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Abbie's Column : Laws and Regulations


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The Truth About Email Child Protection Laws

By Abbie Drew
Jul 13, 2005

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Well I wish I were writing with better news. As promised,
today I'll share with you what I learned from the
teleseminar I attended last week on the new Michigan and
Utah Child Protection laws. The teleseminar was conducted by ISIPP.

If you missed last week's issue, here's a quick recap.
Michigan and Utah have put in place child protection laws.
These states have set-up Do Not Email registries for
individuals to enter minors' email addresses. Marketers
potentially face stiff fines as well as jail time if they
send email to a registered minor's addresses and the email
contains material or links to material which kids can not
lėgally see or respond to.

Before I go into what I learned from the teleseminar let me
first say - I am not a lawyer. The information and opinions
that I share are those of a professional online business
owner. If you want legal advice be sure to seek the
assistance of an attorney.

What did I learn from the teleseminar?

1) If you send commercial email, any type of commercial
email, and you do not check the address against the
registry before you send it you are potentially liable.

Yes folks, it's that bad.

The law has given parents the ability to sue. So if a
Michigan or Utah parent wants to sue you for an email
you've sent to a registered minors address he/she can do
so.

The laws do not clearly define what products and/or
service a minor is prohibited from purchasing, viewing,
possessing, participating in, or otherwise receiving.
However, the State of Utah's department of commerce is
attempting to add further definition to what types of
advertisements are covered. You can review their policy
statement see -
http://www.commerce.utah.gov/dcp/PolicyStatement.pdf

So even if your email is not promoting anything "forbidden",
you could be sued. And if you're promoting a product / service covered by the laws the potential for a suit increases. All your email has to do is be sent to a registered minors address and if its content or if it links to content that irritates a parent, that parent can sue you.

Now will parents sue with abandon? I can't answer that. But I would expect come August the law suits are going to start. It appears the only way to avoid liability is to check every address of a person you do not know against the Michigan and Utah Do Not Email registries before you send them an email.

2) The costs involved for checking every email before you
send is going to be expensive.

In last week's email issue, I noted that the fees to start
are expected to be 0.007 cents for Michigan and 0.005 cents
for Utah per address on your list. I said a list of 100,000
names would cost $12. I'm sorry to say, but my math was
off by a large factor. The costs for a 100,000 name list
will actually be $1200 per scrub.

So essentially if you want to avoid all liability, before you email to any address, you're looking at being charged over a cent an email.

How often do you have to check?

What you'll have to do is check every new subscriber before
adding him/her to your list. Plus you'll have to check your
full list every 30 days.

What are you potentially looking at in terms of costs?

Well for a 10,000 list which acquires say 100 new
subscribers a month. The cost will be $121.20 monthly.
A 50,000 list with 500 new subscribers would be $606
monthly.

Needless to say paying these fees is going to make email
marketing much more expensive. For the small business
marketer, email marketing just became much less
attractive.

3) If you're thinking CAN-Spam makes the Michigan and
Utah Child Protection invalid, as of right now it does not.
Any business with a presence in the USA needs to follow
these laws. This law does not just apply to businesses
in Michigan and Utah, it effects all businesses with a
presence in any of the 50 US states.

The only way the Michigan and Utah Child Protection
laws will be invalidated are if law suits occur and the
outcome of the court cases invalidate the laws. Or if
the federal government passes a new law invalidating
the Michigan and Utah laws or otherwise supersedes
these laws.

In addition to hearing this reality at the teleseminar
I also read that a spokesperson for the Direct Marketing
Association said that while the new laws may in fact be
pre-empted by CAN-SPAM, "for anyone marketing legal
products who might need to be careful about not reaching
minors, scrubbing against the [Utah and Michigan child
protection] registries makes sense."

4) Emailing to customers and double confirmed
subscribers is not a defense.

Should you email to an address that is on the registry,
even if the address belongs to a customer who purchased
from you or is an address which double confirmed their
subscription, you are potentially liable. You have to
chėck the address against the registry before sending
an email to be sure.

5) It is expected that non-Michigan and non-Utah parents
will register their children on these states lists.

While the non-Michigan and non-Utah parents are free to
register addresses, these parents have no legal ground to
sue you should you email forbidden material to one of
these registered addresses.

6) Email Service Providers (ESP) are potentially liable
as well.

While the laws say that ESPs are not liable, it is still
very possible that if you are an ESP you could be sued.

How?

A parent who is upset about an email that was received may
choose to go after every party involved in the sending of
that email. The thinking being that the ESP may have deeper
pockets to pay the fines than the actual sender. Only
through law suits will precedent be set to either uphold that ESPs are not liable or that yes, in fact, ESPs are liable.

As a result of this fact, you may see ESPs changing their
terms of service. ESPs are likely going to tell customers to
scrub their lists. ESP are also going to require that their
customers have to indemnify them, paying all lėgal fees in
a law suit.

Unfortunately the new Michigan and Utah Child Protection
laws make email marketing a much riskier endeavor for all
parties involved.

You are going to have to decide how your business will
respond.

Of course, you may choose to not run your list against the
States' Do Not Email registries, thinking that your content
will not bother anyone and the likelihood of a suit is
minimal.

However, if your are promoting any potentially "forbidden"
material, I would think twice about doing nothing. The
categories that are the most dangerous are: alcohol, tobacco, pornography or obscene material, gambling, lotteries, drugs (pharmaceuticals, prescription drugs - illegal or not), vehicle sales, fireworks, firearms. You'll also want to be very careful if you offer matchmaking or dating services, financial services - loans, credit cards, bank accounts and travel services - car rentals, airplane tickets, hotels, etc..

You might ask, what do we intend to do with DEMC?

We are going to change.

As of August 1st the layout of DEMC E-Magazine is going to
look dramatically different.

Over the course of the next 2 weeks we are also going to
email our older subscribers asking them to reconfirm their
subscription. Any one who does not confirm will not
receive DEMC E-Magazine after the 1st of August. So if
you receive an email requesting confirmation please
respond.

Our goal is to shrink the size of the DEMC subscriber base
and focus on our most responsive readers. With a smaller
list, should we believe the content of an issue is potentially dangerous, the cost to scrub the list prior to emailing will be more affordable.

In addition, our SendFree autoresponder service is going to change. We will be eliminating the ad exchange portion of the service completely. The ad exchange is now too much of a liability.

The SendFree terms of service are going to change to
reflect the need for members to use the Michigan and Utah
registries. And we'll be adding in the ability for members
to export their database lists in order to scrub their email
addresses.

We also are looking into setting up SendFree to
automatically check every address for our customers prior
to adding it to their autoresponder database. [If this is
a service you'd be interested in let us know with a quick
email to - scrub the at sign sendfree.com and we'll keep you informed.]

I disagree with these new state laws. Frankly I see them
as an email tax, plain and simple. Still I am taking them
seriously. I do not want to be the guinea pig fighting out
a court battle.

You need to decide how your business will handle the laws.
And, if changes are necessary, make the adjustments now
so you are ready for August 1st.

Abbie Drew
DEMC Editor



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