A new law that took effect in July in both Utah and Michigan could pose a serious legal threat to businesses and organizations that send email newsletters containing links to sites that are in any way associated with adult or other “objectionable” content.
The Children’s Protection Registry Act, which took effect July 1 in both states, was sponsored by former Utah Representative Michael R. Styler (who has gone on record as saying, “I believe [spammers] really are targeting our children”) as a way of preventing unwanted and inappropriate email from being sent to minors. It functions like a “do-not-call” list similar to ones created to prevent telemarketers from contacting households.
According to Paul Murphy, spokesman for the Utah Attorney General’s office, the Registry was created “because there were some state representatives, and actually people within the attorney general’s office, who were concerned about the amount of pornographic material that was going directly to children, and they wanted to find something they could do to protect their kids, like you could do with a V-chip on television.” Murphy adds that the software, created by Utah-based Unspam Technologies, “protects the identity of the children, [and] at the same time protects them from getting stuff that they don’t want and that parents certainly don’t want their children to receive.”
If an email address appears on the registry, commercial retailers and other companies are prohibited from sending emails to it that contain advertising or links to advertising for products or services prohibited to a minor, such as alcohol, tobacco, gambling, prescription drugs, or adult-related material. E-marketing companies will have to check their lists against the registry every 30 days in order to comply with the new law and pay (in Utah) half of one cent for every name on the e-marketer’s list. Those who do not comply are subject to strict state-imposed fines of up to $30,000 or prison time of up to three years, or both.
Perhaps most alarming about the laws is that they are not limited to companies in Utah and Michigan, and are wholly enforceable upon anyone who sends inappropriate emails to those who live in either state. In addition, the laws do not exempt businesses that send emails to addresses that were voluntarily given. These provisions are bringing the act under fire from many retailers and attorneys who challenge that the laws are unconstitutional.
“The laws are written extremely broadly on their face, and they go way beyond spam and anything else that would be considered adult content,” says Steve Simpson, a senior attorney with the Washington D.C.-based Institute for Justice, which challenges unconstitutional laws pertaining to free speech and economic liberty. “They impact a whole lot of other businesses and types of advertising in emails.
“The fundamental problem is that the laws would, in effect, require everybody in the country who wants to send out an email to people that might either potentially have adult content or contain an advertisement of a service or a product that a minor would be prohibited from buying to worry about the laws in Michigan and Utah whether they [intend to] send emails to people in Michigan or Utah or not,” Simpson continues. “In effect, Michigan and Utah are trying to regulate e-commerce and communications everywhere in the country.
“The second problem, equally bad, is that there’s no exemption from liability under these laws if you have a pre-existing relationship with the person to whom you’re sending the email,” Simpson adds. “E-marketers generally only send emails to people who have already given their email addresses to them, meaning they basically say, ‘Put me on your email list.’ That’s not a defense to liability under these acts. The bottom line is, if you send an email to somebody with their email address on this registry – whether there’s a child in the house or not – and you haven’t checked the registry first, you’re liable.”
Murphy concedes that there may be certain flaws in the act. When it is pointed out that somebody could, for malicious purposes, add their email address to the registry in order to get a particular person or e-marketer in trouble, Murphy says, “That would probably be a good defense, if you could prove it. But that’s why people who are sending out these e-marketing emails need to make sure they are registered and make sure they aren’t [getting into trouble].
“This isn’t [intended] to get legitimate companies in trouble,” Murphy stresses, and notes that neither is it intended to demonize the adult industry. “We think most legitimate companies, including companies that are sending pornography and other items like that to adults, don’t want to send that to kids. The Children’s Protection Registry Act protects them as well, and it kind of takes the pressure off them because it provides them with a list of places where [their e-marketing] shouldn’t be going.”
Though, in a press release issued by the Utah Attorney General’s Office on July 19, it was reported that “hundreds of businesses, representing billions of messages sent each day, have already stated they will comply with Michigan and Utah registry laws,” not everyone is in agreement with the laws—especially those who deal in adult content.
“The impact [of the act] will be and has already been devastating,” says Wendy McElroy, FOXNews.com columnist and editor for libertarian feminist theory website Ifeminists.com. McElroy, who says she has no choice but to discontinue sending the ifeminist newsletter via email due to the act, complains, “Because the law is so vague and broad, because it allows for no notification whatsoever before imposing harsh penalties, any prudent editor who deals with sexual issues will self-censor.” Though McElroy says that the ifeminists newsletter does not “advertise or knowingly link to any commercial products that would have been illegal for a child to acquire,” she says that the newsletter – which deals with hot-button topics like abortion, pornography, and gay rights – does contain links to mainstream sites that in turn feature links to online gambling sites.
One question that arises in looking over the act is how it pre-empts the U.S. CAN-SPAM Act of 2003. Indeed, as adult entertainment attorney Clyde DeWitt points out, “The federal CAN-SPAM Act generally nullifies state laws regulating spam, except to the extent that state laws involve fraudulent spam or are laws of general application, such as laws against deceptive advertising, harassment, and so on. So I’m not sure what device these states have in mind to circumvent that general rule.”
“That’s another thing that bears further analysis,” says Simpson. “The CAN-SPAM Act is directed toward particular types of state laws. It exempts state laws that are directed to what is known as computer crime. The drafters of the Michigan and Utah legislation were obviously aware of the CAN-SPAM Act, so they drafted their laws specifically to get around the pre-emption provisions in the act. Whether a court would find that [the Michigan and Utah] laws are pre-emptive or not is really a close call. It would have to be litigated.”
