SALT LAKE CITY, UT – A state anti-spam law that went into effect on July 15, 2005, has drawn the attention of the Free Speech Coalition (FSC), which filed suit in federal district court today to challenge its constitutionality.The law, which is part of Utah’s “child protection registry,” claims protecting minors from receiving promotions for products and services legally accessible only to adults or deemed “harmful to minors” as its goal. The registry employs a “Do Not Email” list that is updated every 30 days and includes addresses belonging to minors or that might be easily accessed by minors. Email marketers are required to “scrub” their lists of disallowed addresses for a minimal fee with criminal, administrative, and civil enforcement elements awaiting those found in violation.
The suit, filed by Utah attorney Jerome Mooney with help from FSC (www.FreeSpeechCoalition.com) attorneys Jeffrey J. Douglas and Reed Lee, contends that the well-intended law is in direct conflict with the CAN-SPAM Act enacted by Congress in 2003 in order to regulate and standardize U.S. email marketing. One of the goals of the CAN-SPAM Act is to avoid “balkanization” of email regulations which would make the practice of using email for marketing practically impossible. Free Speech Coalition contends that the Child Protection Registry, as well as a similar law that will soon be enforced in Michigan, do precisely that. In support of that contention, FSC representatives point out that Congress specifically pondered the creation of a national “Do Not Email” list and even directed the Federal Trade Commission (FTC) to lay the groundwork for such a thing. Instead, the FTC concluded that a registry of this sort was not workable and would likely result in an increase of unsolicited email messages, as opposed to a decrease. Further, the FTC conjectured that such an increase would ultimately mean that minors would be more likely to be exposed to inappropriate materials via email.
The FSC released a 39-page complaint listing nearly a dozen areas where the Utah law runs afoul of the constitution, creates an environment ripe for abuse of the system, or places minors in a more vulnerable position.
Among the problems inherent in the law is the fact it collects together the addresses of minors, making it easier for those who would prey upon them to do so; it violates the First and Fourteenth Amendments of the U.S. Constitution, as well as the Utah Constitution; it imposes an undue financial and work burden on responsible e-marketers; it does not differentiate between truly harmful content and legitimate email; it does not verify that submitted addresses actually belong to minors, are accessible by minors, or even belong to Utah residents; it provides no legal remedies for those who falsely represent themselves as being qualified for inclusion on the list; and it does not define the term “advertise,” and could include events open to minors but sponsored by companies that sell prohibited goods or services.
The Free Speech Coalition suit requests that the court render the Child Protection Registry Act void and invalid, as well as order its immediate end.
