Perspective: Why ribaldry could earn you prison time

Send a raunchy e-mail to a minor, and you may wind up in jail.

That's the thrust of a new law about to take effect in Utah and Michigan that could become a harbinger for the rest of the nation.

Starting Friday, parents in those two states will be able to add their children's e-mail addresses to a "do not contact" registry. Anyone who goes ahead and sends e-mail deemed to be off-color or "harmful to minors" could be imprisoned for up to three years.

The idea sounds wholesome enough, but it could snare legitimate Internet companies who rely on e-mail to contact their customers. Critics say it could capture discussions or advertisements relating to homosexuality, alcohol, sex, cigarettes, certain pharmaceuticals, gambling and more.

"Nobody knows these laws are there," said Anne Mitchell, president of the Institute for Spam and Internet Public Policy (ISIPP). "The businesses we (informed) are absolutely in a panic. There are many senders this affects very seriously."

The text of the law is hardly clear, but it seems reasonable to conclude that...the DMCA should not apply.

Though the registries in Michigan and Utah differ slightly, the general approach is the same. The registries will begin by gathering together children's e-mail addresses. Eventually, instant-messaging screen names, telephone numbers and other "electronic addresses" are supposed to be added.

Schools and "other institutions or entities" serving those under 18 years old may place their entire domain name in the registry. If Utah's Ogden City School District chose that option, for instance, no off-color e-mail to any ogden.k12.ut.us address would be permitted.

You can check whether someone's on the list by paying a fee. Michigan is expected to charge 0.007 cents and Utah 0.005 cents per verification--meaning that the monthly fee would be $120 to keep a million-person mailing list scrubbed and current.

Rather than make the entire database available to potential spammers, the system is supposed to only confirm or deny whether addresses are on the list. Dennis Darnoi, an aide to Mike Bishop, a Republican state senator in Michigan, said that residents can sign up through the official state Web site starting Friday. Michigan's restrictions on e-mail senders take effect a month later. (Representatives in Utah didn't return phone calls.)

Violations of both the Michigan and Utah laws can be punished with civil fines and criminal prosecutions. Michigan treats it as a computer crime and permits lawsuits to be filed by aggrieved Internet service providers, end users and the attorney general.

"Horribly written" laws
What worries companies that rely on e-mail is that it's not clear what an aggrieved parent or ambitious prosecutor might deem "harmful to minors." One federal appeals court ruled that gay-themed publications, sex education sites and even Salon.com could fall under that umbrella.

"Both of these laws are horribly written," says Mitchell, the ISIPP's president. "Nobody's really clear about what's permitted or unpermitted." Her group, which runs a reputation service for e-mail senders, has organized a telephone seminar this week to explain the laws to e-mail marketers.

One major difference between the two states is that Michigan's rules apply only to advertisements. Utah's law regulates even noncommercial correspondence with off-color material--a requirement that could technically trap someone sending a dirty joke to an unmoderated mailing list with a registered minor on it.

That shotgun approach worries the American Civil Liberties Union, which questions whether the law violates the First Amendment. "You don't have the same governmental interest across the same spectrum of minority ages," says Marv Johnson, a legislative counsel for the ACLU in Washington, D.C. "What may be inappropriate for a 5-year-old may be appropriate for a 17-year-old. Older minors may well have an interest in this information."

Johnson also pointed to a June 2004 report by the Federal Trade Commission, which unanimously concluded that a "do not e-mail" list would be a bad idea. For one thing, any e-mail registry can't stop overseas or illegal spam.

Even placing First Amendment concerns aside, it's not clear whether the state laws could survive a legal challenge. The federal Can-Spam law was designed to zap any state law that "expressly regulates the use of electronic mail." In other words, Michigan and Utah parents who joined the registry may find it doesn't survive very long--if it even worked at all.

Biography
Declan McCullagh is CNET News.com's chief political correspondent. He spent more than a decade in Washington, D.C., chronicling the busy intersection between technology and politics. Previously, he was the Washington bureau chief for Wired News, and a reporter for Time.com, Time magazine and HotWired. McCullagh has taught journalism at American University and been an adjunct professor at Case Western University.

