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States and state-funded organizations can regulate certain aspects of spam emails, but it depends on how courts interpret state anti-spam regulations in relation to the federal CAN-SPAM Act. Some state laws, such as those related to consumer protection and deceptive content, can survive preemption challenges. However, if state laws differ too much from the CAN-SPAM Act, they may be preempted and create confusion about which laws apply to commercial email.
States and state-funded organizations can regulate certain aspects of commercial email, but the extent of their regulation depends on how courts interpret state anti-spam regulations in relation to the CAN-SPAM Act.
For example, if a state university is also an "internet access service" provider, its anti-solicitation IT policy (which may prescribe the blocking of spam emails) may survive a preemption challenge. Additionally, state law claims for violation of consumer protection acts, deceptive content, and ISP claims for fraud and deception may also survive CAN-SPAM preemption analysis.
However, the CAN-SPAM Act preempts state law claims that differ from its provisions in ways that could create confusion about the law that applies to commercial email. For instance, if a state law required additional disclosures beyond what the CAN-SPAM Act mandates, it could be preempted.
Examples of state regulation of commercial email include:
These examples illustrate how states can regulate certain aspects of commercial email, but their regulations must be consistent with the requirements of the CAN-SPAM Act to avoid preemption.