Preemption of State Spam Laws by the Federal Can-Spam Act

Unsolicited bulk commercial email is an increasing problem, and though many states have passed laws aimed at curbing its use and abuse, for several years the federal government took no action. In 2003 that changed when Congress passed the CAN-SPAM Act. Though the law contains many different restrictions on spam messages, including some restriction of nearly every type that states had adopted, the Act was widely criticized as weak. Many of the CAN-SPAM Act\u27s provisions are weaker than corresponding provisions of state law, and the Act preempts most state spam laws that would go farther, including two state laws that would have banned all spam. Despite these weaknesses, this Comment argues that when properly interpreted the CAN-SPAM Act leaves key state law provisions in force, and accordingly is stronger than many spam opponents first thought. First, the law explicitly preserves state laws to the extent that they prohibit falsity or deception in any portion of a commercial electronic mail message or information attached thereto. Though Congress was primarily concerned with saving state consumer protection laws, this language can be applied much more broadly. Second, the law is silent on the question of state law enforcement methods. State enforcement can be, and frequently is, substantially stronger than federal enforcement, which is largely limited to actions by the federal government, internet service providers, and state agencies. The Comment concludes by arguing that this narrow interpretation of its preemption clause is most consistent with the CAN-SPAM Act\u27s twin policy goals. By limiting the substantive provisions states may adopt, the Act prevents states from enacting inconsistent laws and enforces a uniform national spam policy. At the same time, narrowly interpreting the preemption clause permits states to experiment within the limits of that policy, in hopes of finding the most effective set of spam regulations

Service provider responsibility for unsolicited commercial communication (spam).

The Internet introduced the concept of email – a means of communication that arguably provides the communication base for industry in the developed world. Advertisers have not been slow to take up the opportunities offered by the Internet and the World Wide Web – in many cases subsidising web-site presence. Advertising has its place, however, and many would argue that one of the less popular side effects of fast, easy and global communication has been the exploitation of this medium for sending ‘spam’ (or junk-mail). The focus of this paper is on the role of Internet Service Providers (ISP’s) as the principle gatekeepers between the Internet and email-users. Legislation recognises this role and addresses the problem of spam. Other approaches to tackle the problem come from self-regulation and software applications (filtering technologies). This paper outlines some preliminary research that assesses the potential of eliminating illegal Spam whilst at the same time allowing companies to use e-mail as a marketing tool, based on cooperation between the Law and the IT Sciences

The Need for Business Law Co-Ordination in the Global Marketplace

E-mail is regarded by some companies as a mainstream marketing option. Legislation that prohibits unsolicited electronic messages of a marketing nature is a basis to stop the growth of spam. The ideal solution would be an international framework of legislation and law enforcement, but, legislation around the world has been diverse. New Zealand has taken a wait and see attitude to spam legislation. Its discussion paper “Legislating Against Spam,” which was issued in May 2004, made considerable reference to the Australian approach. This paper considers the proposed New Zealand legislation in light of the Australian Spam Act 2003 and the New Zealand and Australian Memorandum of Understanding (MoU) on business law co-ordination. Does the proposed legislation go far enough? Legislation is a positive move. Without legislation, there is no basis from which New Zealand can address spam on a global basis. It is also a move to ensure sound business e-marketing practices which are essential as the Internet increases in importance for business communications. Spam is a global problem and reference is also included to the diverse approaches of the United Kingdom and the United States

Is There Judicial Recourse to Attack Spammers?

This Note will discuss the issue of non-commercial spam through the prism of a case recently decided by the California Supreme Court, Intel v. Hamidi. Until recently there was no federal regulation for unwanted electronic communication and common law was the only potential solution. Part I of this Note will discuss the nature of spam, focusing on the distinction between commercial e-mail and bulk e-mail and the importance therein. Part II will detail the history and the legal doctrine of trespass as it applies to the Internet. Part III will summarize the case of Intel v. Hamidi as it struggled to apply the doctrine of trespass to the electronic medium of the Internet. Various legal justifications for a solution to spam will be presented. Part V will examine the potential for a market-based solution and assess recent federal legislation aimed at the problem

Washington\u27s Spam-Killing Statute: Does It Slaughter Privacy in the Process?

