e-mail; See also CompuServe Inc. v.
Cyber Promotions, Inc., 962 F.Supp. 1015, 1018, n1 (S.D. Ohio 1997).
The district court determined "the plaintiff [ISP] is not a
government agency or a state actor" thus allowing it to refuse access
to its servers. These two cases would be the starting point into the
justification for defining ISP policy provisions as a third tier of
enforcement under the CAN-SPAM Act of 2003.
[112] 149 Cong. Rec. S.13012, 13024 (2003).
[113] The provisions listed in this paper are based on a survey of
bill summaries available at http:\\www.spamlaws.com. Each state
statute is unique and only provisions that are fairly common to a
number of state laws are used here. This grouping is essentially
based on whether a provision is intended to prevent falsity or
deceptive advertising or whether it is intended as a guideline for
generating and disseminating legal spam.
[114] Blackwell, supra note 17.
[115] 149 Cong. Rec. S.13012, 13024 (2003) (statement of Sen. Ron
Wyden, co-sponsor of the CAN-SPAM Act of 2003).
[116] 149 Cong. Rec. S. 13012, 13022 (2003) (statement of Sen.
Conrad Burns, co-sponsor of the CAN-SPAM Act of 2003).
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