Published: July 03, 2005
Email broadcasters unknowingly break the law
By Jack Campitelli, Esquire 
As if the CAN-SPAM legislation wasn't bad enough, now Utah and Michigan have their own law that make it difficult to send email.
The new legislation took effect on July 1, 2005. All ezine publishers or email broadcasters need to pay attention to these new laws.
These "Child Protection Registry" laws are now on the books and the trend may well grow.
In a nutshell, here's the drill. If you e-broadcast to anyone who is a "child" (even though they have opted in to your database, or double-opted in) you must scrub their addresses through the registry database of Utah and Michigan at the cost of $.005 and $.007 respectively.
Of course, more often than not, you have no idea who is a child under the laws of Utah or Michigan.
Interestingly enough you don't have to publish any objectionable content yourself, you just have to have a tangential link to it someplace or maybe that link links to another link.
The areas of primary interest (but not all interest) are:
Alcohol & tobacco
Adult or obscene content
Gambling, Lotteries
Drugs, pharmaceuticals, prescription drugs (illegal or not)
Matchmaking services
Firearms
Finance related services such as mortgage, credit card,
banking, etc.
Phishing or other scams
One can only pray that either the feds step in or a court finds this objectionable.
It's not that anyone wants firearms marketed to kids. It's that this is a stupid, cumbersome, and hopefully unlawful way to do it. It obviously creates a massive and costly burden on email broadcasters. Of course, like most overly broad laws, the only ones who won't try to comply are the same folks who didn't care about CAN-SPAM and continue to slam us with spam from remote corners of the globe.
But the law is as dangerous as it is stupid because it gives parents of "injured" children the right to sue in a civil action. That means any of us are potential targets of greedy scamster parents. Of course, as you would expect, it carries criminal sanctions, too.
Ideas around this? Talk to your media attorney about his or her read as to whether web-based delivery is covered.
The "link to link to link" aspects of the legislation may make this play vulnerable, but, if I were advising you after you told me you couldn't afford to vet your list with the Do Not Email Registry of every state, I'd surely tell you not to have much content in the email and then make sure the hyperlink to your web-broadcast did not contain any objectionable material. This is not bulletproof, but it's two steps away from the broadside of the law. The only other alternative is to actually scrub your lists against the registry every single time you email.
If any of you have real money, this would be a lovely constitutional test case.
The law is vague, overly broad, and creates a chilling effect on the exercise of basic first amendment rights.
Where's the ACLU when we need it?
Jack Campitelli's Internet Law Compliance System
See also Ten Commandments for Webmasters
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