Political Spam


At Adventures in Email Marketing, there is a post up this morning about political spam. It seems Anna discovered that providing her email address on her voter registration card not only results in political groups sending her email to that address, but also that political email does not have to follow the rules of CAN SPAM. The article ends with a few questions and makes some suggestions.

In general, why do politicians get such lax rules? Did the crafters of CAN-SPAM actually thing that candidates would (or could) ethically deal with this? The examples in my inbox show something different.

The flip answer is that the drafters of CAN SPAM are the political candidates and exempted themselves from the law because they did not want to have to follow it.
The less flip answer is that regulating political speech has less legal precedent than regulating commercial speech. Including non-commercial email in CAN SPAM would open the law up to a Constitutional challenge. By not including anything other than commercial speech, which the Supreme Court has ruled can be regulated by the government, there is much less chance that the law will be overturned as unconstitutional. In the 2005 final rule document, the FTC addresses the constitutionality of the law and provides references to case law supporting the role of government to regulate commercial speech (2005 Final rule, p 57 – 64 (link to PDF)).
There have been other reports of political spam this season. Ron Paul supporters used open proxies in China to send spam pushing their candidate. Campaigns of other major candidates have open signups on their web sites, allowing anyone to forge any email address into the form. Political advocacy groups have had similar problems in the past with not verifying subscriptions and therefore generating lots of complaints because the recipient never actually signed up for the mail.
I do have clients who send political mail. What I tell them is that the bar is set so low on CAN SPAM that there is no reason they should not comply with the law even though it does not apply to them. Allowing people to unsubscribe? Providing a physical postal address? Not forging headers? Meeting these conditions is trivial for any legitimate candidate and gives the recipients that warm fuzzy feeling that the candidate is acting in good faith.

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  • I couldn’t agree with you more: “Meeting these conditions is trivial for any legitimate candidate and gives the recipients that warm fuzzy feeling that the candidate is acting in good faith.”

  • I agree with you.
    However, I’m wondering whether actual political speech can be distinguished from fundraising emails. In the end I guess it’s all “political expression,” but maybe there’s room to split hairs there. (This doesn’t have much support in the cases . . . as far as I know, political speech/”speech” is broadly defined.)

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