FSC Challenges Utah’s Anti-Spam Registry

Rhett Pardon
SALT LAKE CITY, Utah — The Free Speech Coalition, in its first legal challenge against legislation regulating spam, has filed a federal suit against the state of Utah, claiming that its Child Protection Registry Act is unconstitutional.

“This suit is all about the unfairness of the registry, the lack of wisdom in the law, which went into effect in July,” FSC Communications Director Tom Hymes told XBiz. “For smaller companies, the Act would pretty much drive them out of business. The monetary cost is real significant.”

The suit, filed in U.S. District Court in Salt Lake City, said that the Act violates the right of free expression, treats e-marketers differently than other marketers and potentially prohibits interstate communications outside the state, among other claims.

Utah created the Child Protection Registry Act to protect minors from receiving email messages that promote or contain adult products or services.

The law established a “Do Not Email” registry containing email addresses that belong to, or can be accessed by, Utah minors. It also criminalized the sending of prohibited email to any email address listed in the registry for more than 30 days.

Further, the Act provides criminal, administrative and civil enforcement mechanisms, and requires email marketers to “scrub” their lists against the registry for a per-scrub fee of $0.005.

Hymes said that the cost of “scrubbing” email lists against the registry database on a monthly basis could be prohibitive, leading to a chilling effect on legitimate Internet marketing. It’s also incompatible to Mac and Linux based systems, he said.

“From the moment this law was introduced, we saw it as a red flag,” he said.

Hymes said that while the purpose of the law is commendable, it also is flawed in a number of ways.

Most significantly, he said, the law conflicts directly with the federal Can-Spam Act, which was enacted by Congress in 2003 to regulate and standardize email marketing in the U.S.

In ratifying Can-Spam, Congress considered the creation of a national “Do Not Email” list, and directed the Federal Trade Commission to prepare a plan for implementation.

But Hymes said that the FTC concluded that such a registry wasn’t feasible, would increase the prevalence of unsolicited email messages and would expose children to even more inappropriate content.

The FSC’s complaint identifies other problems with Utah’s new law, including that it creates a mechanism by which hackers, unscrupulous email marketers or pedophiles could potentially obtain the email addresses of minors.

The suit was filed by Utah attorney Jerome Mooney on behalf of the FSC. Attorneys Ira P. Rothken, Gregory A. Piccionelli, Jeffrey J. Douglas and Reed Lee also are working on the case.

The FSC complaint seeks declaratory and injunctive relief, asking the court to render the Act invalid.

Hymes said the FSC also would target Michigan’s similar soon-to-be-enacted law.