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25 Aug 2005
Sending pornography to children is really bad, right? Then making it illegal to e-mail porn to children is a great idea, right? Nope.
An article in USA Today describes the perverse effects of new laws in Michigan and Utah. Both laws make it illegal to send ads to minors for things that minors aren't allowed to buy, with serious legal penalties if you do. Both have established opt-out lists on which parents can list addresses used by their children, and mailers can pay to have their lists scrubbed against the opt-out lists. Both states use a new scrubbing service run by Unspam, LLC, run by Matthew Prince who also runs the interesting Project Honeypot. The scrubbing service's website is coy about the cost of scrubbing, but the Utah regulations prescribe a fee of 1/2 cent per address and Michigan allows up to 3 cents per address. Even 1/2 cent is a significant tax on senders, and 3 cents/address is probably more than the entire cost of sending a large email campaign. Both state laws say you have to scrub and pay the ``email tax'' every 30 days to keep your lists clear of opted out addresses.
Both laws, which share a lot of language and are clearly based on the same initial draft, are worded both poorly and broadly, prohibiting ads not just for pornography (the nominal target of both laws), but anything that minors are not allowed to buy or participate in. The Michigan law goes on to prohibit sending a message to a minor if the:
primary purpose of the message is to, directly or indirectly, advertise or otherwise link to a message that advertises a product or service that a minor is prohibited by law from purchasing, viewing, possessing, participating in, or otherwise receiving.
That is, if you send a message to a 17 year old friend in Michigan that links to, say, the web page of an article in a local newspaper, and that article's page happens to contain a cigarette ad, you're liable for a $5,000 fine. Perhaps that's not what the legislature had in mind, but that's what they said.
The perverse effect of this law will be to scare any sensible marketer away from Michigan and Utah. For example, my network hosts the web sites of several small wineries in my part of upstate New York, most of which have mailing lists for their customers. None of them, by any stretch of the imagination, appeal to minors both because their wine is not particularly cheap and little of it would appeal to new drinkers. Nonetheless, I've had to tell them that unless they want to do the expensive monthly scrub, they better be sure to remove any Michigan or Utah addresses and keep them off. On the other hand, hard core spammers (of which both states, particularly Michigan, have their share) will ignore these laws just like they ignore every other anti-spam law and just keep pumping out their junk, heedless of to whom or where it might be going.
Last year, the FTC made a well-reasoned decision not to create a National Do Not Email Registry because they concluded that it wouldn't work. Unfortunately, at least two state legislatures didn't take the hint. I gather that it's fairly likely that these laws will be struck down in Federal court, both due to 1st amendment and commerce clause concerns, which they richly deserve. Until they are, anyone who sends mail into Michigan or Utah does so at his peril.
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