Utah’s registry allows parents and others to register email addresses to which minors have "access," and then prohibits emails from being sent from anywhere in the world to those addresses that advertise "harmful matter" or products or services minors cannot purchase.
Emailers can pay a private company to "scrub" their lists at a cost of 1/2 cent for every name on their list, according to the registry’s rules. That company, Unspam Registry Services Inc., is named in the suit.
The FSC contends in a 45-page motion to the U.S. District Court in Salt Lake City that the registry is preempted by the federal Can-Spam Act and that it violates the Commerce Clause of the U.S. Constitution, the 1st Amendment of the Constitution, and Article I, Section 15, of the Utah Constitution.
“The enforcement of CPR would effectively overrule Congress’ decision not to implement a ‘do not email’ registry,” the court filing said. “The public interest strongly favors upholding such explicit congressional intent.”
The FSC also said in the suit that the registry constitutes an impermissible prior restraint, violates the expressive privacy of members and imposes an unconstitutional burden on protected expression, among other arguments.
“The effort to enjoin Utah's CPR is an important part of FSC’s litigation strategy to challenge oppressive statutes which not only burden lawful expression and commerce, but in this case actually expose minors to unwanted intrusion by creating a convenient registry which the Federal Trade Commission believes can be easily hacked,” FCS Board Chair Jeffrey Douglas said.
FSC attorneys are seeking preliminary injunction enjoining Utah Attorney General Mark Shurtleff from enforcing any of the provisions contained in the act.
The FSC’s motion is supported by the American Advertising Federation, the American Association of Advertising Agencies, the Association of National Advertisers Inc., the Email Service Provider Coalition, Electronic Frontier Foundation and the Center for Democracy and Technology.
The case is Free Speech Coalition vs. Shurtleff, No. 2:05-cv-00949.
