Legal Definitions - What can states (and state-funded organizations) regulate?

States and state-funded organizations can regulate certain aspects of commercial email, but the extent of their regulation depends on how courts interpret state anti-spam regulations in relation to the CAN-SPAM Act.

For example, if a state university is also an "internet access service" provider, its anti-solicitation IT policy (which may prescribe the blocking of spam emails) may survive a preemption challenge. Additionally, state law claims for violation of consumer protection acts, deceptive content, and ISP claims for fraud and deception may also survive CAN-SPAM preemption analysis.

However, the CAN-SPAM Act preempts state law claims that differ from its provisions in ways that could create confusion about the law that applies to commercial email. For instance, if a state law required additional disclosures beyond what the CAN-SPAM Act mandates, it could be preempted.

Examples of state regulation of commercial email include:

• A state law that requires commercial emails to include a physical mailing address for the sender, in addition to the opt-out mechanism required by the CAN-SPAM Act. This law would likely be preempted because it goes beyond the requirements of the federal law.
• A state law that prohibits false or misleading subject lines in commercial emails. This law would likely survive preemption because it is consistent with the CAN-SPAM Act's prohibition on deceptive subject lines.

These examples illustrate how states can regulate certain aspects of commercial email, but their regulations must be consistent with the requirements of the CAN-SPAM Act to avoid preemption.