White Buffalo – the 5th Circuit hits on LonghornSingles.com

By Ethan Ackerman

or “What happens when the Internet service provider IS the state?”

White Buffalo v. U.Texas, Austin, No. 04-50362-CV0 (5th Circuit, August 2nd, 2005)

This two-part post it going to take a rather detailed look at the 5th Circuit’s opinion in this unique case, discussing in Part One (below) the CAN-SPAM Act and how the court applies it in this case. Part Two (post coming soon) will discuss additional complications when a government agency or entity (in this case the University of Texas) adopts a filtering policy or blocks email.

Part One

The 5th Circuit won the race to be the first federal Appeals Court to construe the CAN-SPAM Act’s state law preemption clause. Too bad it didn’t really need to…


Background

White Buffalo is the operator of several online dating sites, including LonghornSingles.com – targeted at the apparently lucrative dating scene for university students. White Buffalo sued the University after it filtered White Buffalo’s bulk email advertising LonghornSingles.com and blocked incoming mail from White Buffalo’s IP addresses. After White Buffalo got a temporary injunction against the University, the District Court subsequently granted the University’s motion for summary judgment, finding that UT’s spam policy wasn’t preempted by CAN-SPAM and didn’t run afoul of the 1st Amendment. The 5th Circuit affirmed, but took the opportunity to clarify as well.

White Buffalo’s Argument

White Buffalo claimed CAN-SPAM’s labeling, anti-fraud, and opt-out requirements for sending spam, combined with its state law preemptions, comprehensively regulated spam. White Buffalo alleged that U.Texas’s spam filtering policy was a state law or rule trying to regulate spam, and therefore preempted under CAN-SPAM. In effect, White Buffalo argued, CAN-SPAM required U.Texas to drop its now-preempted filtering rules and let White Buffalo’s CAN-SPAM-compliant mail through.

U.Texas apparently acknowledged that White Buffalo’s email was CAN-SPAM-compliant, but responded with a kitchen sink of arguments; CAN-SPAM regulated only ‘sending’ spam and U.Texas’s policy only filtered ‘received’ emails, so CAN-SPAM didn’t apply; U.Texas wasn’t really part of the state of Texas, so its filtering rules weren’t really preempted; and that CAN-SPAM had an ISP filtering exception that let the University filter.

Thoughts

The opinion is most interesting because of the unique situation U.Texas is in – it is an ISP AND an arm of the state of Texas, subject to CAN-SPAM’s state preemption provisions and all the additional protections and laws state government entities are subject to, including the 1st Amendment. It is also an Internet service provider for (quite a few) faculty, staff, students and alumni. This means that if U.Texas meets the definition of an Internet service provider in the Act, the Act’s exceptions dealing with ISP filtering apply as well.

Unfortunately, this seems to have been too confusing for the Court to comfortably handle, as the opinion goes through a considerable amount of preemption doctrine analysis, finds “textual ambiguity” and “default presumptions against preemption,” resorts to drawing Venn diagrams, and generally makes long work out of what should be a simple construction of another part of the CAN-SPAM statute. At the end of it all, the 5th Circuit holds that since it finds conflict in the terms of the statute, the strong presumption against preemption should apply, and therefore U.Texas’s filtering rules are not preempted.

Interestingly enough, it seems that after all these contortions, the end result is the same as a simple reading of the statute – CAN-SPAM doesn’t regulate or preempt U.Texas’s filtering policies.

CAN-SPAM and state law preemption.

The CAN-SPAM Act is like many other pieces of federal legislation, cobbled together from several bills and amendments, in this case over several years, and heavily negotiated between the House of Representatives and the Senate. The Act has specialized definitions, some borrowed from other Acts, and has provisions preempting most state laws regulating spam. A quick peek at the Act’s legislative status history reveals 6 versions in its final year alone, not counting amendments. Complex histories like this often means definitions don’t track well and provisions aren’t clear, but in U.Texas’ case, the language in the Act holds up pretty well.

CAN-SPAM was passed in part to provide uniformity to US spam laws that differed from state to state – the portion of the official Senate Committee Report discussing state law preemption refers to “this bill’s creation of one national standard…” to prevent a sender’s possible confusion of having “…to determine with which State law to comply.”

To that end, CAN-SPAM preempts almost all state law regulating spam, unless the law only “prohibits falsity or deception,” or isn’t specific to email. The preemption provisions of the act are all helpfully set out in Section 8. Section 8 also has an important statement on ISP filtering…

CAN-SPAM’s categorical inapplicability to ISP filtering

As the sponsors and supporters of CAN-SPAM pointed out rather frequently, the Act was supposed to be a legal compliment to, not a replacement for, technological measures used to control spam. To that end, almost from the beginning the Act had an exception removing spam filtering from the scope of the Act. This exception shows up as Section 8c of the law as finally passed. It says “Nothing in this Act shall be construed to have any effect on the lawfulness or unlawfulness, under any other provision of law, of a provider of Internet access service['s]“ adoption of a filtering policy.

The official Senate Committee Report again seems to reinforce the plain meaning, stating, “Section 8(c) would clarify that this legislation would have no impact on the lawfulness of ISPs’ efforts to filter or block e-mails traversing their systems.”

Housekeeping details: An ISP, or not?

Covering all the bases, the 5th Circuit also parses CAN-SPAM’s definition of an ISP, called an Internet Access Provider in the statute, to make sure that the filtering provision does apply to U.Texas, and finds that the University is clearly within the definition in the Act.

Conclusion

So then that’s it, hands off, sink or swim on your own, CAN-SPAM doesn’t address ISP filtering – which means it definitely doesn’t prohibit it like White Buffalo claims.

What’s left?

If U.Texas’s filtering is outside of the scope of CAN-SPAM, what’s left? White Buffalo possibly has several 1st Amendment claims (which I’ll talk about soon.)