HOW TO: Chill Speech and Association While Endangering Children
If you had to disclose to the government everyone whom you planned to email so that it could cross names off your mailing list, you might be less likely to speak in the first place. You'd be further chilled if you had to pay a fee so that the government could silence your speech, and, if you didn't comply, face jail.
Welcome to Utah and Michigan. As we discussed earlier this week, these states are building "do-not-send" registries of childrens' email addresses. Covering email as well as instant messaging, phones, and faxes, the underlying laws prohibit advertising products and services that minors are not allowed to buy unless you also allow the government to check the receiver's address against addresses in a special registry. These laws also tax speech, forcing senders to pay a small fee per recipient email address.
These laws won't just affect spammers. Their dangerous over-breadth threatens all kinds of commercial marketers and others who send email newsletters and other types of mass email. Read on -- if these laws sound like they might directly affect you, EFF wants to hear your story.
The Utah and Michigan laws aim to squelch speech involving the usual panoply of sin: adult material, gambling, alcohol, tobacco, and firearms. But the expansive definitions encompass all sorts of communications that the state hardly needs to babysit. The Michigan law bars sending email that advertises anything "a minor is prohibited by law from purchasing, viewing, possessing, participating in, or otherwise receiving." The state has myriad laws relating to minors, including laws prohibiting going to tanning salons without parental permission. Home to the automobile capitol of the world, Michigan explicitly prohibits ads about purchasing cars without checking the list.
Utah cuts an even broader swath, prohibiting any communication to registered people that contains material "harmful to minors." The Utah Attorney General has an expansive understanding of that term, and the law does not even require a commercial intent. While Michigan limits its law to goods and services that are "otherwise a crime" for the minor to purchase, Utah's covers the broader category of anything a minor is "prohibited by law" from purchasing.
On its face, Utah's law could encompass services such as body piercing (requires parental consent), hotels and credit cards (minors can't contract) or car rentals (minors don't get a full license until 18). While the Utah Division of Consumer Protection has adopted an interpretation [PDF] that may exclude these activities, interpretations and policy statements blow with the everchanging political winds.
These laws won't just affect typical commercial entities. Even a book group with an email newsletter advertising a Robert Mapplethorpe book or a MeetUp group notifying members that the next meeting is in a bar might qualify under these laws. A particularly pernicious possibility would be for an aggressive state Attorney General to reinterpret these laws to crack down on organizations like Planned Parenthood, which may send information about abortion services. After all, in both Utah and Michigan, a minor is not allowed to obtain an abortion without parental consent.
So who benefits from these laws? Not parents and children, for most spammers will simply ignore the lists or even exploit them to determine that an email address belongs to a child. But the Unspam Company, which has patented a "secure no-spam registry" technology and operates the registries, will reap windfalls. Not coincidentally, Unspam helped draft these laws.
Parents are already being encouraged to register their children's contact information with the state, but as we already pointed out,? the email registry is as likely as not to expose children to more unwanted spam or other email from unscrupulous parties. Despite these concerns, Michigan's registry went live on July 1st, while Utah's has been delayed, but is coming soon.
That means these misguided laws are already threatening your free speech rights, while doing little if anything to protect children (and indeed, may even harm them). We hope to put a stop to that. If you think these laws might impact something you do, please send us your story.