The CAN-SPAM Act of 2003: Is Congressional Regulation of Unsolicited Commercial E-Mail Constitutional?

By Simon, Marc | The Journal of High Technology Law, July 2004 | Go to article overview
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The CAN-SPAM Act of 2003: Is Congressional Regulation of Unsolicited Commercial E-Mail Constitutional?


Simon, Marc, The Journal of High Technology Law


I. INTRODUCTION

With the advent of the internet, commercial advertisers have seized the opportunity to exploit the new e-mail medium, one of the easiest, least expensive, and least regulated means of reaching a captive audience. In 1999, 2.2 billion junk e-mail messages were sent worldwide daily, totaling 803 billion pieces of junk or spam e-mail sent each year. (2) Today, spam constitutes more than 40 percent of all e-mail traffic on the internet, and it is anticipated that in the near future, that number will exceed 50 percent. (3) Furthermore, according to the Wall Street Journal and Reuters, 50 percent of children with email accounts receive e-mail with pornography, and under current law, parents are virtually powerless to stop their children from receiving inappropriate and disturbing solicitations. (4) This rampant abuse of the internet by bulk commercial solicitors has led to a public outcry for action. (5)

On December 16, 2003, the President signed the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act, the Act) into law. (6) The CAN-SPAM Act took effect on January 1, 2004. (7) This is the first federal law to attack the wave of spam that has overwhelmed computer in-boxes and cost businesses billons of dollars a year. Congress has tried numerous times in recent years to approve anti-spam legislation, but none of the over thirty proposals have made it through both houses. (8) Congress' efforts repeatedly have stalled over concerns about what is technologically possible and legally enforceable.

This article is one of the first to analyze the provisions of the CAN-SPAM Act in light of anticipated First Amendment challenges. The Act has yet to be challenged on constitutional grounds as it has only been in effect since January 1, 2004. However, a First Amendment challenge is imminent. (9)

The article contends that the CAN-SPAM Act will be upheld as constitutional in light of inevitable First Amendment challenges. Specifically, the article presents the likely First Amendment challenges to the Act's labeling requirements for spam, the Act's creation of a national do-not-e-mail registry, and the Act's increased labeling requirements for sexually oriented unsolicited commercial email (UCE). The article then concludes that the Act's provisions will pass constitution scrutiny when analyzed under the First Amendment's commercial speech doctrine. Although these provisions of the CAN-SPAM Act are likely to be upheld as constitutional, the article argues that the Act's do-not-e-mail registry will not be effective in reducing spam or locating senders of illegal UCE. The sheer breadth and physical makeup makes location of senders of illegal UCE impossible.

Part II of the article gives a brief overview of the CAN-SPAM Act. Part III discusses the current problem of junk e-mail. Part IV provides the legal background of the court's commercial speech doctrine. Part V analyzes the constitutionality of the CAN-SPAM Act's requirements for labeling regular UCE and the creation of a do-not-e-mail list. Part VI analyzes whether the CAN-SPAM Act may constitutionally require UCE containing sexually explicit material to be labeled further as a sexually explicit UCE. Part VII concludes that the labeling and do-not-e-mail provisions of the CAN-SPAM Act of 2003 will most likely be upheld as constitutional in the face of First Amendment challenges.

II. OVERVIEW OF THE CAN-SPAM ACT OF 2003

The CAN-SPAM Act of 2003 requires unsolicited commercial email messages to be labeled (though not by a standard method) and to include opt-out instructions and the sender's physical address. The law prohibits the use of deceptive subject lines and false headers in such messages. It pre-empts state laws that require labels on unsolicited commercial e-mail or prohibit such messages entirely, but does not affect provisions that address merely falsity and deception.

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