The New Assault: 1
Both laws prohibit the sending of certain types of communications by email, mobile telephones, text messaging, facsimiles and other methods to so-called "contact points" that either belong to a minor or to which a minor has "access." If you use email to market your site, or if you advertise or distribute mobile adult content, you should take note: you may already be at risk for criminal prosecution and substantial civil liability under these new regulations. Consequently, if you are not already aware of, and in compliance with, these new so-called "Child Protection Registry" or "Do Not Contact" laws, I strongly urge you to become so, and soon. I also strongly recommend that you do what you can to assist the Free Speech Coalition in its efforts to battle this new industry threat.
Both Utah's and Michigan's new statutes are examples of a chilling new trend by state governments to attempt to prohibit the transmission of certain types of religiously disfavored but otherwise perfectly legal commercial communications, such as email ads for "adults-only" products like alcoholic beverages, tobacco, or of course, adult entertainment, merely because such advertisements might be viewed by minors. The Utah law is innocuously titled the Child Protection Registry (CPR). Its Michigan counterpart is known as the Michigan Children's Protection Registry Act (MCPRA). In many respects, the two laws are quite similar. Both are loosely modeled after the very popular Federal Trade Commission's "Do Not Call" registry, which prohibits solicitation calls to telephone numbers registered in the FTC "Do Not Call Registry." However, both Michigan's and Utah's laws go much further than the prohibition of annoying telephone solicitations.
Specifically, Utah's CPR prohibits the sending of a "communication to a contact point or domain that has been registered for more than 30 calendar days [in Utah's registry]... if the communication: (a) advertises a product or service that a minor is prohibited by law from purchasing; or (b) contains or advertises material that is harmful to minors, as defined in Section 76-10-1201 [sexually-oriented materials]." Similarly, the MCPRA states that "a person shall not send, cause to be sent, or conspire with a third party to send a message to a contact point that has been registered for more than 30 calendar days 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."
Both laws focus on messages pertaining to an incredibly broad spectrum of prohibited products and services under state and federal law, including alcohol, gambling, lotteries, drugs, firearms, fireworks and of course, sexually oriented materials. Both laws apply to messages that advertise, contain, or in the case of MCPRA, just link to any material that would be considered illegal or harmful to minors. This should be of particular concern to the online adult industry because so much material can be deemed to be "harmful matter to minors," the regulations arguably apply to virtually every kind of sexually-oriented content.
Under both laws, the prohibited "contact points" that can be registered in the respective state registries include any electronic mail addresses, instant message identities, wireless telephone numbers, pager numbers or facsimile numbers that a minor owns or has access to. Both statutes also provide for prohibited contact to registered PDAs, which would presumably include iPods and MP3 players, and any other electronic address types that the state may later specify.
The bottom line is that these new laws will apply to a breathtakingly broad spectrum of businesses from wine merchants and gun venders to brick and mortar casinos, and fireworks companies. However, the legislative histories of both laws and a recent advisory issued by the State of Utah clearly indicate that senders of messages containing sexually explicit content or advertisements for adult entertainment are right at the top of the list of enforcement priorities. Consequently, here are few other features of Utah's CPR and the MCPRA you should know about:
A violation of the CPR constitutes a "computer crime" under Utah law and is a class B misdemeanor for the first offense and a class A misdemeanor for subsequent offenses. A violation of the Michigan law is a crime subject to penalties of up to a year imprisonment and/or a fine of up to $10,000, with greater penalties for subsequent offenses. The law also provides for the forfeiture of "all computer equipment, all computer software, and all personal property used in connection with any violation of [the] act."
No "Consent" Defense
The MCPRA provides that the "consent of a minor or third party to receive the message is not a defense to a violation of this section." MCL § 752.1065. Similarly, the CPR states the "consent of a minor is not a defense to a violation of this section." Therefore, message senders cannot rely on "opt-ins," even double opt-ins, or any other affirmative act of a minor, or, in the case of the MCPRA, any permissive action by any recipient, to provide the sender with insulation from liability under the Act.
Civil Lawsuits by Private and Governmental Parties
The MCPRA allows civil suits to be initiated by: (1) the guardian of a minor who receives a prohibited message; (2) "a person through whose facilities the message was transmitted"; or (3) the attorney general. A plaintiff may also recover attorney fees and costs. The CPR has similar civil lawsuit provisions.
The civil penalties for violation of either of the laws are substantial. Violation of the MCPRA subjects the violator to a penalty of $5,000 per message, up to $250,000 per day. Violations of the CPR enforced by private parties can cost you $1,000 per message without any maximum. Administrative enforcement can result in fines of $2,500 per message unless the violation is intentional, in which case the fine is $5,000 per message.
In part two we'll examine personal and institutional contact point registries, their associated fees and more.
Gregory A. Piccionelli, Esq. is a senior member of Piccionelli & Sarno, one of the world's most experienced law firms specializing in Internet and adult entertainment matters. He can be reached at (310) 553-3375.