After CAN-SPAM, How States Can

The John Marshall Journal of Information Technology & Privacy Law Volume 22 Issue 1 Journal of Computer & Information Law Article 3 - Fall 2003 Fall 2003 After CAN-SPAM, How States Can Stay Relevant in the Fight Against Unwanted Messages:How a Children's Protection Registry Can be Effective and is Not Preempted, Under the New Federal Anti-Spam Law, 22 J. Marshall J. Computer & Info. L. 29 (2003) Matthew B. Prince Follow this and additional works at: https://repository.law.uic.edu/jitpl Part of the Computer Law Commons, Internet Law Commons, Privacy Law Commons, and the Science and Technology Law Commons Recommended Citation Matthew B. Prince & Patrick A. Shea, After CAN-SPAM, How States Can Stay Relevant in the Fight Against Unwanted Messages, 22 J. Marshall J. Computer & Info. L. 29 (2003) https://repository.law.uic.edu/jitpl/vol22/iss1/3 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in The John Marshall Journal of Information Technology & Privacy Law by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. AFTER CAN-SPAM, HOW STATES CAN STAY RELEVANT IN THE FIGHT AGAINST UNWANTED MESSAGES HOW A CHILDREN'S PROTECTION REGISTRY CAN BE EFFECTIVE, AND IS NOT PREEMPTED, UNDER THE NEW FEDERAL ANTI-SPAM LAW MATTHEW B. PRINCEt AND PATRICK A. SHEA* I. INTRODUCTION Thirty-six states have tried. Since 1997, thirty-six states have passed their own particular variation of an anti-spam law.' Beginning with Nevada, one by one across the country state after state drafted and passed laws designed to beat back the rising tide of unsolicited electronic mail. The scourge of unwanted messages, colloquially known as "spam," had become one of the top consumer complaints in legislators' offices na- tionwide. 2 It filled electronic mail inboxes with solicitations for pornog- t Matthew B. Prince is the CEO and co-founder of Unspam, LLC, an Illinois-based business and government consulting company helping to draft and enforce effective anti- spam laws. He is a member of the Illinois Bar and an Adjunct Professor of Law at The John Marshall Law School. He received his J.D. from the University of Chicago Law School and his B.A. in English and Computer Science from Trinity College, Hartford, Connecticut. t Patrick A. Shea is an attorney in private practice in Salt Lake City, Utah. He is a member of both the Utah and District of Columbia Bar and has taught law and political science at the University of Utah and Brigham Young University. Before joining Ballard Spahr, he worked for the Clinton Administration as the Deputy Assistant Secretary for Land and Minerals Management and the Director of the Bureau of Land Management. He has litigated extensively in the area of the First Amendment, freedom of speech, and the rights of the media. He received his J.D. from Harvard Law School, his M.A.in Genetics, Ethology, and Anthropology from Oxford University, and his B.A. from Stanford Univer- sity, where he was a Rhodes Scholar. 1. See David E. Sorkin, Spam Laws <http://www.spamlaws.com/state/index.html> (accessed Jan. 30, 2004). The particular states and their individual statutes are cited ex- plicitly below. 2. The Federal Trade Commission (FTC) reports that they receive more than 130,000 complaints about spam each day at a special electronic mail address the commission has 30 JOURNAL OF COMPUTER & INFORMATION LAW [Vol. XXII raphy, dubious herbal supplements, fraudulent credit offers, and scams sent from purported Nigerian diplomats.3 For state legislators, there was no tastier dish to serve to constituents than a measure promising to 4 broil spam. The problem was that as states set out to fry spam, every state followed the same basic recipe. 5 Unfortunately, that recipe simply did not work. In the seven years under anti-spam laws, only two states have brought successful prosecutions. 6 Only one of those was able to enforce established ([email protected]). See FTC, FTC Measures False Claims InherentIn Random Spam <http://www.ftc.gov/opa/2003/04/spamrpt.htm> (Apr. 29, 2003). States, too, face consumers angry about spam. For example, in Washington state, spam has become the "number one consumer complaint," according to the Assistant Attorney General. See Paula Selis, Public Forum, FTC Spam Forum, (FTC Conf. Cent., Washington, DC, May 2, 2003). The Washing- ton Attorney General's office receives 1,000-1,600 complaints per month about spam. See Wa. Atty. Gen. Web site, Junkmail <http://www.atg.wa.gov/junkemail/> (accessed Jan. 30, 2004). ISPs too have stated that span is the top complaint they receive from their custom- ers. See e.g. Brian Morrissey, Report: ISPs Block 17 Percent of Legit E-mail, InternetNews. com (Aug. 12, 2003) (available at <http://www.internetnews.com/IAR/article.php/22476 51>). 