Define: The U.S. Legal Context: Privacy, Commercial Solicitation, And Commercial Speech

In the United States, there are various laws in place to safeguard individuals’ privacy in different scenarios. However, there is no overarching law specifically dedicated to privacy. Some laws necessitate individuals to provide consent before their information can be shared, while others grant individuals the right to refuse after being informed about the intended use of their information. The CAN-SPAM Act of 2003 permits businesses to send emails to individuals unless they explicitly decline. Additionally, the U.S. has regulations prohibiting companies from making unsolicited sales calls to individuals, and individuals have the option to include their phone numbers on a “do-not-call” list. While the U.S. Constitution protects the freedom to discuss business matters, the government still has the authority to establish regulations to safeguard individuals from false or harmful information.

The U.S. legal approach to privacy and technology for commercial solicitation is demonstrated through the CAN-SPAM Act of 2003. This Act aligns with the U.S. statutory approach to privacy, which is context-specific and typically follows an “opt-out” method. This means that commercial entities can collect and share information unless individuals explicitly choose to opt-out. Additionally, the U.S. provides constitutional protection for commercial speech under the First Amendment, although it offers less protection compared to other forms of speech. Instead of a general federal privacy statute, the U.S. has specific laws for different situations. For instance, HIPAA and COPPA adopt an “opt-in” approach to privacy for health-related and children’s information, while the Gramm-Leach-Bliley Act follows an “opt-out” approach for financial institutions. Similarly, the CAN-SPAM Act of 2003 adopts an “opt-out” approach for commercial email. The Telephone Consumer Protection Act and the Telemarketing and Consumer Fraud and Abuse Prevention Act regulate telemarketing and telephonic commercial solicitation, imposing restrictions on certain technologies and establishing a “do-not-call” registry. The CAN-SPAM Act of 2003 follows a similar pattern in regulating commercial email and spam. While the First Amendment protects commercial speech, it offers less protection compared to other forms of speech. Regulations can limit commercial speech as long as they serve a significant state objective. Unlawful or deceptive commercial speech is not protected by the First Amendment. The CAN-SPAM Act of 2003 permits companies to send commercial emails to individuals unless they explicitly choose to opt-out. Consequently, individuals may receive unwanted emails unless they take action to prevent them. However, the Act also mandates companies to include an opt-out mechanism in their emails and prohibits misleading subject lines and false headers. This example illustrates the U.S. statutory approach to privacy, which is context-specific and often based on an “opt-out” method. It also demonstrates how the First Amendment allows for some regulation of commercial speech, albeit with less protection compared to other forms of speech.

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This glossary post was last updated: 17th April 2024.