Utah Litigation

The suit was filed on behalf of the sole plaintiff, Free Speech Coalition, by Utah attorney Jerome Mooney of the Mooney Law Firm, and lead attorneys Ira P. Rothken of the Rothken Law Firm and Gregory A. Piccionelli of Piccionelli & Sarno, with assistance from FSC attorneys Jeffrey J. Douglas and Reed Lee.

The alleged purpose of Utah’s Child Protection Registry Act (CPR Act; Utah Code Ann. § 13-29-101) is to protect minors from receiving email messages that promote products or services that cannot be lawfully sold to them and/or contain material that is “harmful to minors,” as defined by Utah (Utah Code Ann. § 76-10-1202(4)). It purports to do this by establishing a “Do Not Email” registry containing email addresses that belong to, or can be accessed by, Utah minors, and by criminalizing the sending of prohibited email to any email address listed in the registry for more than 30 days. It also provides criminal, administrative and civil enforcement mechanisms, and requires email marketers to “scrub” their lists against the registry for a per-scrub fee of $0.005.

Though its purpose is commendable, CPR Act is profoundly flawed in several respects. Most significantly, CPR Act conflicts directly with the so-called CAN-SPAM Act, which was enacted by Congress in 2003 to regulate and standardize email marketing in the United States, and specifically to prevent the unworkable “balkanization” of email regulation, which CPR Act and a similar soon-to-be-enacted law in Michigan exemplify. Indeed, in ratifying CAN-SPAM, Congress considered the creation of a national “Do Not Email” list, and directed the Federal Trade Commission (FTC) to prepare a plan for implementation. The FTC concluded, however, that such a registry was not feasible, would increase the prevalence of unsolicited email messages, and would expose our nation’s children to even more inappropriate content. A close look at CPR Act only validates the concerns of the FTC.

The 39-page FSC complaint identifies several other serious problems with CPR Act, including, but not limited to:

• CPR Act creates a mechanism by which hackers, unscrupulous email marketers or pedophiles could potentially obtain the email addresses of minors.

• CPR Act violates right of free expression protected under the First and Fourteenth Amendments to the U.S. Constitution and the Utah Constitution by treating plaintiffs and other e-marketers differently than other more traditional marketers.

• CPR Act imposes an undue burden on the most responsible e-marketers.

• CPR Act fails to make a distinction between email messages that are truly harmful to minors and legitimate email messages that do not actually harm either their sensibilities or encourage unlawful conduct.

• The cost of “scrubbing” email lists against the registry database on a monthly basis could be prohibitive, leading to a chilling effect on legitimate e-marketing.

• CPR Act does not verify that emails submitted to the registry either belong to or can be accessed by a minor, or verify that the recipients even reside in Utah, thus potentially prohibiting interstate communications outside the state of Utah.

• CPR Act provides no penalties for misrepresentation of the identity and/or location of registered email recipients.

• If other states, such as Michigan, also institute “Do Not Spam” registries, many e-marketers will be forced to self-censor all of their email messages and conform them to the standards of the most restrictive jurisdiction.

• CPR Act imposes criminal, civil and administrative penalties against anyone sending prohibited emails to a registered email address, even if the e-marketer “scrubs” their email list in accordance with the requirements of the CPR Act.

• While the CPR Act prohibits the transmission of email messages that “advertise” products or services which a minor cannot lawfully purchase in Utah, the definition of “advertise” is not defined, and could be construed to include events open to minors but sponsored by companies that sell prohibited goods or services, email ads or newsletters that provide links to prohibited content, or which reference prohibited items, or that relate to prescription drugs, firearms, or any goods and services that may be lawfully acquired by minors with adult consent.

The FSC complaint asks the court to render CPR Act void and invalid, and to order the immediate cessation of the “child protection registry.”

Documents and Links

Text of DoJ Amicus Brief November 3, 2006

FSC Utah Lawsuit Summary

FCS Memo in Opposition to Motion to Dismiss July 31, 2006

FSC Memorandum of Law in Opposition to Motion to Dismiss July 31, 2006

FSC Memo Exhibit A  July 31, 2006

FSC Motion for Preliminary Injunction May 2, 2006

State Repsonse to FSC Amended Complaint April 5, 2006

UNSPAM Response to FSC Amended Complaint March 31, 2006

FSC Second Amended Complaint March 2, 2006

FSC Amended Complaint January 17, 2006

Application to Supply Amici in support of FSC January 13, 1006

FTC Report to Congress on the Effectiveness and Enforcement of CAN-SPAM December, 2005

FSC Utah Complaint November 17, 2005

FTC Analysis of Proposed Illinois Registry October 25, 2005

Utah Anti-Spam Registry Website

Text of Utah Statute

Summary of Utah/Michigan Child Protection Registry Statutes

Article by Brian Livingston on Utah/Michigan Child Protection Registries

Audio: Utah House Debates HR 417 - Amendments to Utah CPR

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