The threat, of course, is pornography. More specifically, the threat is pornographic spam — or, as it is known within courtrooms and halls of legislature, "sexually explicit unsolicited commercial email (UCE)."
The battle against spam took on a new character when a man named Matthew Prince joined the fray. An adjunct law professor at Chicago's John Marshall Law School, Prince has spent the better part of the decade traveling the country, telling all who will listen (and there are plenty) about his solution to the scourge of porno-spam: child protection registry (CPR) legislation.
Ignoring the fact that the overwhelming majority of UCE content touts prescription drugs, fake lotteries and other scams, Prince focuses on the porn bogeyman, possibly because any battle cry targeting pornography is bound to be a hit with the highly motivated and politically active Christian Right.
Dedicated anti-porn Christians are not likely to know (or care) that recent data from Symantec Messaging and Web Security — "State of Spam, A Monthly Report, March 2007" — states, "Adult spam continued its decline and has now reached an all-time low of 3 percent of all spam."
With the support of social conservatives throwing their considerable weight behind Prince and his firm Unspam Technologies, the state legislatures of Utah and Michigan didn't just listen to Prince, they gave him the keys to the kingdom: Unspam helped write the legislation, lobbied for its passage, and today administers the Utah and Michigan "Do Not Email" registries that protect children's "contact points."
Prince denies the oft-repeated claim that his company composed any of the CPR legislation that has been considered around the country, and the notion that he and Unspam are driven by a religious or ideological agenda.
"[There is] a misconception that the idea for Child Protection Registry laws originated with Unspam," Prince told XBIZ "That is incorrect. In 2003, around the same time that the national do-not-call list was established, a number of legislators across the country proposed creating some sort of do-not-email registry. Our phone started ringing with legislators from Missouri, Michigan, Utah, and even a Senator at the Federal level asking for technical and legal help advising on the creation of such a system."
Unspam, Prince said, merely offers a solution to the spam problem.
"We have a technical product that serves a need, not an ideology," Prince said. "If a legislator decides to introduce a registry law that prevents solicitations for office supply products, we'd be happy to supply the technology to implement it."
How CPR Laws Work
Utah and Michigan passed very similar CPR laws in 2004, and allowed Unspam a year to get the registries up and running. Both registries went online in July of 2005. The stated purpose of both states' CPR law is to protect minors from receiving email messages that promote products or services that cannot be lawfully sold to them, and/or contain material that is "harmful to minors" as defined by other statutes.
Unspam purports to accomplish this by establishing "Do Not Email" registries containing email addresses that belong to, or can be accessed by, minors. The CPR criminalizes the sending of prohibited email to any address listed in the registry for more than 30 days.
There are specific criminal, administrative and civil enforcement mechanisms, and email marketers are required to "scrub" their lists against the registries at a cost of 5 cents a thousand in Utah; 7 cents in Michigan.
In March and April of 2006, the Unspam juggernaut visited any number of states, but none of them passed similar legislation at that time. Proposed legislation in Georgia, Illinois, Iowa, Wisconsin and Hawaii are either dead or languishing. A Connecticut bill, SB 46 was shelved in 2006, but has been resurrected this year and is being pushed hard by the Family Institute of Connecticut and other conservative organizations in the state.
Despite opposition from marketing groups, fair trade groups and civil libertarians, "[Prince] identifies only the porn industry as fighting the new laws," notes technology blogger Dana Blankenhorn. Other right-wing pundits have adopted Prince's tact, and work diligently to create the impression that only the adult entertainment industry opposes CPR legislation.
J. Grant Swank Jr., who writes a weekly religion column for the Portland Press Herald in Maine that is picked up by numerous self-described "Christian" and "conservative" Web sites and print publications, wrote a piece in November 2005 that typifies the rhetoric delivered in support of CPR laws.
"Porno pushers will go to any lengths by which to debauch the next generation," Swank wrote shortly after the Free Speech Coalition filed suit challenging the constitutionality of Utah's CPR law.
"Therefore, they use the Internet to connect obscenities especially with boys and girls, teens and young adults."
Since "boys and girls" are mentioned separately from "teens and young adults," one can reasonably infer that Swank is holding up the specter of "kiddie porn," a form of exploitation and abuse as strongly opposed by the adult industry as it is by the Christian Right.
