Robocalls Have Been Blocked, But Businesses Can-Spam Emails with Little Regulation

P. Andrew Smith
Washington University Law Review

As the Supreme Court stated in the 2020 case Barr v. American Association of Political Consultants, “Americans passionately disagree about many things. But they are largely united in their disdain for robocalls." Americans are similarly united in their disdain for spam emails. However, Congress’s regulation of spam emails through the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) fails to protect vulnerable constituents in the same way the Telephone Consumer Protection Act (TCPA) protects from robocalls.

Using the TCPA, Barr, and other commercial speech cases as illuminating precedent, this Note focuses on the future of spam email and spam social media message (“social spam”) regulation. In Part I, this Note discusses the text and background of the TCPA and CAN-SPAM, relevant litigation, spam-related consumer harms, and emerging social spam concerns.

In Part II, this Note analyzes CAN-SPAM’s performance since its enactment. This Note argues CAN-SPAM has failed to protect consumers from spam emails and the emergence of social spam on several grounds. First, CAN-SPAM gives businesses too much leeway, which they have consistently abused. Second, CAN-SPAM lacks an expanded private right of action. Third, CAN-SPAM does not have a “do not email” registry. Fourth, CAN-SPAM allows non-commercial spam. Fifth, CAN-SPAM’s preemption provision prevents states from taking further steps in regulating spam emails. Sixth, CAN-SPAM is outdated and needs significant amendments to regulate social spam.

In Part III, this Note proposes that a new federal law needs to replace CAN-SPAM to effectively regulate spam emails and social spam. Utilizing the TCPA as a model, the new law should incorporate some current provisions of CAN-SPAM and add specialized regulations for social spam. The new law should include a provision which states that advertising emails, solicited and unsolicited alike, must include information on how the advertiser obtained the consumer’s email address. This legislative solution must be content-neutral in accordance with the commercial speech regulation test in Central Hudson Gas & Electric Corp. v. Public Service Commission and abide by the ruling in Barr.

Finally, in Part IV, this Note concludes by reemphasizing the need for a new federal law regulating spam emails and social spam. If more media coverage and public interest arises, members of the Senate Commerce Subcommittee on Communications, Media, and Broadband should capitalize on the opportunity to ease this evolving burden on consumers.

Read the full article here.

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