SALT LAKE CITY, UT – Officials in Utah announced that they have cited four more companies for sending commercial email to addresses registered in the state’s Child Protection Registry, in violation of a state law that the Free Speech Coalition is challenging.According to the Salt Lake Tribune, the emails promoted web sites that offered alcohol, pornography, and gambling. The companies named in the citations are DOS Media Now, of Encinitas, CA an online gambling site; Golden Arch Casinos of Overland Park, KS; Smoothbeer.com, a beer company based in the United Kingdom; and SoftestGirls.com, a Singapore-based company that allegedly sent sexually explicit email to addresses on the Registry’s list.
DOS Media Now was fined $5,000 for the violation, Golden Arch $2,500, Smoothbeer.com $2,500 and SoftestGirls.com $25,000, according to the Tribune.
“This has become a serious problem,” said Francine Giani, executive director of Utah’s Commerce Department. “It’s a big issue for us, but parents can play an important role in this process, too, by knowing and being aware of what their children are doing on the internet.”
Utah’s law is being challenged by the FSC on the basis that it violates the First Amendment and the Commerce Clause, and is preempted by the CAN-SPAM Act, according to attorney Jerome Mooney, who is handling the case for the FSC.
“States shouldn’t be off redoing what CAN-SPAM has already done,” Mooney told YNOT in a phone interview today, noting that if every state is allowed to pass its own set of laws regulating email, those laws will impede commerce and serve as a clear prior restraint on speech.
“If I have to check and see where every recipient is located, it not only interferes with commerce, it chills my ability to communicate,” Mooney said.
Noting that companies have no way of knowing where the users of most email addresses are located, Mooney said that companies promoting the kind of materials covered by the registry laws would have to screen their mailings against the lists in Utah and Michigan, just in case any of the addresses on their list also appeared on the registries in those states.
Mooney also points out that even if a company has “affirmed consent” to email a given address and even if a company has every reason to believe the address in question belongs to an adult, such an address could appear on the registries and thus be illegal to mail under the laws of that state, despite being perfectly legal by the standards of CAN-SPAM.
Mooney said that while he can sympathize with the good intentions behind the child protection registries adopted by Utah and Michigan, he isn’t persuaded that such registries are effective or legal.
“We’ve never questioned the good intentions,” Mooney said, “but that’s all they ever come back with when you point out that the laws aren’t constitutional.”
One problem, says Mooney, is that the state officials don’t understand the international nature of the internet, itself.
“Talk about the notion of ‘Think globally, act locally” Mooney said, “They’ve decided to impose their local standard and local solution on a communications technology that spans the globe.”
The desire to regulate the ‘Net on the part of state authorities, understandable though it might be, just won’t work under the law, Mooney says.
“If every state starts doing the same thing and businesses have to concern themselves with complying with 50 different standards of 50 different states…” Mooney trailed off, “…well, the Commerce Clause just doesn’t allow that.”
Arguments in the FSC’s lawsuit, Free Speech Coalition v. Shurtleff, are scheduled to take place in November.
