Decisions in several United States ("US") federal cases suggest that the US CAN-SPAM Act does not preempt spam-related state regulations. State universities and other government institutions across the US have implemented anti-spam policies and adopted spam-blocking systems. Spam-blocking systems are commercial or specifically-designed software developed to block unsolicited commercial e-mails. Blocking spam has not been considered a violation of the Freedom of Speech under the US Constitution. Further, some private networks, following their in-house IT policies, may inadvertently provide differential treatment when blocking unsolicited e-mails. This differential treatment of spam has not been considered a violation of the Equal Protection clause. These three issues, the preemption clause of the CAN-SPAM Act, the First Amendment Freedom of Speech, and the Equal Protection Clause, have been considered in the context of state anti-spam actions.
The Parties & Facts
White Buffalo Ventures, LLC v. Univ. of Tex at Austin, (2004) is an example of how federal courts have dealt with the issue of differential treatment of spam by private networks. In Buffalo, the University of Texas, the defendant, had internal anti-solicitation and anti-spam policies that required blocking spam. Yet, some spam reached the students and faculty school e-mail addresses. This circumstance was caused by imperfections in the spam-blocking system, school officials claimed. E-mails sent to utexas.edu were stored on computer servers owned and operated by the University of Texas. The school used commercial spam filters that triggered an alarm when a large amount of e-mails came from one IP address. Sometimes the filters did not alert of spam but faculty of students raised spam complaints.
White Buffalo Ventures, the plaintiff, was a commercial enterprise that promoted its website to members of the University of Texas by sending unsolicited e-mails to them (allegedly, over 55,000 unsolicited e-mails were sent). The University of Texas added a filter to its spam-blocking system to stop spam from White Buffalo Ventures, after the school had amicably requested White Buffalo Ventures to stop its spam practice. Consequently, White Buffalo Ventures filed a lawsuit against the University of Texas at Austin.
The Complaint
In its complaint, White Buffalo Ventures sought to enjoy the U. of Texas from blocking White Buffalo's massive e-mails because, plaintiff argued, it violated its Free Speech rights under the First Amendment and Equal Protection rights under the Fourteenth Amendment to the US Constitution. Additionally, the spammer plaintiff complained that the U. of Texas could not block its unsolicited e-mails under the US CAN-SPAM Act (15 U.S.C.S. 7701 et seq) for two reasons. First, the plaintiff contended that its unsolicited e-mails complied with the CAN-SPAM Act. Second, Plaintiff claimed that CAN-SPAM, a federal law, preempted any state from regulating unsolicited electronic e-mails; including the school anti-spam policy. Plaintiff argued that no state can place further limitations on unsolicited e-mail beyond those established by CAN-SPAM.
The Law
The US Constitutes guarantees Freedom of Speech under its First Amendment, and Equal Protection of the Law under its Fourteenth Amendment. Extensive case law establishes the requirements to successfully claim violation of any of these Constitutional rights.
The US CAN-SPAM Act of 2003 was enacted to deal with the challenge posted by spamming practices. It prohibits sending deceptive or misleading information to promote businesses; using deceptive hearings in commercial e-mails; and sending e-mails after the recipient has indicated that it does not want to receive more e-mails. It also requires senders to include return e-mail addresses in their e-mail messages.
Section 7707(b)(1) of the CAN-SPAM says: [this law] "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 any such statute, regulation, or rules prohibits falsity or deception in any portion of a commercial mail message or information attached thereto."
The Court's Decision
Regarding plaintiff's interpretation of CAN-SPAM Act (that it preempts any state action), the court admitted e-mail communications, as per the US Congress interpretation, are inherently interstate in nature. Hence, the Court reasoned, the plaintiff ignores Congress' acknowledgment of the CAN-SPAM Act limitations as stated in §7701(a)(12): "the problems associated with the rapid growth and abuse of unsolicited commercial email cannot be solved by Federal legislation alone." "The "development and adoption of technological approaches... will be necessary as well."
More importantly, this District Court clarified that within the CAN-SPAM preemption rule, Congress introduced a commentary affirming that the Act does not preempt application of state laws, not specific to e-mails, like contract, torts, trespass, computer crimes, and fraud. The court directly quoted the following section from CAN-SPAM: [the Act should not 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 access service of a policy of declining to transmit, route, relay, handle, or store certain types of electronic mail messages." 15 U.S.C. § 7707(c)."
Regarding the First Amendment claim, the court held that the U. of Texas had asserted substantial government interest in protecting its network from spam. Indeed, the U. of Texas had substantial interest in protecting the productivity of its faculty and students by blocking unsolicited messages. This decision was rendered under the precedent in Commercial Hudson Gas & Electric Corp. v. Public Service Commission and without deciding whether a university Internet network constitutes public forum.
In reference to the Equal Protection claim, the court held the plaintiff did not prove that spam from White Buffalo Ventures was treated differently than spam from other sources. The U. of Texas had a policy requiring blocking 'all spam' but due to 'imperfections' in the system some spam were not blocked. The U. of Texas proved that it blocked all spam that was brought to their attention, including White Buffalo Ventures' spam, of which faculty and student complained.