Marketers, Watchdogs Team Up Against E-mail Registry

Six marketing industry organizations and privacy watchdog groups have banded together to voice concerns over Utah’s “Do Not E-mail” registry.

The E-mail Sender and Provider Coalition (ESPC), the American Advertising Federation (AAF), the American Association of Advertising Agencies (AAAA), the Association of National Advertisers (ANA), the Electronic Frontier Foundation (EFF) and the Center for Democracy & Technology (CDT) on Wednesday jointly filed an application of amici curiae against the Utah Child Protection Registry Act. The organizations seek to raise legal concerns with the act, which went into effect, along with a similar law in Michigan, in July 2005. The groups filed the brief in a case brought by the Free Speech Coalition against the state of Utah, which challenges the constitutionality of the state’s law.

The Utah and Michigan laws aim to protect minors from receiving email messages that promote products or services that cannot be lawfully sold to them or contain material that is “harmful to minors.” They attempt to do so by creating a “Do Not E-mail” registry which contains email addresses that belong to minors. The states require email marketers to compare their lists against the registry, for a fee, and enforce penalties on any senders who do not comply.

These “do not email” registries have been roundly criticized by the FTC and others for exposing children’s contact information instead of protecting it.

“It’s been stated time and time again by the Federal Trade Commission and other legislators that ‘Do Not E-mail’ solutions do not and will not work,” Dan Jaffe, executive VP of the ANA, said in a statement. “Spammers, phishers and other fraudulent senders are rule breakers and will not comply with the legislation.”

The issue was debated and finally left out of the CAN-SPAM Act when it was passed in October 2003, despite legislative calls to include such a registry.

In addition, the groups claim that there are issues with the security of the registry technology which could expose minors’ email addresses. “The registry does not monitor who downloads their lists and so predators, pedophiles and other fraudulent senders can easily extrapolate the email addresses of minors, resulting in the exact opposite of what the Act intended,” said Trevor Hughes, executive director of the ESPC. “This registry will do nothing to protect children and will in fact put them at even higher risk of being preyed upon via email.”

Besides these security concerns, the industry groups in this case say that the Utah law is flawed in other ways. They argue that it’s impossible to feasibly comply with, or even to enforce, such a law at the state level. The amicus brief holds that the CAN-SPAM Act should control and pre-empt the Utah state registry, since Congress determined in the CAN-SPAM Act that spam legislation must happen at a national level to provide a common platform for standards.

“This law raises serious concerns about privacy, online safety and inter-state communication. Not only are we concerned that the legislation will do little to protect children from harmful images and messages, we fear it could actually worsen the problem, and in the process badly tangle the rules governing Internet communication. There are better and more effective ways for parents to protect their children in the online environment,” said John Morris, staff counsel for the CDT.

In addition, the broad language in the Utah law makes it difficult to comply with and enforce, since the content that falls under the law is not entirely clear. The broad wording is also seen by some as a potential danger to free speech in all types of electronic communications.

“This law aims to squelch speech, going far beyond the usual panoply of sin for which it aims, encompassing all sorts of communications that the state hardly needs to baby-sit,” said Kurt Opsahl, staff attorney for the EFF. “On its face, Utah’s law could encompass services such as body piercing, as that requires parental consent; hotels and credit cards, as minors can’t legally contract for them; or car rentals, because minors don’t get a full license until age 18.”