Legal Definitions - U.S. State Anti-Spam Laws: Introduction and Broader Framework

U.S. State Anti-Spam Laws: Introduction and Broader Framework refers to the collection of laws enacted by individual U.S. states that regulate unsolicited commercial electronic messages, commonly known as "spam." While many of these laws specifically target commercial email, this framework is much broader, often encompassing regulations for other forms of commercial solicitation, such as telemarketing calls, text messages, and even general unfair business practices that might involve spam.

States approach the issue of spam from various angles. Beyond direct anti-spam statutes, they often apply existing laws related to:

• Telemarketing and Anti-Solicitation: Rules governing unwanted phone calls or faxes.
• Text Messages and Emerging Media: Regulations for commercial messages sent via newer communication technologies.
• Unlawful Trade Practices: General consumer protection laws that prohibit deceptive or unfair business conduct, which can include misleading spam.
• Computer-Related Crime: Laws addressing unauthorized access to computer systems or misuse of electronic data, which might be involved in collecting email addresses for spam.

Legal experts often view these state anti-spam efforts as part of a larger framework of either privacy law (protecting individuals from unwanted intrusions) or telecommunications and computer-related law (regulating the use of electronic communication networks). The primary enforcers of these state laws are typically the State Attorneys General, though many laws also allow private citizens to sue companies that violate them.

It's important to note the role of federal law. The CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography And Marketing Act) is a federal law that sets national standards for commercial email. This federal law preempts, or overrides, many state laws that specifically regulate commercial email. However, states can still enforce laws that address other aspects of spamming not covered by CAN-SPAM, such as deceptive content, unsolicited text messages, or the illegal acquisition of email addresses. This is sometimes referred to as "piling on," where state laws add additional layers of regulation beyond the federal minimums.

Here are some examples of how U.S. state anti-spam laws and their broader framework might apply:

• Example 1: Unsolicited Commercial Text Messages
  A clothing retailer launches a marketing campaign where it sends unsolicited text messages with discount codes to thousands of mobile phone numbers it purchased from a third-party list. While the retailer's commercial emails might comply with the federal CAN-SPAM Act, a particular state has a specific law prohibiting unsolicited commercial text messages to mobile phones without the recipient's prior express consent. In this scenario, the state's Attorney General could take action against the retailer for violating its state-specific anti-solicitation law pertaining to text messages, even if the emails were federally compliant. This illustrates how state laws can regulate commercial communication through media other than email.

• Example 2: Deceptive Claims in Commercial Emails
  An online supplement company sends commercial emails advertising a "miracle weight loss pill" with exaggerated and scientifically unfounded claims. The emails include a clear unsubscribe link and a physical address, meeting the technical requirements of the federal CAN-SPAM Act. However, the state where the company operates has a strong "unfair and deceptive trade practices" law that prohibits false advertising. Even though the email technically complies with federal anti-spam rules, the state's broader consumer protection law could be used to prosecute the company for the deceptive content within the email, demonstrating how state laws can "pile on" by addressing aspects not fully preempted by federal law.

• Example 3: Illegal Acquisition of Email Addresses
  A marketing firm develops a software program that automatically scrapes email addresses from various public websites without permission, then uses these addresses to send commercial emails for its clients. While the emails themselves might contain an unsubscribe option as required by CAN-SPAM, the state where the firm operates has laws against computer fraud, unauthorized access to computer systems, or misuse of electronic data. The state could pursue legal action against the firm not for the content or sending mechanics of the emails, but for the illegal method used to acquire the email addresses in the first place, highlighting the application of state computer-related crime laws within the broader anti-spam framework.