first-amendment email spam marketing commerce-clause
Can the government force spammers to disclose how they got my e-mail address?
<p>My impression is that a large proportion of unsolicited email marketing (SPAM) originates because the recipient willingly provides their address in the course of a desired interaction with a second-party, but in the process unwittingly consents to having their personal information shamelessly exploited, sold and resold to an unlimited number of third-parties.</p>
<p>A key factor is that the second-party can make a small profit at no cost (reputational or otherwise), because the SPAM recipients technically gave permission and have no means to determine which entities have exploited their personal info in undesired ways.</p>
<p>The U.S. doesn't have very strong anti-SPAM laws.  I suspect this is at least partially due to the fact that email marketing regulations would inherently confront issues of free speech, commerce, or others that could give marketers cause for action.</p>
<p>So my question is this, could a state or the federal government pass a law requiring email marketers to specify the chain of custody of your personal info, such that a person could revoke permission to others in the chain and/or hold them reputationally responsible?</p>

<h1>A Commerce Clause challenge would fail</h1>
<p>A Commerce Clause challenge seems like a sure loser. Under the Commerce Clause, Congress “has authority to regulate and protect the instrumentalities of interstate commerce,” <a href="https://casetext.com/case/gonzales-v-raich" rel="nofollow noreferrer"><em>Gonzales v. Raich</em>, 545 U.S. 1, 16 (2005)</a>.</p>
<p>Because “the Internet is an instrumentality and channel of interstate commerce” <a href="https://casetext.com/case/us-v-macewan#p245" rel="nofollow noreferrer"><em>United States v. MacEwan</em>, 445 F.3d 237, 245 (3d Cir. 2006)</a>, Congress has virtually boundless authority to regulate its use. <a href="https://casetext.com/case/gibbons-v-ogden-5#p194" rel="nofollow noreferrer"><em>Gibbons v. Ogden</em>, 22 U.S. 1, 196 (1824)</a> (“This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.”)</p>
<h1>A First Amendment challenge would probably fail</h1>
<p>But as you note, that authority is not boundless, as congressional enactments must still comport with the First Amendment. I would not be surprised by a First Amendment challenge to such a law, but I think it would fail.</p>
<p>Commercial speech enjoys less protection than speech by individuals. For instance, although the government may not limit speech merely because it concerns unlawful activity (<a href="https://casetext.com/case/brandenburg-v-ohio" rel="nofollow noreferrer"><em>Brandenburg v. Ohio</em>, 395 U.S. 444, (1969)</a>) or because it is false (<a href="https://casetext.com/case/united-states-v-alvarez" rel="nofollow noreferrer"><em>United States v. Alvarez</em>, 132 S. Ct. 2537, (2012)</a>).</p>
<p>But commercial speech is essentially unprotected by the First Amendment unless it concerns lawful activity and is not misleading. <a href="https://casetext.com/case/central-hudson-gas-electric-corporation-v-public-service-commission-of-new-york#p564" rel="nofollow noreferrer"><em>Central Hudson Gas Elec. v. Public Serv. Comm'n</em>, 447 U.S. 557, 563 (1980)</a>. And even then, the government has wide latitude to compel commercial speech, as opposed to restricting it:</p>
<blockquote>
<p>Because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides ... appellant's constitutionally protected interest in not providing any particular factual information in his advertising is minimal. Thus, in virtually all our commercial speech decisions to date, we have emphasized that because disclosure requirements trench much more narrowly on an advertiser's interests than do flat prohibitions on speech, warnings or disclaimers might be appropriately required in order to dissipate the possibility of consumer confusion or deception.&quot;</p>
</blockquote>
<p><a href="https://casetext.com/case/zauderer-v-office-of-disciplinary-counsel" rel="nofollow noreferrer"><em>Zauderer v. Office of Disciplinary Counsel</em>, 471 U.S. 626, 651 (1985)</a>.</p>
<p>There are, of course, still limits on the government's authority to compel speech, and the Supreme Court has struck down compelled commercial disclosures that did not deal with &quot;purely factual and uncontroversial information&quot; and did not relate &quot;to the services that [speakers] provide.&quot; <a href="https://casetext.com/case/natl-inst-advocates-life-advocates-v-becerra" rel="nofollow noreferrer"><em>Nat'l Inst. of Family &amp; Life Advocates v. Becerra</em>, 138 S. Ct. 2361, 2372 (2018)</a></p>
<p>It's unclear whether a disclosure law must satisfy both parts of that test or only one. If it's only one, an e-mail chain of custody seems sufficiently factual and uncontroversial to survive a First Amendment challenge. If the law has to pass both tests, it would likely come down to the question of whether that chain of custody bears a significant enough relationship to the speaker's services. I can imagine arguments both ways.</p>
<h1>The states may not impose new limits on spam e-mails.</h1>
<p>Although the federal government could enforce this law, a state government could not.</p>
<p>The <a href="https://casetext.com/statute/united-states-code/title-15-commerce-and-trade/chapter-103-controlling-the-assault-of-non-solicited-pornography-and-marketing" rel="nofollow noreferrer">CAN-SPAM Act of 2003</a> sets baseline rules for unsolicited commercial e-mail and permits the Federal Trade Commission to further regulate those messages. Although many people think those laws don't go far enough, the states are generally not permitted to enact any further regulations, because they are expressly pre-empted by <a href="https://casetext.com/statute/united-states-code/title-15-commerce-and-trade/chapter-103-controlling-the-assault-of-non-solicited-pornography-and-marketing/section-7707-effect-on-other-laws" rel="nofollow noreferrer">15 U.S.C. § 7707</a> (“This chapter supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages”).</p>
<p>There are two exceptions to this pre-emption. One permits additional state regulations addressing deceptive communications, and another permits additional state regulations that only incidentally effect e-mail messages. The first option seems weak, but perhaps a state could enact a law requiring <em>any</em> commercial solicitation -- regardless of medium -- to require such a chain of custody. I'd imagine, though, that the most common alternate means of sending such messages (fax, USPS, text message) are also regulated by federal laws that likewise pre-empt state regulation, so I think this could be difficult to pull off as well.</p>
<p>tl;dr: The federal government would likely be permitted to impose this law, but a state could not.</p>

<p>Commercial emails are highly regulated especially under the <a href="https://www.govinfo.gov/content/pkg/PLAW-108publ187/pdf/PLAW-108publ187.pdf" rel="nofollow noreferrer">CAN-SPAM Act</a>, so the federal government could pass amendments to the existing law to implement your suggestion. Depending on the exact law constructed, there could be a legal challenge based on the unreasonable burden that the new law would impose on businesses, insofar as the added burden is unlikely to materially advance the proffered government interest from the current state.</p>
