[epub] Re: New MI and UT email compliance laws, July 1st enacted

["John Glube" <jbglube@xxxxxxxxxxxx>]

Excuse the top post.

Both laws speak to a minor, which is someone under 18.

This message is going to be a bit long.

I apologize in advance.

First of all, I suggest people read the law:

Michigan:

- The Statute

<http://www.legislature.mi.gov/documents/2003-2004/publicact/htm/
2004-PA-0241.htm>

- The Administrative Rules

<http://www.state.mi.us/orr/emi/admincode.asp?AdminCode=Single&Ad
min_Num=48400501&Dpt=LG&RngHigh=>

Utah

- The Statute:

<http://www.le.state.ut.us/~code/TITLE13/13_26.htm>

What is the problem?

The problem is that these laws involve a concept known as
absolute liability.

What?

Consent is not a defense. The only way to comply with these
laws is to scrub your lists against the registered email
addresses and domains.

This means what?

Running a closed loop verified opt-in list requiring
subscribers confirm they are over 18 and that no minor has
access to the subscribed email address is not a defense.

Yup. That's right. Presuming these laws are valid:

* If email sent to your list contains ads for prohibited
content, or links to prohibited content (direct or
indirect),

* You don't scrub your lists (monthly at 7/10 of cent in MI
and 1/2 cent in Utah per email address based on your list
size),

* Your message is received by a registered email address,

* You are civilly and criminally liable.

Mind you, if you run a double opt-in list with a cherry on
top, presuming the law is valid, I doubt a Court would do
anything more than slap the publisher on the wrist and say
"bad."

But that is not the point. Why should the law go after the
good guys?

What To Do?

As an e-zine publisher you have 3 options:

* Not publish an e-zine which contains advertisements or
promotions for prohibited content, either directly or
indirectly.

(That could be difficult, given how the Net works.)

* If you decide to support your e-zine with advertisements
or promotions for prohibited content, either directly or
indirectly, scrub your lists.

* Fight back.

As to Fighting Back

* Some have suggested marketers lobby your local elected
officials not to pass similar laws in their State.

* Others have said let's get the Federal office of Small
Business Advocacy involved to advocate on our behalf.

My preference? Get an opinion letter from the Federal Trade
Commission confirming what I believe is correct, that these
two laws are void on there face, having been superseded by
the CAN SPAM Act of 2003. They are null and not law.

Why? Then you have a good faith defense to any MI or Utah
State or private action attempts to enforce these laws.

Also, this would take the wind out of the State's sails. The
registries are self funding. No State funds are budgeted to
support the registry system or law enforcement.

But this is only an interim solution.

What is the real problem?

On December 16, 2003 President Bush signed into law the CAN
SPAM Act of 2003. Simply put, in my view this is a bad law.

As long as this is the law of the United States, online
marketers and publishers are going to be confronted with
American States wanting to take control.

I suggest people visit <http://www.unspam.com> as both
registries are being run by Unspam Registries to understand
the real thrust behind the State Legislation.

Last June, the FTC told us a do not email registry system
won't work.

What did the American marketing community do? Sighed a big
sigh of relief.

In retrospect this was the wrong response.

The American marketing community needs to stand up and say
to Congress we want you to prohibit the sending of
unsolicited bulk email (if not that, at least unsolicited
bulk commercial email).

We want you to pass a realistic and enforceable law as was
done in Australia which establishes a legal framework that
supports measures by all stakeholders that can be taken to
actually bring UBE ("spam") under control.

We want you to do this, because we want to save email as a
viable means for commercial communication.

We want you to benefit from what is now being proposed in
Canada.

<http://e-com.ic.gc.ca/epic/internet/inecic-ceac.nsf/en/h_gv00317
e.html>

We don't want a law that permits mailers to send Government
approved grade "A" spam and lets back-bone providers sell
bandwidth to these mailers.

The American marketing community needs to stand up, take
control of the situation and advocate real solutions.

Not phony ones like the CAN SPAM Act of 2003.

Until this happens, elected officials will continue to be
badgered by citizens to do something. 

Keep in mind, Unspam is using a very disturbing problem to
advocate its solution. The problem? Children receiving
unsolicited bulk email promoting adult content.

This is a policy position which is hard to fight, unless you
are prepared to put forward a truly just position.

The just position?

* Among other things, a law which prohibits the sending of
at least Unsolicited Bulk Commercial Email. That makes this
specific prohibition a civil regulatory offense, with a
reverse onus evidentiary presumption.

Don't want this?

* Enjoy a law which allows for government approved grade A
spam and lets backbone providers and others sell bandwidth
to spammers.

Interestingly, the FCC has said you can only send commercial
email to wireless machines with affirmative consent,
requiring proof by closed loop/verified opt-in.

But since the Act does not prohibit UBCE, the FCC has also
established a domain wide do not email registry, and that US
government approved grade "A" spammers must remove all email
addresses with these domains from their lists.

- John

John Glube
Toronto, Canada
http://www.learnsteps4profit.com/emgr.html