Murphy was not able to comment on how the registry act pre-empts the CAN-SPAM Act, if it does so at all. Utah Attorney General Marc Shurtleff was on vacation at press time, while Michigan Attorney General Mike Cox was unavailable for comment. However, as adult entertainment attorney Bob Sarno points out, “I don’t think [CAN-SPAM] necessarily pre-empts the registry act. This seems to be aimed at prohibiting impermissible communications to minors. It’s more specialized than the CAN-SPAM Act.
“The problem is, in the CAN-SPAM Act, it’s really related to unsolicited email and spam, which by its definition is unwanted,” Sarno continues. “Most adult users protect themselves because people opt in. The people who are generally receiving the emails are usually people who have consented to receive sexually oriented material, and it’s not a violation of the CAN-SPAM Act. But in this case, it doesn’t matter if there is consent, [because] under the Utah and Michigan laws they’re saying if the person who consented happens to be a minor, that consent isn’t going to be valid in any event.”
For many, the registry act is an unnecessary piece of legislation that seems to preclude parental responsibility. “Where are the parents in this situation?” McElroy asks. “Why do we need government censorship and the quashing of free speech to handle the issue of what information a child receives? Are there no adults in the home anymore? It is easy for parents to monitor and block their children’s computers.”
Indeed, Murphy concedes, parental responsibility is an important part of the equation. “Even though we think this is going to offer a great deal of protection to children, it is still up to parents to monitor what their children look at on the Internet and make sure that they aren’t going onto sites and putting their emails and their names on lists for adult pornography sites,” he says.
“From the state’s standpoint, our hope was to protect children and give parents control of what their kids were seeing or getting on the Internet, and we think this registry is going to do a lot to protect kids,” Murphy continues. “We don’t think it’s going to be foolproof; we don’t think it’s going to stop everything. But we do think it’s going to make a big difference.”
Still, while Styler says that, “We believe that [the registry act] will stand up to any challenges,” many think that the law will indeed face opposition in the form of litigation. There is already one lawsuit brewing over Utah’s Adult Content Registry, which requires all Internet sites dealing in adult content to register with Utah, thus being blocked by some Internet service providers per user request. The content registry also makes it a felony offense to distribute potentially harmful material to minors. In June, more than a dozen bookstores, artists, and trade organizations filed suit along with the American Civil Liberties Union, claiming that Utah is trying to regulate constitutionally protected adult content. Murphy says the state plans to file a suit in response.
When asked about the possibly unconstitutional nature of the registry act, Tom Hymes, communications director of the Free Speech Coalition commented, “The Free Speech Coalition attorneys are looking at the new laws and will reserve comment for another time regarding them. But we advise that people should obey the CAN-SPAM Act and not send illegal unsolicited email. Obviously, we are opposed to illegal spam, and we don’t believe that people should be illegally spamming anyone, whether they’re on a registry or not. But there are dimensions here that we are unclear about, and at the present time, there is no Free Speech Coalition policy [about the registry act].”
Meanwhile, Simpson tells AVN Online that the Institute for Justice is considering filing a suit against the registry act. “We are investigating and examining the laws a bit more to see what their impact is and to see if there might be some unconstitutional violation.”
Sarno, for one, says he expects the laws to be challenged. “I think they are probably going to be subject to an attack [for being] vague and overbroad, and I think that there’s a good chance that they will be knocked down because of that,” he says. “Probably one of the ways that [attorneys] will attack the registry act is that it doesn’t really define what is illegal or prohibited for minors. So, in that sense, it could very well be considered a violation of the First Amendment because it’s vague and overbroad in its very scope and definition. But I think until that happens, [the laws are] very, very dangerous because they contain very serious penalties. Michigan and Utah can do some serious damage with these laws.”
Saying that “the laws impose another layer of cost and threat to the operation of [adult-related] business,” Sarno adds he feels that “on one hand, there is a legitimate concern on the part of the states – some way to protect minors from receiving material over the Internet because there’s no way you can police the Internet. So, basically, they’re saying, ‘OK, we’re going to force you guys to police yourself,’ and this is a pretty transparent way of doing that.”
Sarno points to Sections 3008 and 3010 of U.S. Code 39, in which it states that those who do not wish to receive sexually oriented material by postal mail can add their names to a list at the post office, as a similar way of policing unwanted correspondence. “I think what Utah and Michigan have done is similar to that,” he offers, adding that all commercial retailers and spammers should comply with the registry act until it is overturned or restructured. “It’s a pain in the ass,” he concedes, “but it’s doable.”
Of course, he says, in order for organizations to comply with the registry, they first have to know about it. “I don’t know that anyone outside the adult industry is even aware of this,” Sarno says. “It’s not just strictly limited to sexual conduct. It’s limited to anything that minors are prohibited from purchasing.”
For her part, McElroy is adamant that the registry act will do little to protect children from the intended “culprits” pinpointed in the law, and – echoing the statements of many who criticize the recently revised 2257 regulations for similar reasons – says she feels the act is motivated by something beyond child protection. “It is nothing more than a money and power grab under the thin guise of protecting children,” she maintains. “Children who wish to explore this material will avail themselves of the plenty that is on the Internet and at news stands—in short, everywhere in our culture. This law is the true obscenity.”
