Spam,spyware,and Free Speech: What Is The Appropriate Role Of The Stares In Regulating Internet Marketing?

摘要

Interactive Web sites subject Web vendors to state-by-state jurisdiction in the courts for traditional consumer claims.76 The same state-by-state enforcement should be the risk that spyware vendors and spammers face, too. Pervasive federal preemption of these claims is contrary to long-standing approaches to consumer protection. When the federal government saw the huge popularity of state do-not-call laws, it abandoned its long-standing resistance to a national do-not-call list but still permitted the states to retain their regulatory authority. A similar approach can be taken with spyware and spam regulation. Research on the best notice protocols should drive federal legislation, which would be enforceable by the states. A bright line defining "spyware" in a new federal law should also rely on standards in current state spyware-specific laws against changing computer settings and uninstall capabilities, as well as research into the latest programming tactics. States should be permitted to continue their traditional role of consumer protection over personal property, including the computer and personal data. Violations of federal mandates should trigger traditional state law protection like small claims private causes of action for damages and attorney general actions for widespread abuse, akin to the protections provided in the Telephone Consumer Protection Act of 1991 regarding unwanted telemarketing calls. Finally, overreaching approaches like Utah's original spyware law and Alaska's anti pop-up ad regulations can quickly be resolved by the courts using intellectual property preemption rules and the First Amendment.