March 20, 2006

Legislative Activity


The following article appeared in the March 20, 2006, issue of Advertising Compliance Service.

New Wave of Proposed "Child Protection" Laws Would Create "Do Not Spam" Registries Lists for Children

By Clark Rector, Senior Vice President — State Government Affairs

SWEEPING THROUGH MANY STATE LEGISLATURES
A new wave of proposed "child protection" laws is sweeping through many state legislatures. Utah and Michigan have already enacted the laws. In a novel approach, straight from the pages of 1984, the logic behind the bills is that to protect children, children must be put at risk.

COMMERCIAL EMAILERS WOULD HAVE TO PAY A MONTHLY FEE
The bills intend to create "do not spam" registries list for children. The registries would supposedly protect children from receiving inappropriate commercial emails. Commercial emailers would be required to pay a monthly fee to a third party contractor in each state to have their mailing lists "scrubbed" of the email addresses of any minors in that state that have been submitted to the registry. Failure to comply would result in substantial monetary fines, and in some instances, criminal penalties.

REGISTRIES RAISE A NUMBER OF VERY TROUBLING ISSUES
Interestingly, but probably not coincidentally, the one company (Unspam) with the technology to serve as contractor for the registries also seems to be the driving force behind the introduction of the legislation in each state. While the concern of lawmakers for children is well intentioned, the registries raise a number of very troubling issues. First and foremost is that they will increase, not decrease, the danger to children. That concern is not industry crying wolf, it is shared by independent observers with no direct stake. The Federal Trade Commission has expressed "grave concerns" about the registries and said that "the possibility that such a list could fall into the hands of the Internet's most dangerous users, including pedophiles, is truly chilling."

Consumer and Internet safety groups such as Working to Halt Online Abuse, the Center for Democracy and Technology and the Electronic Frontier Foundation have weighed in against the registries as well.

In its contract with Utah, Unspam acknowledges that it cannot guarantee the security of the registry and absolves itself of liability should the security of the list be breached.

SERIOUS FREE SPEECH AND FIRST AMENDMENT ISSUES
While danger to children is obviously paramount, the registries raise serious free speech and First Amendment issues. Legitimate communications between a marketer and willing and legal customers will be chilled. Senders of email have no way of confirming the physical location of the owner of an email address. In point of fact, many people receive email in multiple locations, often in multiple states. Therefore, marketers who in good faith believe they are not sending email to a state with a registry are still at risk of violating the law if they do not comply. Even if the registries were not more likely to harm than help children, the cost to businesses of complying would far outweigh any marginal benefit that may occur.

Finally, the American Advertising Federation (AAF) believes that the states are prohibited from enacting the registries by the federal CAN-SPAM law which preempts inconsistent state laws.

UTAH LAW IS BEING CHALLENGED IN FEDERAL COURT
In addition to the laws passed in Utah and Michigan, legislation has been introduced in Connecticut, Georgia, Hawaii, Illinois and Iowa. The Utah law is being challenged in federal court by the Free Speech Coalition. The AAF has joined with the Email Sender & Provider Coalition and others to file an amicus brief supporting the challenge.

One of the most memorable quotes from the Vietnam era, which also could have come from the pages of 1984 was, "we had to destroy the village in order to save it." Let's all hope that legislators across the country realize that in destroying the online security of children they will most assuredly not save it.

LAWYER'S REFERENCE SERVICE

Proposed Legislation

Georgia Senate Bill 425.
Illinois House Bill 572.