Michigan Attorney General Michael Cox has charged two companies, RR Media of Cathedral City, CA and Data Stream Group Inc. of Bonita Springs, FL, with violation of the state's Children's Protection Registry Act, which went into effect on July 1, 2005. These are the first such charges to have been filed under the new law.
The law is similar to the Child Protection Registry Act passed by the state of Utah in 2004, and which is currently under injunction in a lawsuit filed by the Free Speech Coalition, which claims that the Utah act is unconstitutional and also violates federal law, namely the CAN-SPAM Act passed by Congress in 2003.
It is perhaps notable that neither of the defendants in Michigan appear to be adult-oriented businesses. According to a Business Week story in 2004, Data Stream Group solicits for telephone service providers, while RR Media appears to be involved in online marketing of appliances. However, AVN.com has been unable to confirm the full business interests of either company. Still, if those companies are entirely non-adult, the choice to prosecute them may have been made partly on the basis that they would not likely be Free Speech Coalition members, and therefore less likely to mount a challenge to the law similar to FSC's Utah suit.
However, FSC executive director Michelle Freridge has said that she would be happy to provide the Michigan defendants with information as to FSC's pending litigation, some of which can currently be viewed online at www.freespeechcoalition.com.
While it is unclear at press time exactly how Michigan's e-mail registry list works, according to a press release from the state attorney general, such list is administered by the Michigan Public Service Commission, whereas Utah has employed an outside, private contractor, Unspam Registry Services, to administer its registry and, for a fee, vet potential e-mail lists from Internet marketers. While Michigan's law permits a fee to be charged for similar service, it is unclear whether the Michigan Public Service Commission actually does charge such a fee, or even whether that commission has hired a contractor to administer its list, and if so, whether that contractor charges a fee.
"Spamming is a huge problem with no easy solution," Cox said in a press release. "The registry law is an attempt by our State to find an effective way to protect children from the most offensive variety of spam. I hope our criminal and civil actions send a message to spammers peddling harmful products: Stay away from our kids."
According to Cox, the law "prohibits sending e-mail to a registered address with content in the e-mail that advertises anything a minor is prohibited from doing, viewing, or using" – a prohibition which, in the Utah suit, FSC has argued is unconstitutionally overbroad, even as applies to minors. It also remains unclear what harms, if any, the e-mails from Data Stream and RR Media are claimed to have (potentially) caused. However, Michigan has also sought injunctions against the two companies to attempt to prevent them from committing "further violations and other statutory penalties."
Violation of the act is considered a "computer crime" under Michigan law, and besides the criminal penalties, which include fines of up to $10,000 per offense, the law permits list registrants and/or their parents or guardians to bring civil actions against the alleged violator, under which the plaintiff(s) could recover actual damages and attorney fees, or as much as $250,000 in punitive damages for each day that the violation occurs.