More Perspectives

[ajbright]

Don't care. Screw em

I couldn't care less if so-called legitimate businessmen went to jail for accidentally sending emails regarding gambling, pain pills or Jenna's juicy jubs to a minor.

Although it does seem daft that certain computer crimes seem to carry stiffer sentences than some rapists and drunk drivers get - mostly because the media hype up a kid's misadventures into copycat virus land - but in the end who cares.

If it takes sending a few of those pricks that fill up my inboxes with so-called legitimate spam to prison for a few years to stop them, then I'm quite happy to see a few go down for accidentally marketing to kids instead of adults.

I don't even care if it's not their fault that they have been duped by kids posing as adults to gain access to sites that they shouldn't.

The more that get scared out of business the better.

Screw the lot of them. Now if we could somehow include in this the gits that have started the anti-smoking jihad on TV, and the drug dealer politicians (getting someone addicted to a substance then raising the price is a classic tactic used by crack and heroin dealers, politicians who use the BS argument that cashing in on a smoker's addiction by raising cigarette taxes are no different from any other drug dealer), then that would be cool too.

Normally I'm a liberal thinking person, who doesn't want to see media frenzied BS resulting in the banning of video games or allowing right wing extremists to shut down a public TV network because it might have employed a Kerry supporter who expressed his personal, political opinion once on another network.

But in this case, I just don't care.

As I said, I'm so pissed off at the daily dredge through my inbox, that I think the idea of accidentally sending some spammers to prison because they accidentally targeted kids is poetic justice.

[TV James]

Right on.

"They don't know about these laws." is not a valid excuse.

If necessary, a warning period. Of course, we all know that's useless since the e-mails always come from bogus e-mail addresses.

As soon as they open it up to California, I'm putting all my addresses on it. Just because I'm over 18 doesn't mean I should be subjected to this crap, either.

[DaveExNav]

RE: Don't care. Screw em

Congratulations!! Remember that slightly off color joke that had you rolling on the floor and you forwarded to a few internet friends? Well it turns out one of them has a son just a tiny bit under the age limit and lives in Utah. That son read dad's email which included YOUR email and you are now in violation of the law!

This is about a LOT more than the viagra spam we all hate, it includes ANY fom of electronic communication, ads, email, IM, and could be extended to technically include any form that may be developed in the future. This doesn't even address the issue of "he subscribed", or "we send this stuff to each other all the time". Even though it was dad's email there was a minor involved, what dad wants to read has no weight here, it wasn't dad reading it was his minor son. Dad may be responsible for his son's behavior, but YOU are the responsible party according to these laws if his son reads them.

Scew em all huh?

If a few good people land in jail to get the spammers is OK as long as you are not inconvenienced by having to wade thru all the spam in your inbox?

I addressed the same issue last week by using a approved senders only list. I'm sure your ISP offers one. You might educate yourself about the technology available before offering up a few sacrificial lambs

What about the bigger issues at stake here like the 1st amendment, not to mention innocent folks landing in prison for violating some obscure draconian law written by the current theocracy we have in this country. Man...this is scary stuff and your post is irresponsible and selfish.

Sincerely
John

Guilty!

The content of your message contained a couple of comments that they might construe as offensive.

... If it takes sending a few of those pricks ...

... Jenna's juicy jubs ...

I hope your comment isn't seen by a minor in Utah or Michigan!

[RavingEniac]

Recess, the school bus and spam

Recess, the school bus and visiting in nonschool hours is where they'll trade raunchy jokes, I guess. The constipated legislators who think they can preserve the delicate ears of dainty babies under 18 are listening far too much to the 700 Club. Ribald jokes and sex aren't what make a person good or bad---the entire body of thinking in Christendom about sex and bodily existence ought to be ripped out of religious books and symbolically burned as a sign of repentance for hating the human nature God created.

