Email marketing 777

The Controlling the Assault of Non Solicited Pornography and Marketing Act of 2003, known as the CAN-SPAM Act, was passed by Congress and became effective in January of 2004. It established a framework for federal regulation of unsolicited commercial email. It covers email the primary purpose of which is advertising or promoting a commercial product or service. It exempts email that facilitates an agreed upon transaction or updates a customer in an existing business relationship. It bans false or misleading header information, prohibits deceptive subject lines, requires that recipients be given an opt-out method and requires commercial email to be identified as an advertisement and include the sender’s valid physical postal address. The Federal Trade Commission is authorized to enforce the Act, and the Department of Justice has the authority to enforce its criminal sanctions.

Assume that a company which has regularly, and successfully, marketed their products through email challenges the constitutionality of this law. Their argument is that the law exceeds the authority given to Congress to regulate under the Commerce Clause. Discuss the merits of that argument. In your discussion, identify the scope of Congress’ authority under the commerce clause. In general, what type of activity may Congress regulate? (5 points). Also, discuss whether this particular regulation a valid exercise of Congress’ power. (15 points) Then, assume that the state of Tennessee passes a law regulating the same type of activity, but which, in addition to those prohibitions contained in the federal law, also prohibits email updates to customers in an existing business relationship. Identify the constitutional source of the state’s power to pass such a regulation, and discuss whether this is unconstitutional because it violates either the “dormant” commerce clause or the supremacy clause. (5 points)
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