CAN-Spam Preemption – NMP Skip to main content

CAN-Spam Preemption

Jonathan Foxx
Feb 06, 2015

Question: Our bank’s compliance officer has the view that CAN-SPAM requirements preempt all state laws that are similar to it. Are there any instances where state law trumps CAN-SPAM?

Answer: CAN-SPAM preempts any statute, regulation, or rule of a state, or even a political subdivision of a state, 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. [15 USC § 7707(b)(1)]

Thus, CAN-SPAM carves out an exception from preemption for state laws that govern the use of commercial email by prohibiting fraud or deception in messages or attachments.

CAN-SPAM does not preempt the applicability of (1) state laws that are not specific to electronic mail, including state trespass, contract or tort laws, or (2) state laws that relate to acts of fraud or computer crime. [15 USC § 7707(b)(2)]

State laws that are not specific to commercial email, but would apply to commercial email (together with other types of communication or activity), are not preempted; neither are state laws that address computer fraud or crime more generally.

Although not specific to mortgage banking, policies and procedures used by "Internet access services" to block spam are also protected from preemption. Internet access services’ policies and procedures are preempted from CAN-SPAM with respect to declining to transmit, route, relay, handle, or store certain types of electronic mail messages. [15 USC § 7707(c)]

Questions as to which state anti-spam laws are preempted, and to what extent such laws are preempted, are ultimately answered through the legal interpretation of courts. So far, the issue of CAN-SPAM preemption has been addressed by three Federal Circuit Courts of Appeals: the Fourth Circuit, the Fifth Circuit, and the Ninth Circuit.



Jonathan Foxx is president and managing director of Lenders Compliance Group, Brokers Compliance Group, Servicers Compliance Group and Vendors Compliance Group, national companies devoted to providing regulatory compliance advice and counsel to the mortgage industry. He may be contacted by phone at (516) 442-3456 or by e-mail at [email protected].

 

Published
Feb 06, 2015
CFPB Alters Threshold For Exempting Loans From Special Appraisal Requirements

The 2022 threshold for exempting loans from special appraisal requirements for higher-priced mortgage loans will increase from $27,200 to $28,500. 

Regulation and Compliance
Dec 02, 2021
Regulatory Review, Reformatted

The progress made to date with NMLS modernization

Regulation and Compliance
Dec 01, 2021
November Surprise: Fed May Accelerate Tapering

Chairman Powell tells Congress of concerns about inflation, COVID-19 variant’s effect on recovery.

Regulation and Compliance
Dec 01, 2021
FHFA's 2022 Conforming Loan Limit Maxes Out At Nearly $1M

Baseline limit for Fannie, Freddie increases to $647,200, but for 'high-cost areas' loan ceiling set at $970,800 for single-family homes.

Regulation and Compliance
Dec 01, 2021
Regulators Are Back In The Saddle

There’s not only a new sherriff in town, it’s a whole gang of them.

Regulation and Compliance
Nov 29, 2021
CFPB Seeks Insight On Creating A Fairer Mortgage Market

The Consumer Financial Protection Bureau has been actively looking to create a fairer mortgage market, free of discriminatory engagements. To do so, it issued a Request for Information to seek input on rules implementing the Home Mortgage Disclosure Act.

Regulation and Compliance
Nov 17, 2021