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E-Commerce News
Can-Spam Act Does Not Preempt State University's Spam Policy; E-Mail Messages Are Presumed Delivered
September 26, 2005
CAN-SPAM ACT DOES NOT PREEMPT STATE UNIVERSITY'S SPAM POLICY
A federal appellate court in Texas has ruled recently that a state university may implement an anti-spam policy that is even more demanding than the CAN-SPAM act's provisions where the university is acting in the capacity of an Internet service provider.
The appellate court also ruled that the university's anti-spam policy did not violate the First Amendment, because there is a substantial government interest in safeguarding users from unwanted e-mail. The court was not certain, however, whether the University could block all messages from the defendant.
The case is significant because it apparently is the first time a federal appeals court has considered whether a state entity acting as an ISP qualifies for the ISP exception to the state law preemption clause of the CAN-SPAM Act.
Under its internal anti-spam policy, The University of Texas (UT) blocks many types of incoming spam. The plaintiff, White Buffalo, operates several online dating services, including one that targets UT students. After receiving several complaints about unsolicited e-mail "blasts" from White Buffalo, UT sent a letter demanding that White Buffalo cease the activity. White Buffalo responded by saying it was entitled to send the messages because it complied with the technical requirements of the CAN-SPAM Act. UT's response was to block all e-mail originating from the Internet Protocol address used by White Buffalo.
Although White Buffalo obtained a temporary restraining order from state court, UT removed the case to federal court, stating that the federal court had jurisdiction because the suit presented a question of federal law. The federal district court granted summary judgment for the University. It ruled that the CAN-SPAM Act did not prevent UT from implementing its own anti-spam regulations.
The legal issue for t he court was the reach of the CAN-SPAM Act's preemption clause. That clause essentially provides that, for the sake of regulatory uniformity, the CAN-SPAM Act supersedes any regulation created by a state or a state entity relating to the regulation of e-mail. The CAN-SPAM Act, however, carves out a set of entities to be exempt from any possible preemptive effect, including Internet service providers whose policies allow them to decline to transmit, route, relay, handle or store certain types of electronic mail message.
Apparently Congress didn't consider the possibility that a state entity could also act as an ISP. So the appellate court needed to decide whether UT, a state university, was a state entity (and therefore preempted) or an ISP (and therefore able to set policies that are free from CAN-SPAM preemption).
In concluding that the ISP exception applied to UT, the court noted that it would be unusual to allow private, but not public, educational institutions to act as custodians for the interests of its online community. "As a result of Congress's apparent failure to contemplate this question," the court wrote, "we must not infer preemption."
The court assessed White Buffalo's First Amendment claim, under the "commercial speech" doctrine, which asks:
(1) whether the speech is unlawful or misleading;
(2) whether the government's expressed interest is substantial;
(3) whether the state action directly promotes that interest; and
(4) whether the state action is more extensive than necessary to promote that interest.
As to the first question, White Buffalo and UT agreed that White Buffalo's commercial messages were neither unlawful nor misleading.
On whether the government's interests were substantial, the court found that UT's gate keeping interest in protecting users from the "hassle" of unwanted spam was substantial. It also noted that blocking unwanted e-mails to users directly promotes that interest, thus answering question three.
Although the court questioned whether the blocking was "no greater than necessary," it still found that the arguments on user efficiency were enough to carry the First Amendment issue in the University's favor.
Based on the ruling, it appears that spammers such as White Buffalo don't make real sympathetic litigants. Imagine that.
E-MAIL MESSAGES ARE PRESUMED DELIVERED
Can a court presume that messages sent via electronic mail have been delivered? According to the federal court of appeals for the Eighth Appellate circuit, the answer is yes. That court did acknowledge, though, that a party may rebut the presumption if it produces evidence demonstrating the unreliability of the computer system used to send the messages.
The case arose when the American Boat Co. sued the United States for failing to properly maintain navigable waters in the lower Mississippi River after one of the company's towboats crashed into an unknown submerged wreck. At one point during the course of the litigation, American Boat filed a motion on an important procedural issue. The lawyer serving as local counsel for American Boat periodically checked an electronic court docket, called PACER, to see how the court ruled on the motion. To its chagrin, in March 2004, local counsel discovered an entry on PACER that the court had denied the motion in November 2003. Although local counsel had registered with the court to be notified of rulings by e-mail, he had not received any notification, electronic or otherwise, of this ruling. By the time he learned about the ruling, American Boat had missed its deadline for appealing.
American Boat filed a motion to reopen the time to file an appeal, but the District Court was unsympathetic. The court was not moved by affidavits from local counsel that they did not receive the promised e-mails. According to records maintained in the clerk's office, an e-mail notice had been sent to counsel of record on the date the order issued. On the basis of this evidence, the district court judge determined that there is a presumption that an e-mail is delivered to where it is sent in the absence of any "returned as undeliverable" message.
On appeal, the Eighth Circuit also found a presumption of delivery applied to e-mails. Noting that a jury may infer that information sent by postal mail or telegram was received, the court could find "no principled reason why a jury would not be able to make the same inference regarding other forms of communication--such as facsimiles, electronic mail, and in-house computer message systems--provided they are accepted as generally reliable and that the particular message was properly dispatched."
The Eighth Circuit Court dug a little deeper than the district court. It noted that there were several factors which called into question the reliability of the court's notification system. Not only did local counsel for American Boat not receive the e-mails, but neither did co-counsel for the United States. Even those attorneys who opted for paper notice instead of e-mail did not receive a copy. Also, the system had only been up and running for a few weeks when the order was issued, and like many computer systems may be subject to inevitable "glitches," the court observed.
The court of appeals reversed and remanded, with instructions for the district court to hold an evidentiary hearing on the reliability of the computer system. Although the court recognized the possibility of a "glitch," the fact that it recognized the presumption of delivery is further evidence that electronic communication is increasingly "mainstream."
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