[epub] MI & Utah Child Protection Registry Law (More)

["John Glube" <jbglube@xxxxxxxxxxxx>]

On Friday, the US Federal District Court, Southern District
of New York upheld the constitutional validity of 47 U.S.C.
§ 223 - <http://tinyurl.com/dfw9t>

You can find a copy of the decision here:
<http://wendy.seltzer.org/media/nitke_v_ashcroft.pdf>.
According to press reports, the plaintiffs have vowed to
appeal.

Under this section you can go to jail for up to 2 years for
*knowingly* sending obscene or pornographic material over
the Internet to a minor. This would include sending
commercial e-mail with adult content, or an e-mail
containing links to adult content.

Also, the FCC can come after you civilly, obtain an
injunction to shut you down and seek civil fines of up to
$50,000 a day for each violation.

But, the section provides a defence where you have taken in
good faith, "reasonable, effective, and appropriate actions
under the circumstances to restrict or prevent access by
minors to a communication" ... or you restrict access by
requiring "use of a verified credit card, debit account,
adult access code, or adult personal identification number."

(Interesting ... in the Reno case, the Trial Court found
there were no reasonable technical measures. Roughly 10
years later in the Nitke case, the Fed's experts said yes,
Nitke's experts said no and the Court dodged the issue.)

Of course, the FCC may describe measures which are
"reasonable, effective, and appropriate to restrict access"
... but to my knowledge there is nothing on the books.

So what, you say? Well here is the kicker provision:

|No State ... government may impose any liability for
|commercial activities or actions by commercial entities,
|nonprofit libraries, or institutions of higher education in
|connection with an activity or action described in
|subsection (a)(2) or (d) of this section that is
|*inconsistent* with the treatment of those activities or
|actions under this section:

(Emphasis added)

Of course, there is a proviso:

|Provided, however, That nothing herein shall preclude any
|State or local government from enacting and enforcing
|complementary oversight, liability, and regulatory systems,
|procedures, and requirements, ... as long as they ... govern
|only intrastate services and do not result in the imposition
|of inconsistent rights, duties or obligations on the
|provision of interstate services.

Hmm ... and ...

|Nothing in this subsection shall preclude any State or local
|government from governing conduct not covered by this
|section.

The bottom line? Are the state laws passed by MI & Utah
inconsistent in the way they treat the sending of commercial
e-mail to minors with adult content or links to adult
content with the Federal law?

Let's see ... the Federal law requires the person acted
knowingly ... while the state laws impose "strict
liability."

The Federal law provides for the *good faith, reasonable
measures defence* ... the state laws require all senders to
scrub their lists and pay the equivalent of a local tax
monthly.

Now, the States can pass laws governing "other conduct." 
But since the fees imposed strike me as being
"discriminatory taxes on electronic commerce" you run smack
dab into the 'Internet Tax Freedom Act' as extended.

Besides, why pass a "Child Protection Registry Law" (a
Do-Not-E-mail List for minors), if you can't say "no obscene
or pornographic commercial e-mail to minors?" 

Unless you know the law is likely going to be struck down 
and you are just making a political statement.

I could be reading this all upside down and I ain't no
Yankee lawyer, but it all seems very strange to me ...

John

P.S. Here is what the DMA's lawyers have to say about all of
this:

http://www.the-dma.org/cgi/dispnewsstand?article=3888+++++

Rendered by the firm of Piper Rudnick Gray Cary LLP which
provides legal counsel to many direct marketers.

(I notice there is no real discussion of the obscenity and tax
arguments. Hmm ... Up their sleeve perhaps?)

John Glube
Toronto, Canada

http://www.learnsteps4profit.com/rbn.html