3. See generally Brian Bergstein, AOL: Viagra, Oprah Among Top Spam Topics, eWeek (Dec. 31, 2003) (available at <http://www.eweek.com/article2/0,4149,1425061,00 asp>) (a general list of the top subjects of spam for 2003). 4. Public support for anti-spain laws is extremely high. See e.g. InsightExpress and Unspam, 2003 Comprehensive Spam Survey, <http://www.unspam.comfight spam/information/survey-personal.html> (updated Oct. 15, 2003) (more than eighty-five percent of respondents favor strong anti-sparn laws, ninety-five percent of parents favor laws that protect children from pornographic spam); SurfControl, SurfControl Survey Finds Majority of IT ProfessionalsFavor Introduction of FederalLegislation to Regulate Spam (Jan. 2003) (available at <http://www.surfcontrol.com / resources / surveys / SurfControl_Jan.Survey. pdf>) (ninety-five percent of information technology professionals support strong anti-spam laws). 5. Part of the reason for this appears to stem from the lobbyists advocating for the anti-spam laws. Technology companies such as Microsoft distributed position papers in multiple states calling for legislation following a basic formula. Microsoft Corporation, Microsoft & Spam Legislation 1-2 (unpublished legislative talking points memo, 2003) (copy on file with the authors). With few other organizations lobbying states, legislators appear to have generally followed the Microsoft model. 6. Washington and California are the only two states to successfully enforce their anti-spam laws. Washington has received two judgments in two different anti-spam cases and has a third pending. See Beth Taylor, Anti-spam Law Fails to Deter Junk-mail Market- ers, Pudget Sound Bus. J. (available at <http://www.bizjournals.com/seattle/stories/2002/ 12/23/focusl.html>) (updated Dec. 20, 2002); see also Office of Wash. Atty. Gen, State Sues Porn-Promoting Spammer <http://www.atg.wa.gov/releases/rel-spam-121602.html> (accessed January 30, 2004). The judgments are notable because, having targeted spammers in Texas, Oregon, and California, Washington is the only state to have enforced its anti- spam law against any out-of-state spammers. Id. In addition to Washington, California recently received a 2 million dollar judgment against two spammers. See Elise Ackerman, Judge Orders Spammers to Pay $2 Million Fine, San Jose Mercury News Online <http:/ www.siliconvalley.com/mld/siliconvalley/7101397.htm> (Oct. 25, 2003). However, both spammers were based in the state, presenting fewer jurisdictional problems. Id. As this 2003] AFTER CAN-SPAM its law against an out-of-state spammer. 7 And neither state has been able to collect more than trivial portions of the settlements or judgments that they have been awarded.8 As the old adage goes, without enforce- ment there is no law. In spite of the fact that a majority of states had passed some anti-spam statute, these measures have offered almost no protection. When Federal legislators decided that this was a dinner party they wanted to crash, they too followed the same basic recipe that had repeatedly failed at the state level. Instead of strengthening and ad- justing the law to address the problems states had faced, Congress passed a Federal statute, known as CAN-SPAM,9 which merely watered down the recipe and served it to the entire nation. Disturbingly, what is arguably the most powerful provision of the new Federal law is a section that appears to preempt state spam regula- tion.10 While the first generation of state anti-spam laws has not enjoyed much success, Federal preemption is potentially troubling in this area because it threatens to enjoin future state experimentation. We all article goes to press, two additional states have litigation pending under their anti-span statutes. First, Jerry Kilgore, the Virginia Attorney General, has filed criminal charges against two out-of-state spammers and is seeking jail time. See Jonathan Krim, Virginia Indicts Two Men on Spam Charges, Wash. Post Online <http://www.washingtonpost.com/ ac2/wp-dyn/A56209-2003Decll> (Dec. 11, 2003). Second, Jay Nixon, the Missouri Attorney General, has filed a case against a Florida spammer who sent messages to an address maintained by the attorney general's office without including the required "ADV:" label. See Stefanie Olsen, Missouri Files Spam Suit under New Law, CNET News.com <http:fl news.com.com/2100-1028-5089720.html> (Oct. 10, 2003). Even if these cases prove successful, they represent a mere drop in the bucket given the enormous volume of illegal spam being sent. New York also has a case pending; however, it uses a traditional consumer protection statute, not an anti-spain statute, as New York is one of the fourteen states that does not have an anti-spam law. See infra n. 26. 7. Washington has had more success enforcing its anti-spain statute than any other state.

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