Porn Group Prepares to Sue Michigan

Online pornography trade group the Free Speech Coalition is gearing up to sue Michigan over the state’s so-called child protection e-mail address registry.

Suing Michigan would be the next step in the Free Speech Coalition’s ongoing battle over registries implemented recently in that state and Utah—a battle most e-mail marketers quietly hope the porn group wins.

The group filed a suit against Utah in federal court in November aiming to get that state’s child-protection registry declared in violation of the federal Can-Spam Act, and/or an unconstitutional restriction of interstate commerce.

Utah and Michigan passed laws this summer allowing parents and guardians to sign up e-mail addresses and other electronic “contact points,” such as instant messaging addresses, used by minors as off limits to commercial e-mail containing material illegal for them to buy or view.

Marketers of such material are supposed to scrub their lists against the registries against the states’ registries on a monthly basis. Both Utah and Michigan’s registry laws include severe financial penalties for violators, and allow individual parents to file suit against companies they believe broke the law. Critics contend that the registries will do nothing to prevent children from getting inappropriate e-mail while placing an onerous burden on legitimate marketers.

A victory for the Free Speech Coalition in Utah would not necessarily have any effect on Michigan’s registry. As a result, the group must deal with Michigan separately. The Free Speech Coalition has not made a firm decision to sue Michigan yet, according to spokesman Tom Hymes, but is prepared to do so if talks it is trying to have with the state go nowhere.

“We are still evaluating all of our options,” said Hymes. He added the coalition has been trying to talk to the state attorney general’s office, but that “Michigan has been very slow to get back to us.”

Hymes said if Michigan goes ahead with enforcement of its registry law, “there is a high likelihood we will sue.” He declined to specify timing.

Industry experts consider a lawsuit by the coalition against Michigan almost a foregone conclusion. Also, e-mail marketers find themselves compelled to root for the Free Speech Coalition no matter how they feel about pornography.

“We are monitoring the Free Speech Coalition case and intend to file an amicus brief to support their arguments,” said Trevor Hughes, executive director for the E-mail Sender and Provider Coalition. “Hopefully, we’ll see a good result here.”

And what will the ESPC do if the Free Speech Coalition loses? “It’s difficult to say right now, because there are many ways the case could come out,” said Hughes. “We really need to see what happens with this case.”

Of primary concern to marketers are the costs the two registries impose. Marketers fear that if Utah and Michigan’s registries remain in place, other states will follow suit, resulting in skyrocketing costs for their e-mail programs.

Utah is charging $5 per thousand addresses checked and Michigan is charging $7 per thousand. As a result, a mailer advertising, say, gambling services with a list of 1 million addresses will have to pay $144,000 a year to avoid running afoul of the two states’ laws.

It wouldn’t take too many states to follow Utah and Michigan’s example to effectively end legitimate commercial e-mail containing anything inappropriate for minors.

“If every state charged what Utah is charging, it would cost us half a million percent more to send e-mail,” said Hymes.

Utah and Michigan’s laws are already having a chilling effect on the industry well beyond their stated purpose.

“It’s fair to say there have been a broad range of responses,” said Hughes. A well-known cable entertainment company has reportedly stopped e-mailing to subscribers e-mails containing trailers of its shows.

One list industry professional who did not want to be identified said some marketers are refusing to send any kind of commercial e-mail into Michigan or Utah and have been refusing to send to addresses that they cannot verify are not in those states.

“This is definitely having a chilling effect on the industry,” he said.