A couple of comments. But, before I start hi all, as this is my first post to this forum.
Hmm ... I suggest people read the actual laws and codes.
* Michigan
http://ssl.csg.org/dockets/26cycle/2006 ... 6a04mi.pdf
http://www.state.mi.us/orr/emi/admincod ... G&RngHigh=
* Utah
http://www.le.state.ut.us/~2004/bills/h ... hb0165.pdf
The Contact Point for Utah:
http://www.commerce.utah.gov/dcp/education/utcpr.html
* Both the Utah and Michigan state laws expressly regulate commercial email.
Legislative counsel for Utah acknowledged as much in his briefing note to the State legislature at the time the legislation was being considered. I quote:
"This bill regulates among other things, the sending of certain commercial email messages to addresses contained on a registry. Congress recently passed the CAN SPAM Act of |2003 that with some exceptions, preempts a state from regulating commercial email. The Act permits state regulation of commercial email that:
prohibit falsity or deception
are not specific to email; or
relate to acts of fraud or computer crime.
If this bill were challenged, the court would evaluate whether this bill falls into one of those exemptions."
The Sponsoring Senator in Michigan also claims this position.
http://www.michigan.gov/cis/0,1607,7-15 ... --,00.html
* With all due respect to legislative counsel for Utah and Michigan, in my view, the position taken is simply wrong.
I suggest there is no ambiguity in the language of sub-section 8 (b) of the .
"(b) STATE LAW-
(1) IN GENERAL- This Act supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto.
(2) STATE LAW NOT SPECIFIC TO ELECTRONIC MAIL- This Act shall not be construed to preempt the applicability of--
(A) State laws that are not specific to electronic mail, including State trespass, contract, or tort law; or
(B) other State laws to the extent that those laws relate to acts of fraud or computer crime."
A plain reading makes it clear that all State laws which expressly regulate commercial email are superceded, except to the extent that the State law prohibits falsity or deception in the headers or message itself.
(Don't misunderstand my position. I happen to think the Federal legislation is bad law - see
http://www.i-cop.org/Submission-in-Response-to-NPRM.pdf.)
However, we must understand that as long as the American marketing community is seen to support opt-out marketing, we will continue to see efforts by well meaning individuals in various States to pass laws which are perceived to have more bite, but will likely end up causing more harm than good.
Both laws are purportedly designed to combat spam, which is unsolicited bulk email, targeted to minors.
The Utah law states that the minor's consent is not a defense to sending e-mail containing prohibited content [1] to a registered contact point.
The Michigan law goes further and states that the minor's or their representative's consent is not a defense.
What does this mean?
Presuming the laws are valid, this means it is a computer crime in Utah and Michigan to send solicited bulk email that advertises or promotes prohibited content to a registered contact point, even if the marketer has structured his affairs so that the list is closed loop/verified opt-in and the recipient of list mail affirms at the time of subscribing he or she is over 18.
According to both laws, despite a *list administrator who sends solicited bulk email that promotes or advertises prohibited content having taken reasonable precautions to prevent minors from being on his mailing list* the only way to comply is to scrub that mailing list on a monthly basis against the list of registered contact points, paying a fee based not on the number of registered contact points removed from the list, but based on the size of the sender's list, irrespective of whether these email addresses are located within or outside of the applicable State.
(Fascinating that the American Direct Marketing Association finds no problem with these laws. Why? Do not email lists are proposals supported by opt-out marketers as this approach allows for spamming.)
In addition to the underlying issue as to whether these laws have been superceded by the CAN SPAM Act of 2003, in my view, these laws *smack* of being an unreasonable burden on the constitutional right of commercial free speech. [2],
Top this off with the significant risk of registered data ending up in the hands of the bad guys, including pedophiles and spammers, so resulting in more UBE of the worse sort ending up in children's e-mail boxes and you have the potential of a real boondoggle in the making.
Please note, I am not a lawyer. I am a business person with a law degree.
People need to consult with competent counsel. In that regard, I have suggested that the American online marketing community should ask the FTC for an advisory opinion. Presuming the advisory opinion states that the CAN SPAM Act of 2003 supersedes both the Utah and Michigan laws, this would provide a good faith defense for anyone who falls within the opinion's scope.
For myself, my mailing lists are closed loop/verified opt-in and it is a term of my privacy policy that you must be 18 to subscribe.
I am personally satisfied that both laws are superceded by the applicable Federal statute and in any event, in my case would constitute an unreasonable burden on my commercial free speech rights. As such, I will not be scrubbing my mailing lists with registries in Utah, Michigan or anywhere else for that matter.
Trusting this helps.
John
John Glube
Toronto, Canada
[1] Prohibited content includes an ad or promotion for pornographic or obscene material, alcohol, tobacco, firearms, illegal drugs, gambling and lotteries (there is some question as to whether minors can gamble or play the lottery in Utah. Not so in Michigan.)
Under both laws:
* The message does not have to be sent in bulk;
* The contact point must have been registered for more than 30 calendar days;
* The message can contain the ad or promotion or link to a page which contains the ad or promotion;
* The ad or promotion must be for a product or service that a minor is prohibited by law from purchasing.
I am summarizing. You will need to read both laws for the exact details.
[2] I am not suggesting that the right of commercial free speech means you can send UBE. Far from it.
My own view is that online, the state can reasonably limit the right of commercial free speech by prohibiting unsolicited bulk commercial email.
But, in this case, in my view both State laws impose an unreasonable burden on a solicited bulk mailer or online publisher who is taking reasonable steps to ensure that only adults are list members.
