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

["John Glube" <jbglube@xxxxxxxxxxxx>]

|-----Original Message-----
|From: Dawn Rivers Baker
|[mailto:editor@xxxxxxxxxxxxxxxxxxxxxxxxxx] 
|Sent: July 6, 2005 6:41 AM
|To: Epub Discussion Group
|Subject: [epub] Re: New MI and UT email compliance laws, July
|1st enacted
|
|At 08:40 PM 7/2/05, you wrote:
|>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two laws are void on there face, having been superseded by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.
|
|The only problem with this, John, is that an opinion letter
|from the Federal Trade Commission won't carry either the
|judicial or legislative authority to overturn the law. The
|FTC might be of the opinion that these two laws are
|questionable or even invalid, but will they file suit?
|That's what's going to be needed here -- taking the thing
|before a judge to get an injunction to stop enforcement and,
|ultimately, to have the laws thrown out as unconstitutional
|and/or superceded by CAN-SPAM.
|
|And maybe I'm wrong, maybe the FTC would file suit against
|the governments of MI and UT ... personally, I think it
|would pay to notify both agencies (Advocacy and the FTC). It
|wouldn't hurt if you had the two of them throwing hissy fits
|at these two state legislatures at the same time.

What is the value of an opinion from the FTC (and Advocacy)
that both laws are superceded by the CAN SPAM Act of 2003?

* Both States are put on notice that the Federal regulatory
agency responsible for administering the Act is of the
opinion that the States interpretation of sub-section 8 (b)
is wrong.

* This provides senders with a legitimate good faith defense
to any State prosecution or private action.

On top of this, if concerned senders take the additional
steps of ensuring that:

* all email addresses are added to their lists through a
closed loop/verified opt-in process;

* all subscribers affirm: (i) they are 18 years of age or
older; (ii) the email address or the domain in the email
address is not a registered contact point; (iii) a minor
does not have access to the email address; and,

* all subscribers agree under the subscription terms that if
the subscribed email address or domain in the email address
is subsequently registered as a contact point, the
subscriber will immediately unsubscribe that email address
from the list;

Then I would suggest the law as framed constitutes an
unreasonable burden on the right of commercial free speech.

In the circumstances, any prudent State prosecutor would be
reluctant to proceed to Court with a prosecution or civil
action against such a sender.

True, the Michigan law as framed creates absolute liability
for senders who fail to scrub their lists.

(The Utah law seems to recognize that a parent can consent
to a minor having access to prohibited content.)

But, on these facts, a Judge is going to be asking some
serious questions of the State's attorney as to why the case
is before him or her.

Judge's don't like frivolous law suits.

People are saying, like it or not this is the law and you must
comply. 

Well, if in the opinion of a competent American attorney,
the law is void or unconstitutional, then you are
legitimately entitled to say, this law does not apply. But,
you need to understand the risk of prosecution and suit, so
that ultimately you may be obliged to defend your decision
before the Courts.

This is a bad law for a number of other reasons:

* There is a significant risk the registered contact points
will end up in the wrong hands.

It is fairly easy for a bad guy to get a stolen credit card,
register a domain, buy or create a harvested list, scrub
this against the State's lists and then ascertain the valid
email addresses which were removed.

* Parents have a certain responsibility to ensure minors
don't abuse the privilege of Internet access to do "bad
things."

* It is wrong to charge senders a fee for list scrubbing
based on the sender's list size.

Most likely the vast majority of email addresses on any
given list are not from within either State.

It would be much fairer to charge a fee based on the number
of registered contact points removed from the list.

* The list of prohibited content is far too broad, given
what a minor can see, view and read in other medium and so
sweeps into its potential ambit those who are simply running
clean businesses.

Prudent senders of explicit sexual content are going to put
a warning notice in the subject line as per the best
marketing practices recommended by the Canadian Task Force
On Spam.

This adds further protection.

Also, like it or not, pitting software programmers, best
practices and laws against teenagers who want to gain access
to sexually explicit content online is a bit of a mugs game.

The best one can do is put in place reasonable pre-cautions,
so leaving the minor with the only choice of lying to gain
access to the material.

What is the benefit of have an FTC opinion, properly
structuring one's affairs and pointing out all the risks?

It then opens the door for discussion.

The ultimate objective? If the State authorities are not
prepared to hold enforcement of the legislation in abeyance
pending amendment, have the States amend the administrative
rules to create a safe harbour for permission based Senders.

Then let senders of UBE bear the expense of fighting the
law.

Should the State's refuse to negotiate, or any proposed
settlement is not palatable, then online publishers may have
no recourse but to consider legal action to defend their
interests, presuming you can find the appropriate parties
with standing.

One additional comment. As a Canadian, I can opine, suggest
and postulate. But, ultimately this is an American problem.

American marketers need to take control of this situation.

If you don't, then ultimately the American marketing
community has only itself to blame for the consequences.

The problem? The DMA's continued lobbying for the ability to
send US government approved grade A unsolicited bulk email
or spam. This simply reflects the reality that spamming is
big business.

The result? A failure on the part of the American marketing
community to coalesce around sound guidelines for permission
based online marketing (and no, I don't mean those suggested
by the Email Service Providers Coalition).

In turn this has lead to well meaning but misguided
regulators and State politicians continuing to attempt to do
something.

One reason I believe that Congress could not pass an opt-in
law in the first go around was the suggestion that the
online community could regulate itself.

Since the Act's passage, spam volumes have continued to
climb, the marketing community remains divided on
self-regulation and efforts to move to email authentication
and sender certification are proving much harder to properly
implement than many people originally thought, while receiving
networks continue to do their own thing.

The initial experiment has failed. It is now appropriate for
online permission based marketers to harness the States
desires for a stronger Federal law and start lobbying the
FTC and Congress to prohibit unsolicited bulk commercial
email, (among other things).

Why? Not because any law that prohibits UBCE will stop spam.
But, without this prohibition, (along with mutual
accountability between senders and receivers) in my view you
do not have the necessary underpinning for a realistic
framework to ultimately bring the problem under control as
some bandwidth providers will feel free to continue to arm
both sides of the war.

John

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