Monday, February 16, 2004

Lawmakers in Utah and Michigan are pushing legislation that would create a do-not-spam registry designed to protect children from inappropriate e-mail and text messages.

The lists, similar to the popular national do-not-call registry designed to fend off telemarketers, would allow the states and individuals to pursue legal action against anyone who digitally sends certain materials to children whose contact information is on the list.

Any e-mail address, cell-phone number or instant messenger screen name accessible by children would be eligible for the registries. Anyone who sends advertisements to the addresses for products that a minor cannot legally buy, such as cigarettes, alcohol or gambling products, would be in violation. Pornography or other material that violates state obscenity or indecency laws also would apply.

The texts of the Utah and Michigan bills are similar, as legislative staffers from each state consulted with many of the same legal specialists, as well as one another.

Utah’s House Criminal Justice Committee voted unanimously last week to move a child-protection registry bill sponsored by Republican Rep. Michael Styler to the House floor. Michigan Sen. Mike Bishop, a Republican, is expected to present a registry bill to his state’s Legislature as soon as today.

Under Utah’s bill, violators could be fined up to $5,000 for each offense and sued for up to $1,000 for each violation. Anyone violating Michigan’s law would face a fine of up to $10,000 for each offense and one year in prison. Repeat violators could see up to two years of jail time and a $25,000 fine. Anyone breaking the law also could be sued for $5,000 for each offense or $250,000 for each day the offense occurred, whichever is lesser.

Lawmakers said the registry is a necessary tool in the fight against unwanted e-mail, or spam, which makes up more than 60 percent of all e-mail and often contains pornographic images.

“Spam is more than a bother. … A lot of people I know have changed e-mail addresses or don’t even use e-mail anymore,” Mr. Styler said. “People are getting angry.”

Legislative staffers in both states view the child-protection registry as an end-around the recently passed Can Spam Act, a federal antispam law that pre-empts any state law designed to regulate e-mail. Lawmakers in Michigan and Utah said the child-protection registry proposals would withstand a pre-emption challenge, because they address not only e-mail, but also cell-phone numbers, instant messenger screen names and any other method by which a child can be reached digitally.

“This allows states to regain control over the moral authority of the Internet, which they had ceded up until this point,” said Matt Prince, chief executive of Unspam, a Chicago company that has developed technology to build the registry, and who acted as a consultant to legislators in both states. “It focuses on the worst aspects of the problem and the most vulnerable users.”

State lawmakers said a registry should not be viewed as a new regulation, but as a tool to enforce existing laws that forbid anyone from distributing certain materials to minors.

“There’s likely to be a challenge, but I think it’s likely to be defeatable now,” said Utah Attorney General Mark Shurtleff.

Even if the bills are not pre-empted by federal law, they could face stiff opposition from some marketers who object to the bills’ proposal to allow individuals to sue spammers, out of fear that they would be dragged into frivolous lawsuits.

Utah’s previous antispam law, which was repealed last week, allowed for lawsuits against spammers and resulted in thousands of class-action lawsuits against legitimate marketers and Internet service providers who did not send spam.

The Direct Marketing Association (DMA) issued a statement last week opposing an individual’s right to sue spammers, arguing that legitimate marketers would be subject to lawsuits.

“Private right-of-action does not reduce the volume of spam and, in fact, potentially creates new tiers of victims,” wrote Jerry Cerasale, senior vice president of the DMA. He said a private right of action would allow people to “use their rights to spend money and sue against the wrong individuals.”

Utah’s version of the legislation would require anyone who loses a lawsuit to pay for legal costs and attorney’s fees of the winning party. In theory, lawmakers said, this would act as a deterrent for anyone who brings a frivolous lawsuit. Michigan is considering including a similar provision, but it has not been included in the most recent draft of the bill.

The Utah and Michigan proposals have not faced stiff opposition in their legislatures, and are not going up against competing proposals. In both states, spam has been labeled as one of the top 10 consumer complaints.

The Federal Trade Commission is working to develop a federal do-not-e-mail list, though it is not clear whether the agency would be able to implement it. Critics have argued that a registry would be difficult to enforce, because most of the worst spammers hide their identities by illegally routing their e-mail through computers that aren’t their own or by sending messages from overseas, where U.S. laws do not apply.

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