But the previous comments do note that spam is still an epidemic, though there were a couple of publicized spammer busts a year and a half ago. There's a federal law to act against spammers. Why isn't the Bush administration applying it? Do they LIKE spam? Other countries may have spam laws too, but since those spam busts it's back to the spam business as usual.

If you hate spam that much

Put sh itloads of underaged peoples' email addies on different lists. If you do that with emails from a backwards state like Utah, those parents will sue. You will do the world a favor.

On the other hand, subscribing to news alerts and the like from news sources will also get sued as soon as a story comes across about gay people. You guys are thinking very narrowly. These laws could destroy email as we know it. Last time I checked, [e-mail] doesnt have a state associated with it.

[My-Self]

Dumb and Dumber ...

Bluvein Throbbe wrote:
> Last time I checked, [e-mail]
> doesnt have a state associated with it.

Maybe some dumba55 in Utah need to craft a new law making it mandatory to give them 0.007$ to check the state sending an email to any address ;-)

Do Not Contact List & Hackers?

I would have some real concerns in putting such personal and direct contact information about children, in such, a listing. We have discovered numerous breakins by hackers to accomplish ID Theft and reports of criminals working with hackers for profit. Can these State's absolutely protect this information from such action?

[Razzl]

Feel-good legislation

I'm glad the usual watchdogs are on their toes and keeping us informed of the potential pitfalls to this type of legislation, but frankly, I'm not worried about any practical effect. I've never received email advertising from any legitimate company that contained anything which could be construed as off-color, so good luck even finding a test case. The first complaint involving a first-amendment issue such as open discussion lists would prompt a federal court to trash this law, and the attorneys general of those states would know that, so presumably they would be a little selective about applying it.

It would be worth pointing out that liquor store owners in some states have sued minors for their losses caused by the minor using false pretense to obtain liquor and causing enforcement action against them. The parents of Buddy and Sue might find themselves facing their own day in court if they try bring action against a discussion group for including an unidentified minor...

Such Laws are likely to be ignored

Since many will be unaware of such laws, and others will be unconcerned, they are likely to be ignored, in my opinion. It is doubtful that either Michigan or Utah have sufficient enforcement capacity to have much effect, let alone the fact that such laws are probably ultra vires.

unattended kids let loose on the internet

For all those parents out there in the states who want to enforce this legislation , would it not be wiser to teach your kids how to set up a spam filter and govern their usage online .
I feel that parents should take a more active roll in their childrens computer use and while you are about it take a course yourself.
Spam is the scourge of the modernday internet and i hardly think implementing some draconian mesures which will clog the usage of the internet in these states and adopting the holier than thou attitude realy makes any sense.

Kids are smarter than you think and should be taught sensible rules pertaining e-mail and surfing.

Is it not just a case of getting the state legislator to do something about the fact that parents do not spend enough time with their kids ,especially behind a computer?

Why not bludgeon that acorn with a steanhammer??

bwt i also have 2 kids who are not yet in their teens and i have no problems with what they do here in holland on their computers.

get your heads out of the sand ,come up and smell the roses

Dismayed

[My-Self]

Children database ...

By substracting the scrubbed list from the raw list, it's easy for telemarketers to build a "100% underage" targetted list, either to spam them with a barrage of legal, non infringing (but just as annoying) spam, and even resell the lists to offshore spammers and send them ... mor porn spam !

Fortunately, it will simply be ignored.

Those stupid lawmakers !

Yea they could

They could charge someone for breaking their laws living outside of their state. They would try to extradite you to their state to stand trial.

This is very similar to the spam laws passed in NY and other states. By sending an email to a minor in those states, you are in effect breaking the law in those states.

People had better hope their home state will stand up for them and ignore the extradition.

The fed law may not supercede this law. You had better consult a lawyer before sending junk to people in those states.

Cost in the article is WRONG

It is $.007 each. A million email addresses will cost $7000 every month if you send regularly.

$7000 is only for Michigan.

Utah would be an additional $5000 so it would cost $12,000 to scrub a million email address list - every month if you send regularly.