The head of the company contracted by both Utah and Michigan to scrub marketing email lists for addresses that have registered with the states’ “do-not-email” programs says the adult entertainment industry is fighting to keep its grip on an effective delivery system for cyber-porn. That’s the reason the Free Speech Coalition filed suit against Utah’s Child Protection Registry Act, he says, and he doesn’t expect the FSC’s arguments to hold up in court.
“The argument that this law is somehow infringing on the free speech rights of legitimate email marketers is absurd,” says Matthew Prince, chief executive of Unspam. “This is a reasonable effort to protect minors from materials society has always deemed harmful to kids. The senders are not barred from sending their emails to adults—just those addresses registered as accessible to children.”
Prince continues, “Online pornography is a billion-dollar-per-year industry, and email is becoming the delivery system of choice for porn purveyors. One of the porn industry’s major marketing tools for making that enormous profit is email, and many of the emails they send are hitting the in-boxes of children and teens.”
Utah’s Child Protection Registry Act went into effect July 15. Its alleged purpose is to protect minors from receiving email messages that promote products or services they’re too young to purchase or contain material that is “harmful to minors” as defined by Utah law. The law allows parents and others to register in a central database any email addresses that belong to or can be accessed by minors, and mass-email lists must be scrubbed against addresses in that database at a cost of 5 cents per address. Marketers who send messages to email addresses that have been on the list for more than 30 days face criminal, administrative, and civil penalties, including fines and jail time for each infraction.
In November, the FSC, the trade association for the adult industry, challenged the law in federal district court. According to the complaint, the so-called “do-not-email” law conflicts with the federal CAN-SPAM Act, violates portions of the commerce clause of the U.S. Constitution, and poses serious threats to constitutionally guaranteed speech.
“The law…is similar to the [federal] do-not-call list,” explains Prince. “Parents simply log on to a website run by the state in order to register the emails they wish protected. The service is completely free for parents and schools seeking protection, and companies that send adult-oriented emails are required by law to delete all registered addresses from their mailing lists.”
He notes that since the law went into effect, thousands of parents and scores of public and private schools have registered email addresses and entire domains they wish to be protected.
It is his contention that the FSC’s arguments are not likely to hold up in court. He predicts the court ultimately will rule in favor of parents protecting their children through Utah’s registry law.
“It’s clear that at the heart of the Utah lawsuit is an unwillingness on the part of the adult entertainment industry to take reasonable measures to keep pornographic emails from reaching children,” said Prince. “We feel confident the court will agree.”
So, apparently, does Utah Attorney General Mark Shurtleff, who on Dec. 7 filed a motion to dismiss the FSC’s suit.
FSC Communications Director Tom Hymes thinks perhaps Prince “doth protest too much.”
“He stands to make a lot of money off [the registry],” Hymes says. “Who is he to point fingers at [the adult industry]?”
Saying that Prince’s position is just “scare mongering” that is based on unsubstantiated statistics and emotional arguments, Hymes points out that the adult industry isn’t the only group guilty of vigorous commercial email marketing. Prince completely ignores that other industries are just as concerned about and directly impacted by Utah’s registry law, Hymes says. As broadly as the law is written, he notes, all sorts of email senders could become victims of the penalties the law prescribes.
“Pure political speech about issues like abortion can be caught up in this,” he warns. “It’s not far-fetched to think enemies might use it against each other.”
He continues, “[The FSC does] not support people who send illegal spam. We oppose the registry because it’s faulty.
“Frankly, I’m surprised [registry supporters] haven’t come up with a more convincing argument” than that the adult industry is composed of unrepentant spammers who will do anything to make a buck, Hymes says. “This one is offensive.”
Michigan’s similar registry act remains unimplemented due to legislative reconsideration. According to FSC board member and attorney Reed Lee, the FSC also will file suit in Michigan if and when that state puts its law into use.
