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Six Leading Associations File Amicus Brief Raising Serious Legal Concerns With Utah Child Protection Registry

Today, the Email Sender and Provider Coalition (ESPC) announced the filing of an application of amici curiae against the Utah Child Protection Registry Act in conjunction with the American Advertising Federation, the American Association of Advertising Agencies, the Association of National Advertisers Inc., the Electronic Frontier Foundation and the Center for Democracy & Technology. The group of organizations demonstrates a united voice across the online industry against email registries.

The Utah law aims 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." It attempts to do so by creating a "Do Not Email" registry which contains email addresses that belong to minors. The Act requires email marketers to "scrub," or compare, their lists against the registry for a fee and implements enforcement methods for any senders who do not comply.

The ESPC and the email industry applaud Utah's intentions, however, they believe that the Act is extremely flawed in many ways. Several security concerns arise when examining the registry technology which may actually expose email addresses belonging to minors rather than sealing them from predators and illegal spammers. The Federal Trade Commission has opined on numerous occasions that such registries: (a) are not feasible; (b) increase the prevalence of unsolicited email messages; and (c) expose our nation's children to even more inappropriate content. The broad language in this bill could also chill speech in all types of electronic communications.

"Three strong advertising associations, a leading email association and two consumer advocacy/online privacy organizations coming together is a rare and powerful coalition," said Trevor Hughes, executive director of the Email Sender and Provider Coalition. "The fact that we have come together so strongly is testament to the gravity of our concerns about this Act."

The Utah Act also flouts federal CAN-SPAM legislation; ignoring the fact that Congress determined spam legislation must happen at a national level to provide a common platform for standards. The amicus brief will argue that the CAN-SPAM Act should control and pre-empt the Utah state registry.

All of the involved organizations have generated statements that clearly explain their concerns and issues associated with the Utah registry. Those statements follow this press release.

QUOTES FROM CONCERNED PARTIES:

"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. 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. Worse yet, the email registry is as likely as not to expose children to more unwanted spam or other email from unscrupulous parties."

Kurt Opsahl, Staff Attorney
Electronic Frontier Foundation

"The Utah Child Protection Registry Act flouts the federal CAN-SPAM Act, which pre-empts states from creating spam legislation in order to preserve a strong federal standard. Tragically, instead of creating a stronger standard, the Utah registry undermines CAN-SPAM and greatly increases the risk to the very children it claims to protect."

Clark Rector, Senior Vice President-Government Affairs,
American Advertising Federation

"It has been proven that the security of the registry is deeply flawed. 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. This registry will do nothing to protect children and will in fact put them at even higher risk of being preyed upon via email."

Trevor Hughes, Executive Director
Email Sender and Provider Coalition

"The Utah Child Protection Registry Act will cost businesses millions of dollars simply to comply and scrub their lists and will essentially be a waste of valuable dollars. In addition, legitimate businesses may be stifled by the vague categorizations of appropriateness as determined by Utah, causing the email marketing and commerce industry to take a severe hit. This registry, which has time and again been determined to be fundamentally flawed, is in no way worth the financial risk."

Adonis Hoffman, Esq.
SVP & Counsel
American Association of Advertising Agencies

"It's been stated time and time again by the Federal Trade Commission and other legislators that 'Do Not Email' solutions do not and will not work. Spammers, phishers and other fraudulent senders are rule breakers and will not comply with the legislation. We look forward to finding a solution to this epidemic that doesn't harm kids, and hope that Utah will further their progress and take the measures necessary to find that real answer."

Dan Jaffe, Executive Vice President
Association of National Advertisers

"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."

John Morris, Staff Counsel
The Center for Democracy & Technology

About the Email Sender and Provider Coalition:

Formed in November 2002 to fight spam while protecting the delivery of legitimate email, the ESPC boasts a membership comprising many of the brightest and most innovative minds in the email industry, including Email Service Providers, Mail Transfer Agents, Internet Service Providers, application and solution developers, and deliverability solutions providers. The ESPC is composed of 75 members including CheetahMail, an Experian Company; Constant Contact; Digital Impact; DoubleClick; ProspectivDirect; Return Path Inc.; SKYLIST and StrongMail Systems, Inc. For more information, please visit www.espcoalition.org/

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