A highly unusual mix of four national marketing and advertising trade groups, and two online privacy organizations have filed an amicus brief supporting a porn group's lawsuit against a so-called child protection e-mail address registry in Utah.
Conspicuously absent from the brief's list of backers, however, is the Direct Marketing Association.
Amicus briefs are filings by groups or individuals who are not a part of a lawsuit, but who believe its outcome will affect them.
Most marketers who use e-mail believe if Utah's registry and a similar one in Michigan are allowed to stand, they may set a devastating precedent that could lead to the destruction of e-mail as a channel for anything inappropriate for minors.
Online pornography group the Free Speech Coalition sued Utah last November claiming its registry law violates the Can-Spam act, which overrides state anti-spam laws. The group also claims that Utah's law unconstitutionally interferes with interstate commerce. The group is also expected to sue Michigan.
Groups signed onto the brief supporting the Free Speech Coalition are the E-mail Sender and Provider Coalition, 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, according to a joint announcement released yesterday.
One well-placed source, who asked to remain anonymous, said the DMA did not join the other trade groups because it was squeamish about publicly supporting a pornography group and that it wants to avoid a debacle similar to the defeat suffered on the national do-not-call list.
Lou Mastria, vice president of interactive and emerging media for the DMA, New York, denied that his organization is squeamish on this issue. He said the DMA typically doesn't file amicus briefs on the trial court level, but does so on the appellate level.
“We're not going to go into something just because some other folks did or some other folks didn't, or the history or whatever,” he said. “We're going to do it based on the merits of the case and the best way to proceed, and right now we believe the best way to proceed is to hold our powder until the appellate court.”
Mastria said the DMA's position is based on advice from its attorneys.
When asked to respond to the possibility that some might interpret his organization's failure to sign onto this effort as a signal that the DMA isn't prepared to fight for its members, Mastria said, “I think that's unfair, when you look at who has been monitoring this and dealing with some of the questions from some of our members long before anybody else, it's been us. Last summer, before any of this made major news coverage, we were out there with advice to our members on how to deal with this. … We believe that holding our powder dry for the time being makes the most sense.”
Mastria said the DMA has also been lobbying against the registries on the state level “for some time about this.”
Utah and Michigan last year passed laws establishing registries that allow parents and guardians to list minors' e-mail addresses and other “contact points” as off limits to e-mail containing material or links to material illegal for minors to view or buy.
Marketers of material inappropriate for minors are supposed to scrub their lists against the registries once a month for $5 per thousand names checked in Utah and $7 per thousand names checked in Michigan.
A similar law has been proposed in Georgia. Another is expected to be proposed in Illinois by Friday.
