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07/15/2005 Archived Entry: ""

I received an email copy of "The Laws of Unintended Consequences" -- an entry in the Bakel Blog. I presume the email was, in part, to inform me that my letter suspending publication of the ifeminists.net newsletter had been linked within the text. (For that letter see McBlog entry (07/13/05). BTW, i am currently receiving legal advice on this "case" and I will keep people informed if anything develops.

The full text of the Bakel Blog entry can be accessed by clicking on the first link in this entry or by clicking on "more".

New state laws allow parents in Utah and Michigan to put their children's e-mail addresses on a "do not contact" list. Anyone who sends "harmful" e-mail messages to those kids could be imprisoned for up to three years.

Sure, spammers are lower than pond scum, and I wouldn't want them anywhere near my daughters either - especially if the e-mail messages in question are pornographic, as way too many are. But what, other than that, is clearly beyond the pale - and legally actionable? Is 'harmful' the same as 'gross' (and if so, would a fart joke be enough to send the cops to your door)? Is 'harmful' the same as 'inappropriate'? Who gets to decide where to draw the line? And even if we could somehow agree on that, is something that's harmful to a three-year-old also a threat to the sanity and well-being of a sixteen-year-old?

"Both of these laws are horribly written," says Anne Mitchell, the ISIPP's president [ISIPP is the Institute for Spam and Internet Public Policy]. "Nobody's really clear about what's permitted or unpermitted."

Inevitably, some legitimate mass e-mailers, including those who send e-newsletters to large groups of recipients, aren't taking any chances. They've decided to stop issuing their digital dispatches altogether.

E-newsletters ... are not permitted to send to registered email addresses if those newsletters include URLs to news sites that, in turn, link to child-inappropriate commerical information or products such as casino or Viagra ads, tobacco or alcohol for sale. Many credible news sources - especially British ones, it seems - offer links to adult-themed sites or products. These links can change constantly, which means that it is impossible to check a URL and "clear" it of so-called objectionable links or ads.

Most of these e-mailers aren't the least bit interested in sending their messages to kids - they're instead serving an audience of grown-ups who've signed up for the newsletter service. Still, it's always possible that some kids' addresses ended up on the list (perhaps little Johnny got unwittingly subscribed by a friend playing a prank, or what have you). So what's an e-mailer supposed to do if he wants to make sure he stays within the law? He'll have to submit his database of cyber-addresses to the state, where, for a fee, they will be scrubbed of any matches to the 'do not contact' list.

Think about that. First, you have to send the e-mail addresses of all your regular recipients to the state authorities - an obvious, troubling violation of your customers' privacy. Second, you couldn't do this just once - you'd have to do it every time before you send another mass mailing, as the state's 'do not contact' list will probably grow over time. Third, because your customers could live just about anywhere, you'd have to go through this process for every state in which such laws exist - currently just Michigan and Utah, but other states are likely to follow. Fourth, you'd have to pay every single state a small fee for every single e-mail address checked, which could add anywhere from ten cents to thousands of dollars to the cost of each of your your mailings, depending on the size of your audience. Fifth, your elected officials just made it easier for any foreign competitors to put you out of business, as anyone operating from outside the United States wouldn't be subject to the same prohibitive hassle and expense.

The best that can be said for these laws is that they are doubtless well-intended. But so what? If I take my poorly running car to the garage and the mechanic ruins my engine, he's no less liable for having meant well. Is it too much to ask that we hold our legislators to the same standard that we hold our local grease monkeys?