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November 7, 2005

Concerns with Utah and Michigan Registries

Like many in the email marketing world, I've been keeping tabs on the Child Protection Registry initiatives in Michigan and Utah. It has been difficult to watch an effort which was based in good intentions get implemented in such a painfully bad way. I had my suspicions that these state laws wouldn’t go well and they really haven't.

To summarize the situation, over a year ago Michigan and Utah quietly passed Child Protection Registry statutes. The laws in both states are very similar. Each intend to prohibit particular types of offensive content that can be sent to registered contact points such as email and IM addresses.

Both laws list particular categories of material that are prohibited, things like gambling, tobacco, alcohol and pornography. Again, no one wants to send inappropriate material to anyone who doesn't want it, but particularly not to minors. However, the problems in the implementation are widespread and include:

• The language of each law beyond the specific category listings of prohibited materials includes broad and general descriptions for anything else that can be deemed harmful for minors to possess or view.
• It costs money to check the registry. And a lot of money at that. Marketers must pay half a cent for each address they check against the Utah registry and seven tenths of a cent in Michigan. This fee is not for each address matched but for each message checked!
• There is a private right of action, which means that any Utah or Michigan citizen can file suit against a sender, even if the information received was specifically requested.

Since the laws were drafted under the guise of child protection they were easily passed in both states. The email marketing industry initially took little notice or action. There was a broad presumption by most in the industry that these laws were pre-empted by the federal Can Spam Act of 2003. However, in August of this year, both laws took effect and the collective uproar began.

Many organizations have been lobbying since August against the registries operating. The Email Service Provider Coalition (ESPC) has been very active in both Utah and Michigan. Other trade organizations and freedom protection organizations have been commenting, lobbying, and even planning law suits.

There are numerous points of contention being relayed to the lawmakers in both states. Most deal with security and technology basics – rather than picking on the constitutionality or legitimacy of the law – though there are valid questions there as well. Often mentioned is the point that real spammers who are most prone to send offensive material are the least likely to comply.

Now, unexpected and probably unintended support comes by way of an FTC report which has surfaced. The report is an earlier response to a similar bill proposed in the state of Illinois last year. The 16-page letter emerged this week - and details item by item what a flawed idea the FTC thinks the registries are.

There are a number of sites reporting this latest development, you can read more here:

http://www.clickz.com/news/article.php/3561261
http://www.freep.com/money/business/childads25e_20051025.htm
http://www.marketingvox.com/archives/2005/11/04/ftc_state_email_registries_put_kids_at_risk/
http://www.chicagobusiness.com/cgi-bin/news.pl?id=18394

The ESPC has continued to work aggressively to raise concerns associated with the Utah and Michigan registries. The Michigan law has been postponed since August due to a typo. There are rumors coming out of Michigan that Governor Jennifer Granholm may sign the corrected legislation as early as this week, which would put the Michigan law back into effect.

It seems likely that protecting children from spam and offensive materials can be managed and achieved in other ways – without levying such a tax on email senders.

So, the saga continues to unfold, and like a bad car wreck, I can’t help but continue to watch to see just how ugly it may get.

Posted by gcrgcr at November 7, 2005 2:20 PM

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