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

state_anti-spam_laws

Most U.S. states have enacted laws that pertain, directly or indirectly, to commercial email.  These laws often parallel, and in some cases are directly connected to, other state laws that address telemarketing practices, or commercial solicitation through other media (e.g. text messages).  Furthermore, in many states laws addressed to unlawful business and trade practices apply to spam email, either explicitly or implicitly.

Legal scholars and practitioners tend to treat anti-spam law either (1) as part of a larger framework of privacy law, or (2) as part of a larger framework of telecommunications and computer-related law.  Canada's Anti-Spam Law of 2010 can be seen as drawing these two strands together in an effort to create a comprehensive legal framework for internet-based commerce.  See Canadian Anti-Spam Act of 2010: Legislative Background.

While the variety in U.S. state laws connected, directly or indirectly, with spam and commercial telecommunications activity does not readily lend itself to a unitary presentation, most of the relevant state laws can be classed under one of the following headings: 

  • Commercial emails and spam;
  • Telemarketing and Anti-Solicitation (Telephonic and Fax);
  • Anti-Solicitation Laws Relating to Texts and Other Emerging Media;
  • Unlawful Trade Practices;
  • Pornography;
  • Computer-related crime.

Most states can be seen as possessing a legal framework for internet-based commerce that combines more than one of these types of law.  While the state attorney general tends to be the primary enforcer of each state's legal framework, many of the individual laws provide for private rights of action.  Furthermore, state common law (e.g. cases applying the traditional tort of "trespass to chattels" to electronic commerce and email) will supplement the statutory framework, providing additional bases for private, civil litigation.

Focusing particularly on the laws specific to commercial email and spam, this portion of the Inbox Project will build state-by-state surveys that provide an overarching sense of the legal framework for internet-based commerce within particular states.  States can be compared to one another on the basis of similarities and differences in the ways different types of laws are combined and enforced.

It is important to note that the CAN-SPAM Act of 2003 preempts a significant portion of the state law specific to commercial email and spam.  Practitioners sometimes refer to the portions of state law that are left after CAN-SPAM Act preemption as "piling on".  While we will attempt to identify the portions of state law that likely survive preemption (thus "piling on" to the Federal CAN-SPAM Act), the reader should be aware that such questions will ultimately be resolved by courts.  See Inbox Project FAQ: What Can States Regulate?