Cecily Zamora
During election campaigns, voters are inundated with political advertisements and spam messages from candidates and parties. While commercial spam is federally regulated by the CAN-SPAM Act of 2003, political parties are exempt from many spam regulations. This is because the CAN-SPAM Act primarily targets commercial emails and does not strictly apply to political emails. Political parties are legally allowed to send unsolicited messages during elections, and it is protected by the Constitution as freedom of political communication. However, this has led to concerns about the inundation of spam messages that voters cannot opt out of or avoid.
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What You'll Learn
Political parties are exempt from spam regulations
In the United States, the CAN-SPAM Act of 2003 is the first national law to set standards for commercial emails. It defines a ""commercial electronic mail message" as "any electronic mail message whose primary purpose is the commercial advertisement or promotion of a commercial product or service". This definition explicitly excludes purely political and religious emails, which also have stronger First Amendment protection. While the CAN-SPAM Act does not ban spam emails outright, it imposes laws prohibiting deceptive marketing methods with "materially false or misleading" headings.
The exemption of political parties from spam regulations in Australia and the United States is based on the argument of facilitating freedom of political communication. For example, in Australia, the High Court has stated that this freedom is necessary to support informed electoral choice. However, the increasing use of technology and the rise of data brokers have led to concerns about the vulnerability of voters to invasive messaging and potential misinformation.
While political parties are exempt from specific spam regulations, they are still subject to other laws and ethical considerations. For instance, in Australia, the AEC has warned about misleading postal vote applications being sent by parties via SMS. Additionally, the Privacy Act governs how organisations collect, use, and disclose personal information. While it contains a carve-out for political parties, it requires organisations to inform individuals when and why they are collecting their personal information and the purposes for which it will be used.
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Google's pilot program to allow political committees to bypass spam filters
In 2022, Google proposed a pilot program that would allow certain political committees to bypass Gmail's spam filters. This came in response to pressure from Republicans, who alleged that Google's algorithm unfairly sent conservative fundraising emails to spam. The Federal Election Commission (FEC) approved the pilot, which would enable verified campaigns, political party committees, and leadership PACs to send fundraising emails straight to users' inboxes.
Google's request to the FEC stated that participants in the pilot would need to include a one-click unsubscribe button in their messages. However, this requirement was not mandatory for political emails outside of the program. Google's proposal aimed to address concerns of bias against conservative emails, but it faced opposition from those worried about the potential for misleading political advertising and the inundation of political spam.
The pilot program was open for political campaigns to register and prove that they weren't spamming. Once they satisfied Google's criteria, they could bypass Gmail's spam filters. Notably, the Republican National Committee (RNC), which had initially criticized Google, chose not to participate in the program. Over 100 campaigns did take part, and the program concluded in January 2023.
While the pilot program has ended, the debate around political spam emails continues. Many individuals have expressed frustration with the influx of unsolicited political messages during election seasons. However, Congress's power to regulate such emails is limited, and the CAN-SPAM Act of 2003, which regulates commercial emails, does not apply to purely political messages. As a result, voters often feel powerless to stop the bombardment of political spam in their inboxes.
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CAN-SPAM Act's definition of a commercial electronic mail message
The CAN-SPAM Act applies to all commercial messages, including emails, regardless of whether they are directed to consumers or businesses. The Federal Trade Commission (FTC) defines a "commercial message" as "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service". This means that the law covers all email – for example, a message to former customers announcing a new product line – and makes no exception for business-to-business email.
The CAN-SPAM Act requires that commercial emails contain certain disclosures and provide recipients with an opportunity to opt out of future commercial emails. Emails subject to the law must follow rules regarding subject lines, disclosures, and headers. The law establishes the right of recipients to request removal from email lists and details the penalties for businesses that violate the law. Each separate email in violation of the CAN-SPAM Act is subject to penalties of up to $53,088, so non-compliance can be costly.
To comply with the CAN-SPAM Act, businesses must include a physical address for the business somewhere within the message and provide an option for recipients to unsubscribe. They must also ensure accuracy in the email's header information, including the originating domain name and email address as well as the "From", "To", and "Reply-To" fields. The law makes clear that even if a company is hired to handle email marketing, the company whose product is being promoted in the message may still be held legally responsible.
Messages with sexually oriented material must include the warning "SEXUALLY-EXPLICIT:" at the beginning of the subject line. In addition, the rule requires the electronic equivalent of a "brown paper wrapper" in the body of the message. When a recipient opens the message, the only things that may be viewable on the recipient's screen are: the same information required in any other commercial email (a disclosure that the message is an ad, the sender's physical postal address, and the procedure for how recipients can opt out of receiving messages from this sender in the future). No graphics are allowed on the "brown paper wrapper".
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CAN-SPAM Act's opt-out requirements
The CAN-SPAM Act is a federal regulation that sets the rules for commercial messages, including emails. It gives people the right to opt out of receiving email messages from businesses at any time. The Act outlines several requirements for commercial emails, including the provision of a clear and straightforward way for recipients to unsubscribe from receiving future emails.
The opt-out mechanism must be clear and conspicuous, and it should be easy for recipients to choose not to receive further communications. A practical way to implement this is to include an “unsubscribe" link in the email or message, along with a statement informing the user of the option to opt out. This statement could be something like: "You are receiving this business communication from [Business Name] as you have expressed your interest in [our products and services]. If you no longer wish to receive these communications, you can unsubscribe by clicking here".
The CAN-SPAM Act does not require explicit or implicit consent before sending the message. However, it is mandatory to provide users with a clear means of opting out of further contact. Senders must promptly honour recipients' requests to opt out and refrain from charging a fee or requiring the recipient to provide any personally identifiable information other than their email address. Under the Act, senders have up to 10 business days to process opt-out requests, and the opt-out system must be able to handle requests for at least 30 days after the email is sent.
Additionally, senders must ensure that their commercial electronic mail messages comply with the CAN-SPAM Act. This includes providing accurate information about the sender and not engaging in deceptive practices. The content of the message should be accurately reflected in the header and subject line, and the sender's identity and postal address must be provided.
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CAN-SPAM Act's rules for commercial email
The Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003 is a law that establishes the first national standards for the sending of commercial emails in the United States. The CAN-SPAM Act sets out the following rules for commercial emails:
- Prohibition of sending false or misleading transmission information: The "From," "To," "Reply-to," and routing information—including the originating domain name and email address—must be accurate and identify the person or business that initiated the message.
- Prohibition of deceptive subject headings: The subject line must accurately reflect the content of the message and must not be materially false or misleading.
- Inclusion of a return address or comparable mechanism: The sender's physical postal address must be included, which can be a current street address, a post office box, or a private mailbox registered with a commercial mail-receiving agency.
- Inclusion of an identifier, opt-out, and physical address in the commercial email messages: Each message must include a clear explanation of how to opt out of future emails, and the sender cannot require the recipient to pay a fee, provide any personally identifying information beyond an email address, or take any steps other than sending a reply email or visiting a single webpage to opt out.
- Prohibition of continued transmission after objection: Once a recipient has opted out of receiving emails, the sender cannot sell or transfer their email address, even in the form of a mailing list, and must stop sending emails to that recipient.
The CAN-SPAM Act is enforced by the Federal Trade Commission (FTC), which has issued additional rules under the Act, such as requiring messages with sexually oriented material to include a warning at the beginning of the subject line and to be formatted with the electronic equivalent of a "brown paper wrapper." The CAN-SPAM Act also preempts state anti-spam laws that do not deal with false or deceptive activity.
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