Political Spam: You Can’t Unsubscribe
Anyone with an email address or cell phone is painfully familiar with spam messages, unsolicited e-mails, phone calls, and text messages, clogging our already crowded inboxes and resulting in constant notifications to our phones. While commercial spam tries to entice us to buy something year-round, every two years, voters must also suffer through an uptick of political advertisements during election season. Candidates are increasingly reliant on free mediums (such as email or social media advertising) and low-cost mediums (such as phone calls and text messages) to get their message across to voters and potential donors. As a result, voters are inundated with spam messages they cannot opt-out of or avoid, and Congress is likely powerless to stop it.
Commercial vs Noncommercial Spam
Congress recognizes spam messages are a problem and has determined that, “[t]he convenience and efficacy of electronic mail are threatened by the extremely rapid growth in the volume of unsolicited commercial electronic mail.”1 To provide inboxes with some relief, commercial e-mail spam is federally regulated by the CAN-SPAM Act of 2003.2 The CAN-SPAM Act provides a list of five practices that commercial senders must abide by including: prohibition of sending false or misleading transmission information, prohibition of deceptive subject headings, prohibition of continued transmission after objection, inclusion of a return address or comparable mechanism, and inclusion of an identifier, opt-out, and physical address in the commercial e-mail messages. This gives the email recipient a chance to limit additional contact from the commercial sender.
But what about non-commercial spam? The requirements and regulations that commercial senders must abide by do not apply to e-mail messages of non-commercial senders, which includes political messages and non-profit messages, or any message in which the primary purpose is not a commercial advertisement or promotion of a commercial product or service. Meaning, politicians sending you political e-mails are not required to provide you with an opt-out option, or a clear subject heading. This is because political speech is held in the highest regard and is one of the most protected forms of speech in the United States. As the Supreme Court explained, “[t]he First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office.”3 Because political speech is central to the First Amendment freedom of speech, Congress has been hesitant to take any actions curtailing campaign speech and may even be powerless to enact any meaningful restrictions. (And the cynic would argue elected officials have no appetite to limit their own ability to reach voters and donors.)
Content Neutral Restrictions on Political Speech
The government can impose “content-neutral” restrictions in certain situations, or restrictions that apply regardless of the message being conveyed. One example of a “content neutral” restriction that has been permitted by the courts is a restriction on auto-dialing residential home telephones and playing prerecorded messages or sending out automated text messages.4 This does not prevent a political campaign from making unsolicited calls or texts, but it does make it more costly and time-consuming to do so.
Although constitutionally permitted, not every state has enacted such restrictions. In Michigan, commercial vendors are not permitted to robocall individuals without prior consent, but political campaigns and charitable organizations are exempt from any such restrictions. They can robocall or send out an automated text message to a voter without the voter’s prior consent or even if the voter previously opted out.
It is an open question as to whether similar restrictions could be applied to e-mail spam. While there are some comparisons to be drawn between a private, home telephone and a private, personal e-mail, the similarities are limited. E-mail can be less invasive because you can choose when to look at it and when not to; however, with the prevalence of email push-notifications on smartphones, this may not necessarily be the case anymore. Many e-mail providers have spam filters that might catch political e-mails, and most e-mail providers allow users to “block” or mark certain senders as spam. This is one of the only ways that individuals can filter out political spam.
Future Relief?
Some think that the regulation of political spam will not come from the government, instead, it will come from markets.5 The spam filter feature’s benefit with respect to political e-mails may be less effective depending on the outcome of a pending Federal Election Commission (FEC) Advisory Opinion. Google has recently requested an Advisory Opinion from the FEC regarding a pilot program they are considering launching which would allow “authorized candidate committees, political party committees, and leadership political action committees that are registered with the Federal Election Commission during the 2022 election cycle and that meet objective criteria” to get around spam filters that they would otherwise be subject to.6 In other words, if a political committee meets Google’s standards, then they will be permitted to bypass spam filters and infiltrate individuals’ e-mail inboxes. On its face, this seems to foreshadow increasingly crowded inboxes and bombardment with political email; however, this is not necessarily true. According to Google’s Request to the FEC, the pilot participants will be required to include a “one-click unsubscribe button” in all the messages, which, is not required of political emails typically.7 The FEC has not yet given a response to this Advisory Opinion Request.
It is clear that the landscape surrounding political spam is changing and is something to watch closely. Voters, especially in states like Michigan which permit robocalling, have limited options to combat the deluge of political spam in the lead up to elections. Until either Congress, the legislature, or tech companies act, expect to continue to receive bulk-emails, calls, and texts from political campaigns.
[1] 15 U.S.C. § 7701(2).
[2] 15 U.S.C. §§ 7701–13; 18 U.S.C. § 1037.
[3] Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 339, 130 S. Ct. 876, 898, 175 L. Ed. 2d 753 (2010) quoting (Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 223, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989)).
[4] See Van Bergen v. Minnesota, 59 F.3d 154.
[5] Mark Sweet, Political E-Mail: Protected Speech or Unwelcome Spam?, Duke L. & Tech. Rev., January 14 2003.
[6] https://www.fec.gov/files/legal/aos/2022-14/202214R_1.pdf.
[7] Id.
Categories: Alerts and Updates, Candidates and Committees, News
Posted by: Natalie Schmid (Summer Associate)
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