Representatives of the E-mail Sender and Provider Coalition have been having “serious” talks with other marketing and advertising trade associations about possibly suing Michigan and/or Utah to get the states’ so-called child-protection do-not e-mail registries overturned, according to the ESPC’s executive director Trevor Hughes.
The talks come amid mounting concern that porn group the Free Speech Coalition may lose its bid to get Utah’s registry law overturned because the judge in the case, Dale Kimball, may be distracted by the sexual nature of the plaintiff’s business.
“The ESPC is in conversations with a number of other trade associations with regards to separate litigation in Utah or Michigan,” said Hughes. “We need to have confidence that the court is going to see through the distracting nature of the plaintiff here.”
The Free Speech Coalition sued Utah over its registry in November 2005. Mainstream marketers have quietly rooted for the trade group—some even signed an amicus brief supporting the Free Speech Coalition—but have let the porn group lead the charge.
The negative ramifications of pornographers spearheading the effort became glaringly apparent in March, when Judge Kimball ruled the suit would go to trial, but that the registry would remain in effect while the trial took place.
Kimball argued that the Free Speech Coalition failed to show that federal law preempts Utah’s registry because the Can-Spam Act exempts state laws aimed at prosecuting computer crime. “There can be no doubt that the protection of children from sexually explicit materials is such an area,” he wrote.
As a result, marketers are concerned the judge isn’t considering the broader ramifications of Utah’s child no-e-mail registry.
Utah and Michigan passed laws in 2005 allowing parents to register e-mail addresses and other “contact points” on behalf of minors. The laws require marketers who want to include anything it is illegal for minors to view or buy to screen their lists against these registries on a monthly basis for $5 and $7 per thousand addresses checked in Utah and Michigan, respectively.
Though the laws were passed ostensibly to protect kids from online pornography, the statutes are so broadly worded that marketers advertising such innocuous products as rental cars and cell phones could get cited for violating them because minors aren’t allowed to buy them.
“The potential breadth of the applicability of this law is stunning,” said Hughes.
Moreover, if the Free Speech Coalition loses its suit, other states may be emboldened to pass their own child no-e-mail registry laws making who-knows-what illegal to include in commercial in e-mail in those states.
In January 2006 some marketing trade groups—along with a couple civil liberties organizations—filed an amicus brief in the case in support of the Free Speech Coalition.
Signers were the ESPC, the American Advertising Federation, the American Association of Advertising Agencies, the Association of National Advertisers, the Electronic Frontier Foundation and the Center for Democracy and Technology.
Notably absent from the brief was the Direct Marketing Association. The DMA’s president, John Greco, later said that the group did not sign onto the amicus brief because it wanted to avoid the negative press that would probably come with challenging a registry proponents claim was set up to protect children from pornography.
Hughes declined to name the organizations with which the ESPC has been talking about possible litigation.