In 1998, the Washington Legislature passed an historic law prohibiting the sending of commercial e-mail messages containing false or misleading information in the subject line or header. The law also permits companies that provide Internet services, known as Internet Service Providers (ISPs), to block the transmission or receipt of messages reasonably believed to violate the statute. However, the law fails to specify the permissible activities that an ISP may pursue to form such a reasonable belief. It thereby encourages a variety of intrusive ISP activities, such as message screening. Existing statutory and constitutional privacy law provides the only shield for an e-mail subscriber against invasive ISP activities. This Comment argues that these existing privacy laws fail to provide meaningful protection to e-mail subscribers from the potential abuses of their ISPs. The Comment recommends legislative action to amend the anti-spam law by explicitly limiting the ways in which an ISP may develop its reasonable belief that a particular e-mail message violates the anti-spam statute

Does the U.S. SAFE WEB Act Strike the Proper Balance Between Law Enforcement Interests and Privacy Interests?

The Internet and advances in telecommunications technology present unprecedented opportunities for cross-border fraud and deception directed at U.S. consumers and businesses. However, the Federal Trade Commission’s (“FTC”) ability to obtain effective relief may face practical impediments in prosecuting these cross-border wrongdoers. To help address the challenges posed by the globalization of fraud, President Bush signed the Undertaking Spam, Spyware and Fraud Enforcement With Enforcers Beyond Borders Act of 2006 (“U.S. SAFE WEB Act” or “Act”) into law on December 22, 2006. This Article discusses the FTC’s expanded enforcement authority granted by the Act to fight fraud and deception, and particularly to fight illegal spam, spyware, and cross-border fraud and deception. Privacy advocates have voiced concern that the FTC may now have more power to invade the privacy of U.S. citizens. This Article concludes that the Act’s grant of power to the FTC is not too broad, and that the Act maintains an appropriate balance between law enforcement interests and privacy interests

Analyzing the Social Structure and Dynamics of E-mail and Spam in Massive Backbone Internet Traffic

E-mail is probably the most popular application on the Internet, with everyday business and personal communications dependent on it. Spam or unsolicited e-mail has been estimated to cost businesses significant amounts of money. However, our understanding of the network-level behavior of legitimate e-mail traffic and how it differs from spam traffic is limited. In this study, we have passively captured SMTP packets from a 10 Gbit/s Internet backbone link to construct a social network of e-mail users based on their exchanged e-mails. The focus of this paper is on the graph metrics indicating various structural properties of e-mail networks and how they evolve over time. This study also looks into the differences in the structural and temporal characteristics of spam and non-spam networks. Our analysis on the collected data allows us to show several differences between the behavior of spam and legitimate e-mail traffic, which can help us to understand the behavior of spammers and give us the knowledge to statistically model spam traffic on the network-level in order to complement current spam detection techniques.Comment: 15 pages, 20 figures, technical repor

Spam on the Internet: can it be eradicated or is it here to stay?

A discussion of the rise in unsolicited bulk e-mail, its effect on tertiary education, and some of the methods being used or developed to combat it. Includes an examination of block listing, protocol change, economic and computational solutions, e-mail aliasing, sender warranted e-mail, collaborative filtering, rule-based and statistical solutions, and legislation

Political E-Mail: Protected Speech or Unwelcome Spam?

Candidates for political office are using unsolicited bulk e-mails to reach the electorate. Commonly known as political spam, this campaign tactic is an inexpensive supplement to television, radio, and print ads. Advocates claim that campaigning via the internet reduces candidates\u27 dependence on fundraising, but critics detest political spam as the latest nuisance. This iBrief examines the legal basis for political spam, distinguishes political spam from analogous regulated speech, and argues that political spam serves an interest worth protecting