AuthorSmith, Drew


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." (1) Americans are similarly united in their disdain for spam emails. (2) 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. (3)

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. (4)

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. (5) 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 Sixth, CAN-SPAM is outdated and needs significant amendments to regulate social spam.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. (6) 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 (7) 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. (8) 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.


    Before delving into the compelling history of CAN-SPAM and spam regulation in the United States, it is crucial to understand the TCPA's legislative inception, impact, and interpretation. The parallels between the TCPA and CAN-SPAM go beyond the historical similarities, and the TCPA provides solid footing as model legislation for a new federal law replacing CAN-SPAM.

    1. TCPA

      In 1991, Congress passed the TCPA in response to "a torrent of vociferous consumer complaints about intrusive robocalls. A growing number of telemarketers were using equipment that could automatically dial a telephone number and deliver an artificial or prerecorded voice message." (9) The TCPA was enacted to "prevent[] businesses from shifting their advertising costs to the recipients of unsolicited fax advertisements; discourag[e] and prevent[] unsolicited advertisements over the telephone lines; protect[] individual's privacy in their homes; and provid[e] a remedy to consumers for telemarketing abuses." (10)

      With the help of the Federal Communications Commission's (FCC's) power to create and implement rules, the TCPA prohibits robocalls to wireless telephone numbers unless the wireless consumer gives prior consent or the robocall is made for emergency purposes. (11) The TCPA also prohibits telemarketing calls to residential numbers listed on the National Do Not Call Registry and requires robocalls to identify "the entity responsible for initiating the prerecorded voice message call" at the beginning of the message. (12) The responsible entity must provide a telephone number so that the consumer who was called can make a do-not-call request either during or after the robocall. (13) The TCPA also "restrict[s] the hours during which a telephone solicitor may call a consumer's residence (not prior to 8 a.m. or after 9 p.m.)." (14)

      The TCPA has evolved through multiple legislative amendments. In 2015, Congress amended the TCPA to "allow[] robocalls that are made to collect debts owed to or guaranteed by the Federal Government, including robocalls made to collect many student loan and mortgage debts." (15) Essentially, this was a government-backed debts amendment. In 2019, Congress amended the TCPA again through the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED). (16) TRACED "required the FCC to mandate the STIR/SHAKEN (17) caller identification framework," which "[r]equire[ed] voice service providers to adopt call authentication technologies, enabling a telephone carrier to verify that incoming calls are legitimate before they reach consumers' phones." (18) As a result, major carriers, including "AT&T, Sprint, T-Mobile, U.S. Cellular, and Verizon, have [implemented] services that alert [consumers] that an incoming robocall may be" spam. (19) Also, TRACED "gives the FCC more time to take action against robocallers and fine them for up to $10,000 per call." (20)

      Since its passage, the TCPA has been the subject of a considerable amount of litigation. In Destination Ventures, Ltd. v. FCC, (21) the Ninth Circuit upheld the constitutionality of the TCPA. (22) The Ninth Circuit applied the Supreme Court's commercial speech test from Central Hudson:

      (1) whether the speech is protected, that is, not false or deceptive; (2) if the speech is protected, whether the government has a substantial interest in regulating the kind of speech; (3) whether the regulation advances that government interest; and (4) whether the regulation is tailored to serve the government interest. (23) The test falls under the intermediate scrutiny standard. (24) In Destination Ventures, plaintiffs challenged the TCPA's provision "banning unsolicited faxes that contain advertisements." (25) The plaintiffs, Destination Ventures, did not dispute the first part of the Central Hudson test, that the speech is protected, or the second part of the test, that Congress had a substantial government interest in regulating robocalls and unsolicited faxes and "preventing the shifting of advertising costs to consumers." (26) Destination Ventures challenged the third and fourth parts of the Central Hudson test--that a regulation advance a substantial government interest and be narrowly tailored--by arguing the TCPA was not a "reasonable fit" between the substantial government interest and the ban on unsolicited fax advertisements. (27) The Ninth Circuit disagreed, finding that because Congress's goal in passing the TCPA was partially "to prevent the shifting of advertising costs, limiting its regulation to faxes containing advertising was justified," and the TCPA was "evenhanded, in that it applies to commercial solicitation by any organization, be it a multinational corporation or the Girl Scouts." (28)

      In Moser v. FCC, the Ninth Circuit again upheld the constitutionality of the TCPA, holding the statutory ban on prerecorded telemarketing calls was content-neutral and did not violate appellees' free speech rights. (29) Under free speech analysis, Congress "may impose reasonable restrictions on the time, place, or manner of protected speech," as long as the restrictions are (1) "justified without reference to the content of the restricted speech," (2) "narrowly tailored to serve a significant governmental interest," and (3) they "leave open ample alternative channels for communication of the information." (30) Once again, the substantial interest in regulating robocalls and protecting "residential privacy" was not challenged. (31) Instead, plaintiffs challenged whether the TCPA was narrowly tailored and whether it left open alternative channels. (32) The Ninth Circuit concluded that the TCPA was narrowly tailored, holding that "Congress may reduce the volume of intrusive telemarketing calls without completely eliminating the calls." (33) The court also found that Congress had considered adequately less restrictive alternatives. (34) The Ninth Circuit concluded the TCPA did leave open alternative channels, "including the use of taped messages introduced by live speakers or taped messages to which consumers have consented, as well as all live solicitation calls." (35)

      In Barr, the Supreme Court held the 2015 government-backed debts amendment to the TCPA violated the First Amendment and was severable from the rest of the TCPA. (36) The legality of the 2015 amendment turned on whether a robocall "made solely to collect a debt owed to or guaranteed by the United States" is a content-neutral provision. (37) The government made three arguments to convince the court the provision was content-neutral: (1) the provision simply draws a distinction between speakers (authorized debt collectors versus others), (2) the provision depends on if a caller is engaged in certain economic activities (owing debt to the government), and (3) if the provision is invalidated it could mean other statutes that regulate government debt are invalid. (38) The Supreme Court was not persuaded by any of the government's three arguments. The Court reasoned that (1) a speaker based distinction does not automatically make the distinction content-neutral, (2) the provision focuses on the caller speaking about a particular economic activity, not the economic activity itself, and (3) "courts have generally been able to distinguish impermissible content-based speech restrictions from traditional or...

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