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Spam Laws Worldwide: Fun With Preemption: State Law After CAN-SPAM
Posted by Rebecca Bolin on Friday, July 16 @ 20:12:02 EDT Spam
CAN-SPAM preemption didn't stop Utah, Maryland, and Florida from passing their own spam laws in 2004, after CAN-SPAM went into effect. So how far does this pre-emption reach? What kind of state laws will follow CAN-SPAM?

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Preemption Scale

By design, CAN-SPAM preempts a good deal of state spam law. This was designed to prevent an environment in which compliance is impossible--7 different state labeling requirements, for example.

(1) In general
This chapter 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.
(2) State law not specific to electronic mail
This chapter shall not be construed to preempt the applicability of--
(A) State laws that are not specific to electronic mail, including State trespass, contract, or tort law; or
(B) other State laws to the extent that those laws relate to acts of fraud or computer crime.
15 USCA ยง 7707 (West Supp. 2003). This means a state cannot, say, implement an opt-in policy, require its own labels, or make content restrictions, such as a phone number in addition to the CAN-SPAM physical address requirement. This is good news for those trying to comply with spam regulations and not so devestating to states. All fraud claims are still viable in state court. This incorporates virtually all of the state laws which actually led to judgments before CAN-SPAM: trademark, hacking, false advertising, and far more creative strategies.

The state laws which were preempted--labeling, opt-outs, harvesting--were much less used, if at all. Many state spam laws, including the recently upheld Washington state fraud laws, are still valid. Virginia is still pursuing spammers vigorously using its falsification of headers and routing prohibitions. Washington keeps its individual cause of action even though CAN-SPAM doesn't make one, and Virginia outpaces the FTC in criminal charges, with a head start, of course.

This article looks at three pieces of law passed after CAN-SPAM to see if they are within its bounds. Obviously, there is much more spam law on the books with varying levels of validity, but these lawmakers lacked the benefit of foresight and can hardly be expected to draft a law that would not later be preempted.

Florida

Florida has long been a spam haven. Its gaping lack of spam laws made CAN-SPAM even more critical. Dumbstruck by federal legislation, Florida became "one of the last states in the universe" to enact spam law, when it joined the crowd this year. S2574 is well-crafted, parallel to similar law elsewhere. It prohibits false headers, routing, domains, subject lines, and content. It has a civil enforcement scheme with administrative enforcement for actual damages or $500 per violating message.

Florida's new law is entirely within CAN-SPAM. Though it regulates commercial electronic mail, it only prohibits false information.

Maryland

House Bill 1320 is a nod to Virginia's strong criminal spam laws. Maryland regulates bouncing, falsifying headers, sending messages from unauthorized computers or IPs, and, interestingly, registering for two or more domains or fifteen or more e-mail address with false information and subsequently sending commercial e-mail. This law is a strong criminal statute with an array of felonies, but it also contains civil provisions, enforced by the attorney general.

Though somewhat troubling to think of anonymous speech as fraudulent, Maryland's law also only regulates fraud or computer crime

Utah

Utah has long regulated spam heavily. Its private right of action under previous law generated 33,000 suits. Utah spam law now has several regulations; the newest was passed this year, H.B. 165, the Child Protection Registry. This law, passed shortly before the FTC rejected the Do-Not-Email registry, establishes a list of e-mail addresses (and other data) that belong to Utah minors.

It is illegal to send a message which

(a) advertises a product or service that a minor is prohibited by law from purchasing; or
(b) contains or advertises material that is harmful to minors, as defined in Section 76-10-1201.
This law is running awfully close to the pre-emption. It has nothing to do with fraud or computer crime (except the felony for using the list inappropriatly). Instead, it comes awfully close, but just misses pre-emption, at least the letter if not the spirit of CAN-SPAM.

As written, the registry applies to all senders; that is all senders who might send e-mails harmful to minors must pay the fee to use Utah's system (which has not been implemented yet). However, the advertisements are clearly a limitation on commercial speech, but this law also (in letter at least) applies to fax and phone and well, so it isn't exactly limited to commercial e-mail.

What gets struck in this pre-emption battle? Could CAN-SPAM really create a result in which a court might strike the commercial provisions and not the general ones--i.e. strike the advertising ban but not the harmful content, which arguably includes the advertising. Better yet, a court might strike the registry as applied to commercial senders, allowing non-commercial senders (entirely outside the scope of CAN-SPAM) to continue.

Utah, of course, is hoping nothing gets struck by throwing in other forms of communication and senders--that is making an unneccesarily broad law. Is this the outcome we want? To ban cigarette ads to minors, Utah has to ban all cigarette ads everywhere? Or just those by some media including--but not exclusivly--e-mail. No cigarette ads via e-mail. Or fax. Oh, and no e-mails or telemarketing without opt-in. There. Utah-style CAN-SPAM complaint law!

 
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