A federal district court in Michigan recently held that the federal CAN-SPAM Act preempts Michigan’s anti-spam law.  Unlike the federal law, Michigan’s statute offers individuals who receive unsolicited commercial email, or “spam,” a private cause of action.  The decision, by Judge Janet T. Neff of the Western District of Michigan in Hafke v. Rossdale Group, LLC, is one of only a few court opinions construing the scope of state laws preempted by the federal CAN-SPAM Act.

The federal Controlling the Assault of Non-Solicited Pornography And Marketing Act (or CAN-SPAM Act), enacted in 2003, regulates the transmission of spam email.  For violations meeting specified criteria, it provides for criminal penalties and permits civil enforcement by the Federal Trade Commission and other federal agencies, Internet Service Providers, and state attorneys general.  It does not, however, permit individuals who have received unwanted email to bring suit. 

Therefore, those who have wished to bring suit for receiving unwanted spam have looked to states’ anti-spam laws, such as that of Michigan.  However, CAN-SPAM contains an express “preemption” provision, meaning it specifies the circumstances under which states may or may not regulate the same subject matter as the federal statute.  CAN-SPAM states that it supersedes state law “that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception.”  It also states that it does not preempt state laws “that are not specific to electronic mail” or those that “relate to acts of fraud or computer crime.”

In Hafke, the court had to interpret whether CAN-SPAM preempted the Michigan anti-spam law.  To reach a decision, the judge first reviewed the handful of prior cases on the scope of CAN-SPAM’s preemption.  Those cases, relying on CAN-SPAM’s preservation of state laws that prohibit “falsity or deception,” have differentiated state laws regulating “base error” from state laws regulating tortious conduct or material misrepresentations — the courts have held that CAN-SPAM preempts the first kind of laws but not the second.  Building on those decisions, the judge held that because the Michigan law does not by its text require falsity or deception and because the plaintiff alleged only “technical” violations, CAN-SPAM barred the plaintiff’s claim.