Utah "Do Not E-Mail" Registry Faces Court Challenge

A trade group representing members of the adult entertainment industry Thursday asked a Utah court to nix a recent law prohibiting e-mail marketers from sending promotions for material considered harmful to minors to e-mail boxes that can be accessed by children under 18.

The trade association, "Free Speech Coalition," argues that Utah's law isn't valid under the federal Can-Spam statute--which supersedes state laws regulating commercial e-mail, except for laws relating to fraud and computer crimes. The group is seeking an order barring Utah from enforcing the law.

The Email Service Provider Coalition, which represents mainstream e-mail marketing companies, also opposes the Utah law and plans to seek permission to file a "friend of the court" brief, said Trevor Hughes, executive director of the Email Service Provider Coalition.

"While we don't necessarily share interests with the Free Speech Coalition, on this issue, we think they're right," Hughes said. "This law was designed to affect commercial e-mail messaging, and as such, it's preempted."

But Matthew Prince, CEO of Unspam--a company that contracts with Utah and Michigan to implement the law--said the law was valid and would hold up in court. "At the end of the day, the case is about whether or not people have the right to say no to these sorts of solicitations," said Prince, who also is an adjunct professor of law at John Marshall Law School in Chicago.

He added that states have always had the power to prevent marketers from sending pornography to children, and that Congress didn't mean to strip states of this ability with Can-Spam. "The intent of Congress wasn't to suddenly make it legal to send porn materials to children," Prince said.

The law, Utah's Child Protection Registry Act--which went into effect this summer--establishes a "do not e-mail" registry of children's e-mail addresses, compiled from information submitted by parents.

The Child Protection Registry Act bans marketers from sending e-mail promotions for material considered harmful or illegal for minors--including pornography, alcohol, cigarettes, or gambling--to any e-mail addresses on that registry.

Utah contracted with the company Unspam, which has offices in Lansing, Mich. and Park City, Utah, to maintain the registry. Unspam also will scrub e-mail lists submitted by marketers against its registry, for which marketers must pay a fee of $.0005 per e-mail address. Unspam keeps 80 percent of the fee, according to the Free Speech Coalition's complaint.

In its court papers, the Free Speech Coalition also argued that the law places an undue burden on interstate commerce, violates their members' free speech rights, and too vaguely defines the types of e-mails that are banned. For instance, the group argues, the law potentially encompasses e-mail ads for an event that's open to children but sponsored by a marketer such as a liquor company.

Other e-mail marketers also have criticized the law as too broad, saying it potentially applies to a wide array of mainstream businesses--such as, for example, hotels in chains that are remotely affiliated with casinos.

Utah is one of just two states to have established a "do not e-mail list" for children; the other is Michigan. Illinois currently is considering such a law.

The Federal Trade Commission has come out against "do not e-mail" registries, stating that such registries actually put youngsters at risk, while increasing legitimate e-mail marketers' costs. In an Oct. 25 letter to Illinois Congressman Angelo "Skip" Saviano, the FTC stated that creating these kinds of registries "may provide pedophiles and other dangerous persons with a list of contact points for Illinois children." The FTC also said the proposed registry might result in more spam, because of the possible "unintended consequence of providing spammers with a mechanism for verifying the validity of email addresses."

The Electronic Frontier Foundation also has criticized Utah's and Michigan's laws. "As a practical matter, these laws will actually not protect children," Kurt Opsahl, a staff attorney, told OnlineMediaDaily before the lawsuit was filed. "Any actual spammers out there are going to ignore these laws, much like they've ignored every other law."

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