New E-mail Laws May Catch Marketers Off-Guard

E-mail marketers may be surprised to discover they need to comply with new laws taking effect in Michigan and Utah on Friday.

The “Child Protection Registry” laws, meant to shield youngsters from adult material, affect anyone sending commercial email to inboxes in those states.

“This has caught everybody by surprise. They were passed with much fanfare last July, but since then everybody has forgotten about them,” said Anne Mitchell, president and CEO of the Institute for Spam and Internet Public Policy (ISIPP).

The registries are intended to act like current “do not call” lists. Individuals may place on the registries any email address to which a minor may have access. Schools and other child-focused organizations may also register entire Internet domains.

Once an email address is on the registry for more than 30 days, commercial emailers are prohibited from sending it anything containing — or linking to — advertising for a product or service that a minor is otherwise legally prohibited from accessing, such as alcohol, tobacco, gambling, prescription drugs, or adult-rated material.

E-mail senders are required to match their mailing lists against the registries on a monthly basis, for which they must pay both Michigan and Utah a per-email-address fee. The Michigan law limits the fee to $0.03 per address, while the Utah law leaves it to the discretion of the state’s Department of Consumer Protection to set the fees.

To prevent unscrupulous users from harvesting addresses from the list, both states have made it a felony to obtain or attempt to obtain addresses from the registry, or to use them improperly.

Senders found to be in violation of Utah’s law will face up to three years in jail and up to $30,000 in fines, as well as potential civil penalties of $1,000 per message. Violators of Michigan’s law face similar fines and jail time, and may be liable to civil penalties of $5,000 per message or $250,000 per day of violation.

The laws are written to protect ISPs and other intermediaries from being held liable and therefore hold responsible the party who controls the list. The way that plays out when multiple parties have access to the list will have to be determined in future court cases, Mitchell said.

Senders would be in violation of the law regardless of whether the email was requested by the minor or parent of the minor, so even legitimate mailers who have followed careful opt-in procedures may find themselves in violation of these laws — if they fail to check their lists against the state registries.

“This is not a law about spam. This is very specifically about sending adult content to minors,” Mitchell said.

“Initial readings of the laws were that they only impacted emails promoting gambling or pornography, but further readings made it appear that the scope could be far broader,” said Brooks Dobbs, DoubleClick’s director of privacy technology. “They can include things like car rentals, travel, hotels, automotives, credit cards or any other goods or service that a minor may be legally prohibited from purchasing, possessing or entering into.”

While the laws received media attention when they were first passed last year, they haven’t been a big topic of industry discussion since then. Several marketers contacted by ISIPP were unaware, or vaguely remembered that the laws had been passed, but none had made any preparations to comply with them, according to Mitchell.

“The laws did catch a lot of people in the industry flat-footed,” Dobbs said. “The laws go into effect on July 1 and the states are actually mandated to have the registries working by that time. However, we’re not aware that either state has published any information about how you would actually use the lists yet.”

While some marketers are not paying much attention to the laws, thinking they will likely be struck down, Mitchell points out that the only way for that to happen is if senders contest each of the laws and prevail in court. “People need to comply with the laws as they are written, unless they want to take the gamble of being the sender who has to go to court over this,” she said.

Related reading

pokemon go