Citation[edit | edit source]

White Buffalo Ventures, LLC v. University of Texas at Austin, 420 F.3d 366 (5th Cir. 2005) (full-text), cert. denied, 546 U.S. 1091 (2006).

Factual Background[edit | edit source]

White Buffalo Ventures, a dating service, used a Freedom of Information Act request to obtain the email addresses of all of the University of Texas students. It then began sending a large amount of spam to those email addresses. After refusing to stop sending the emails, the university blocked its messages. The spammer sued the university under the first amendment and the federal CAN-SPAM Act.

Trial Court Proceedings[edit | edit source]

The trial court sided with the University. On the CAN-SPAM Act claim, the spammer claimed that the federal law preempted state law regarding spam, including the university's anti-spam policy. The trial court premised its holding:

on four propositions: (1) that the "purposes" of the CAN-SPAM Act, as determined by reference to the statute and the accompanying Senate Report, suggest that Congress did not mean to preempt technological approaches to combating spam; (2) that § 7707(c) specifically exempts UT from the scope of express preemption; (3) that § 7707(b)(2), which states that "[s]tate laws not specific to electronic mail, including State trespass, contract, or tort law" are not preempted, exempts UT's anti-spam policy because that policy is part of a larger set of anti-solicitation rules; and (4) that UT's ITS policy is not a "statute, regulation, or rule of a State or political subdivision of a state" and is therefore not preempted by § 7707(b)(1).

Appellate Court Proceedings[edit | edit source]

The Fifth Circuit Court of Appeals affirmed, holding that a university was within its rights to block spam sent by a dating service to thousands of student email users. However, the appellate court took its own approach to the question.

It made its decision on the very narrow ground that the CAN-SPAM Act is ambiguous and therefore there was a presumption against preemption of state law and regulations:

CAN-SPAM does not preempt the Regents' Rules, because it is in tension with plain text found elsewhere in the Act, and that tension triggers the presumption against preemption.

On the first amendment/free speech claim espoused by the spammer, the court found that the university's use of its anti-solicitation policy to block the plaintiff's unsolicited e-mails, which had drawn complaints from students, was a permissible regulation of commercial speech based on university's interest in protecting “user efficiency,” but the court held that the university's interest in “server efficiency” could not support challenged action (“The server efficiency interest is almost always coextensive with the user efficiency interest, and the fit is sufficient for the latter; but declaring server integrity to be a substantial interest without evidentiary substantiation might have unforeseen and undesirable ramifications in other online contexts”).

Discussion[edit | edit source]

The preemption provision was included in the CAN-SPAM Act primarily to block a California anti-spam law that was much more restrictive than Congress intended to enact under pressure from the Direct Marketing Association and other industry groups. It was not intended to interfere with an Internet service provider’s ability to regulate email traffic passing over its own system. The problem was that no one thought through the impact the preemption provision might have on a state-operated service provider (like the University of Texas) that was merely trying to assert the same level of control over its computer system that a private actor could assert without generating a lawsuit.

A bigger concern that comes out of this case is the ease with which a commercial organization can gain access to thousands of email addresses merely by filing a Freedom of Information Act request. With all of the problems of phishing, pharming and other frauds occurring through spam mailings, one would hope that legislatures would seriously consider exempting email addresses from FOIA requests.

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