Ad Groups Seek To Overturn Utah E-Mail Law
- by Wendy Davis @wendyndavis, January 26, 2006
The six organizations--the American Advertising Federation, American Association of Advertising Agencies, Association of National Advertisers, Inc., Email Service Provider Coalition, Electronic Frontier Foundation, and Center for Democracy & Technology--earlier this month filed an application asking for permission to file a friend-of-the-court brief arguing that the law is invalid.
"The ultimate outcome of this case," states the group's court papers, is important "to all parties with a vested interest in free and unfettered availability of email as a communications channel."
The group hopes to particpate in a lawsuit filed in November by The Free Speech Coalition, a trade organization representing members of the adult entertainment industry. The suit seeks to invalidate a Utah law--the Child Protection Registry Act--that prohibits e-mail marketers from sending promotions for certain material to e-mail boxes that can be accessed by children under 18.
The law, which went into effect last 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.
The law's defenders say it will prevent purveyors of pornography, alcohol, and cigarettes, among other material, from marketing to children. The groups challenging the law argue that it impedes interstate commerce, violates free speech laws, and is too vague about which types of e-mails are banned. For instance, the opponents argue, 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.
The law's opponents also maintain that creating a "Do Not E-Mail" registry potentially harms minors by generating a database of children's e-mail addresses. Should that directory fall into the wrong hands, it could be used to target children, rather than protect them.
For e-mail marketers, the stakes are high. In court papers seeking permission to participate in the case, the organizations state they "are concerned the registry already is having an adverse impact on their members." The document refers to a Dec. 7 news release by Utah Attorney General Mark Shurtleff, which states that more than 200 e-mail senders have registered to comply with the law.
Dan Jaffe, executive vice president of the Association of National Advertisers, said in a statement that the law raises "serious concerns about privacy, online safety and inter-state communication." "Not only are we concerned that the legislation will do little to protect children from harmful images and messages, we fear it could actually worsen the problem, and in the process badly tangle the rules governing Internet communication," he stated.
Matthew Prince, CEO of Unspam, said he was "surprised" by the attempt of groups representing mainstream marketers to get involved in the case. "I'm surprised that organizations like the Association of National Advertisers--whose boards are made up of companies like Wal-Mart and LeapFrog, and who have been at the forefront of protecting the rights of individuals and parents to choose what material comes into their homes--would support a lawsuit by the pornography industry, arguing that they have the right to send whatever and whenever they want, and to whomever they want."