Despite the vocal support of pundits who represent the Christian Right, Prince maintains that he is not on a quest to combat pornography.
"This is not a crusade for me [or] anyone else at Unspam," Prince said. "I view the alcohol, tobacco, gambling and pornography industries as my customers."
As Prince observed, it's also true that pornographic spam is "just one of the things regulated by these [CPR] laws."
"Alcohol, tobacco and gambling are also regulated," Prince said. "As a percentage, these other industries make up a far greater portion of the compliance fees than the pornography industry. If a legislator were authoring a new law to regulate only one industry, I'd much rather it cover alcohol than porn."
Some Unspam critics believe they have uncovered a compelling reason not to take Prince at his word; allegedly false claims made by Unspam when applying for a patent on the database technology used in the Utah and Michigan registries.
Brian Livingston, editor of WindowsSecrets.com, claimed in an article for ITManagement.com that, in 2003, "Prince filed U.S. Patent Application No. 20,040,148,506, laying claim to the specific database technology" it uses for the Utah and Michigan registries.
According to a February 2006 feature in Currents, an online magazine of the University of California, Santa Cruz (UCSC), however, Unspam's technology is "based on a prototype do-not-spam registry developed between 2002 and 2003 by a team of four UCSC engineering students" under the direction of Arthur Keller, a research associate in the technology and information management program at the university's Baskin School of Engineering.
The article described "a fortuitous meeting" between Keller and Prince at a Federal Trade Commission workshop. "In 2003," the article added, "UCSC licensed the registry prototype to Unspam," while "Keller and Holloway have both continued to work with Unspam on anti-spam strategies."
In more than 100 pages of notes and quotes gathered for this article, there was not a single mention of the UCSC/Keller connection to the Unspam software. While that fact is by no means definitive proof that Unspam fudged its patent application, it does raise some question as to how straightforward Prince and his backers have been in this whole matter.
In what an FSC press release termed "a disappointing decision," U.S. District Court Judge Dale Kimball ruled on March 23rd that the state's CPR may continue operations until the case goes to trial.
"The case now moves into the discovery phase," advises renowned 1st Amendment attorney Stephen Rohde, representing FSC in the matter. "We believe that once the evidence is fully developed, the Court will be persuaded by our arguments that the CPR is unconstitutional."
"The court," Rohde added, "gave only cursory attention to the issues of narrow tailoring and the least intrusive means [of protecting children from adult content]."
Rohde further contends that Judge Kimball's ruling ignored the fact "that CPR itself calls parental supervision the 'most effective' means [of protection]" and that the "extensive research conducted by the FTC under CAN-SPAM … led Congress … not to establish a national registry."
In addition to more legal moves by FSC, other concerned groups are entering the fray for a unique reason: They don't want this court battle to be characterized as "pornographers versus children."
According to Trevor Hughes, executive director of the Email Sender and Provider Coalition (ESPC), his group has had "serious" talks with other marketing and advertising trade associations about the possibility of suing Michigan and/or Utah to overturn the registry legislation.
There is more than a little concern that the FSC may lose its case before U.S. District Court Judge Dale Kimball because the jurist is "distracted by the sexual nature of the plaintiff's business," reports Ken Magill of DIRECT, an online direct marketing newsletter published by Penton Media.
"The ESPC is in conversations with a number of other trade associations with regards to separate litigation in Utah or Michigan," Magill quotes Hughes as saying. "We need to have confidence that the court is going to see through the distracting nature of the plaintiff here."
Prince said that he considers himself "a zealous advocate for the 1st Amendment," and asserted that his only motivation is to provide consumers with a service that they have expressed a strong desire for.
"Our goal is not to assist in outlawing pornography or any other product, [but] to empower individuals to choose what material is and is not allowed into their homes," Prince said. In fact, Prince said, far from being an enemy of the adult industry, he and his company are eager to work more closely with the industry.
"Right after the laws were first implemented, and well before the lawsuit, we reached out [to] the Free Speech Coalition [and] Unspam representatives and I continue to attend adult industry conferences and make ourselves available to talk," Prince said. "We stand ready and willing to act as a conduit between the adult industry and the government — something that is currently sorely lacking."