State Laws Relating to Unsolicited Commercial or Bulk E-mail (SPAM)

Thirty-seven states have laws regulating unsolicited electronic mail advertising. The majority of these state laws target commercial or fraudulent electronic mail; a smaller number of state laws apply to unsolicited "bulk" e-mail (e.g., Virginia's law--note recent Virginia Supreme Court decision).  Most state anti-spam laws prohibit misrepresenting or falsifying the origin of or the routing information on messages; using an Internet address of a third party without permission, or including misleading information in the subject line of a message. Some states also prohibit the sale or distribution of software that is designed solely to falsify or forge the point of origin of or the routing information on e-mail messages.

Most other aspects of state laws, such as labeling requirements for adult-oriented advertising, are preempted by the federal CAN-SPAM Act of 2003. The act preempts any 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 in any portion of a commercial electronic mail message or information attached thereto." The act prohibits fraudulent and deceptive commercial e-mail messages and requires senders to include information allowing recipients to opt-out of receiving further messages.

The Federal Trade Commission has adopted a rule, effective May 19, 2004, requiring spam that contains sexually oriented material to include the warning “SEXUALLY-EXPLICIT:” in the subject line.

See also Unsolicited Commercial E-Mail.

NCSL Contact: Pam Greenberg, NCSL Denver, pam.greenberg@ncsl.org