Critics say spam law failing to guard kids
Dennis Jolley hasn't been deluged by offensive e-mail pictures and solicitations. Nor has his 4-year-old son, who hasn't quite figured out how to send or open an e-mail.
Still, several months ago, the Salt Lake City father signed up for Utah's Child Protection Registry anyway - just to be sure no unwanted pornography ever slips through.
"If they want to produce porn, that's their right. But I want to be able to say I don't want it to come into my house unsolicited - by any method," Jolley says.
Jolley is one of about 2,600 Utahns who have individually joined the state's fledgling registry. Another 100,000 have been signed up by Webmasters - including those for 27 school districts - who control their e-mail domain addresses.
Utah's registry is meant to protect children from adult-themed e-mails, including advertisements for cigars, wine clubs and porn. As often as once a month, 300 companies comply with the law's requirement to pay a half-cent to check each e-mail on their solicitation list.
The brainchild of a couple of friends who persuaded lawmakers in Utah and Michigan to adopt legislation and then created a Park City-based business to run the filter, the registry has generated an estimated $68,000 for the company and $17,000 in state fees. It has led to one citation.
Plenty of critics: Despite the undeniable appeal of protecting children from online solicitations for adult products, the registry has created critics on and off of Capitol Hill in nine months of operation.
Free speech advocates have challenged the registry as unconstitutional in a federal court lawsuit. Some critics - including some lawmakers who voted for creating the registry - see it as a money-making scheme that does little to stem the tide of porn.
Contractors who manage the registry for the state are stuck trying to defend their job performance. "The e-mail universe has been the Wild West up to this point. It's been a Superfund site," says Matthew Prince, CEO and co-founder of Unspam. "There is no way someone can force something on you that you don't want to receive. Consumers are going to demand that they have some more control over what comes into their homes.
"This is a train rolling down the tracks and we're trying to hold on by our fingernails," Prince adds.
Armed with a draft bill from Michigan, Prince and his partner Ben Dahl made the case for legislation to former state legislator Mike Styler two years ago. Styler, who now is the state's director of Natural Resources, quickly signed on as the sponsor of similar legislation creating a "do not e-mail" list.
Utah's law prohibits companies from sending electronic messages to an e-mail or text message address that "advertises a product or service that a minor is prohibited by law from purchasing" or is "harmful" to minors. When a request for contractors was issued last summer, Unspam was the only bidder. And the registry was launched in August.
The registry, state Department of Commerce officials decided, only applies to alcoholic beverages, tobacco, porn and gambling. It does not include e-mail advertisements for prescription drugs or body piercing because teen-agers can pay for both, either with a prescription or a parent's permission. And although hotel and rental car companies have their own policies blocking rental to minors, state law does not prohibit someone under 18 from buying such services. So those companies also are exempt.
Companies that sell porn online - the Free Speech Coalition - sued, asking U.S. District Court Judge Dale Kimball last November to declare the registry unconstitutional and stop its operation.
Attorney Jerome Mooney says the law is redundant - Congress already passed the CAN-SPAM Act in 2003 and the Federal Trade Commission rejected such e-mail registries. Beyond that, Mooney says, the law lets Utah regulate interstate commerce for the rest of the country. At its most basic level, the registry is a tax on speech.
"For some people, it was a money thing. They figured they could make a little money. But they sold it to the Legislature as an impediment to the adult entertainment industry," Mooney says.
More mainstream companies are contemplating filing a "friend of the court" brief in the lawsuit. Salt Lake City attorney Randy Dryer represents industry organizations including the American Advertising Federation and the E-mail Service Provider Coalition.
Practical considerations: Utah's registry creates an undue burden on interstate commerce and e-mail marketing, Dryer says. "It would be one thing if they were just trying to stop porn, but they go much further than that. They tread into lawful products and activities."
Critics point out other practical problems with the law: For example, there is no mechanism for removing a child's e-mail address once he or she turns 18 or moves out-of-state. Because the law also prohibits sending advertisements to an e-mail address a child has access to, what would happen to a company that sends an e-mail to a consenting adult who lives with a child on the registry? Would an ad for a time-share condominium in Caesar's Palace violate the law? What about a music festival with a beer company as a corporate sponsor?
Some even question whether the registry could be turned on its head, allowing a skilled hacker to use it to target children's e-mails.
The Center for Democracy and Technology's John Morris said the "do not e-mail" list is unlikely to cut off offensive e-mails - most which are sent from unscrupulous foreign-based porn producers.
"These laws are not going to stop porn spammers. They're overseas. They're not paying attention to Utah's laws. They're not paying attention to the federal law," Morris said.
"The only companies that are going to be paying Unspam rates are legitimate, responsible industries and organizations that don't want to be targeting children anyway. They're targeting people with credit cards."
In its nine months of operation, the registry has led to just one citation. In January, the Utah Division of Consumer Protection fined a Canadian porn company $2,500 for sending an e-mail to a child on the state registry. The company has not responded. And Commerce Director Francine Giani said the state has little recourse. "They're in Canada. They don't care," she said.
Stand by your law: Styler still defends his legislation. He figures because the porn industry is suing, the law must be doing what he intended it to do.
"I'm happy to take on that lawsuit," he says. "The idea those folks would take us on is more proof this is needed."
Lawmakers believe the registry will be more effective if more children are signed up.
During the 2006 Legislature, Price Democratic Sen. Mike Dmitrich sponsored legislation meant to reverse the way the state's fee is charged - making it free for companies to comply and charging companies only when their e-mail list finds a match among the Utah children listed. Dmitrich said his goal was to create an incentive for Unspam to sign up more kids. But he also acknowledges his bill was drafted at the urging of tobacco lobbyists, who complain online tobacco advertisers are bearing the brunt of the cost, as much as 90 percent.
"It's not working like it was set up to do," Dmitrich says.
Draper Republican Sen. Howard Stephenson believes at least 1 million Utah children should be registered. But he said the way the registry operates actually discourages the contractor from signing up more kids because a smaller list is easier to check.
"There's no financial incentive to expand the number of children protected on this list," Stephenson said during legislative debate this year. "The only financial incentive is the size of the list of vendors."
Prince, the Unspam CEO, disputes that. The money raised by Utah's registry is not nearly enough to cover the small Park City company's costs, Prince says. Since the legislative session ended, Prince says, the company's eight employees have gone to children's fairs and the LDS Expo in an effort to put more kids on the registry.
While the lawsuit challenging Utah's registry winds its way through court, lawmakers in other states - including Connecticut, Georgia, Iowa and Ohio - are contemplating similar legislation.
Says Prince: "Our phone started ringing off the hook."