"We're definitely taking a position, which is 'Opposed,' " says Kurt Opsahl, a staff attorney with the EFF. "In terms of challenging the law, it's a question of finding the right party," he added.
The EFF is seeking businesses in Utah or Michigan that would be negatively affected by the e-mail fees or by the prison terms that threaten e-mail publishers who run afoul of the laws.
I've written three previous articles about these laws on July 26, August 2, and August 9. In those stories, I described how the laws make it a felony to send a single message to an e-mail address on a state's Do Not Contact registry -- if the message (to cite Michigan's wording) describes or contains links to "a product or service that a minor is prohibited by law from purchasing, viewing, possessing, participating in, or otherwise receiving."
These laws were promoted as "protecting children from spam." But the measures won't reduce spam and won't protect any children. Let's first look at these laws' legal flaws and then their practical problems.
How States End Up Writing Bad Laws
EFF's Opsahl says there are three main problems with both the Michigan and the Utah laws:
• Flouting the CAN-SPAM Act. This Federal law, which went into effect on Jan. 1, 2004, establishes national standards and prohibits states from regulating spam. The act does allow states to continue to legislate against computer crimes. But it's impossible to conceive that an ordinary e-mail message about firearms or contraception -- or the myriad things minors are barred from buying -- could qualify as a "computer crime."
• Imposing Costs on Free Speech. Considering the value of free speech and a free press, Opsahl says, it's impermissable to "put a tax on speech the government doesn't like, which increases the costs of publishing."
• Making Speech a Felony. Courts have consistently ruled that governments can't put criminal prohibitions on certain types of speech.
Opsahl encourages interested persons to join the EFF as a way to support the organization on this issue. To do so, visit https://secure.eff.org. Businesses interested in opposing the laws should send an e-mail to information at eff dot org. (Change "at" and "dot" to punctuation, and put "MI and UT laws" in the message's Subject line.).
How to Expose Kids to "Candy Spam"
The states hope to extract millions of dollars from legitimate e-mail publishers. If only 12 states adopt Michigan's language and fees, legitimate publishers would have to spend more than $1,000 per year for every 1,000 e-mail addresses on their lists. Meanwhile, kids in these states will probably be exposed to even more spam.
It's a simple matter for spammers to discover any e-mail addresses that get into these states' registries. The addresses on the registries won't be made public. But they don't have to be. Any spammer can easily run his huge e-mail list against the state registries to learn which addresses are read by children.
Let's say one million kids' e-mail addresses are submitted to these registries by well-meaning parents. Once a single spammer segments his list -- and then re-sells the resulting kids' addresses to other spammers -- this hugely valuable targeting information could result in teens receiving messages like the following:
HEY, KIDS! GET A GIANT BOX OF CANDY -- FREE
Our firm has been hired by Giant Candy Co. to give away 1 million boxes of candy. This is delicious chocolate candy that just has a misprint on the label, so it can't be sold.
We'll send you 5 pounds of this quality candy absolutely free! You just pay shipping. Send 3 dollars in cash (no credit cards or checks) to Giant Candy Offer, 100 Any St., PMB #123, Detroit, MI 48226. Get yours today! (This offer won't be repeated, but you can click this link to unsubscribe.)
The above message would fool many kids, but wouldn't itself be illegal under Federal law or the two state laws. That's because:
• The CAN-SPAM Act doesn't make it a crime to send spam as long as each message includes a street address and a link to the spammers' Web site, where you can search for a way to unsubscribe; and
• The Utah and Michigan laws don't apply because it isn't illegal for kids to purchase or possess candy.
The same is true whether the offer involves a toy, or a free iPod, or whatever the spammers find pulls the best response rate.
Of course, no kids would receive any candy or toys. Almost all of the response would come within the first 72 hours, and the spammers could take the cash and move on to the next scam.
Even if local police could somehow be convinced to stake out the private mailbox, looking for the 3-dollar thief (instead of investigating murders and rapes), it'd be useless. No one would ever show up to unlock the mailbox. An insider at the mail-delivery service would pocket the letters, which would never be seen again.
It's Time For a Real Solution to End Spam
Laws like the ones passed in Michigan and Utah -- which gravely threaten freedom of the press -- arise to "combat spam" because Congress has utterly failed to do the job. The European Union, Australia, and numerous other countries have already taken action. These jurisdictions have passed laws clearly outlawing the sending of unsolicited bulk e-mail (UBE).
These laws obviously haven't ended spam yet. But Australia's law, in particular, shows that these laws can work. Since the country's measure became effective in April 2004, many Australian spammers have "almost ceased activities and at least one is known to have left the country," according to a report by Spamhaus.org, an antispam clearinghouse. In June 2005, the government filed suit against a major spammer who allegedly sent 56 million messages. He faces penalties up to $220,000 USD per day for a first offense.
Since the biggest spammers are based in the United States, Congress needs to adopt the same laws so legal actions can be filed against American spammers as well. E-mail is a "receiver pays" system, just like fax machines and collect phone calls. Simply for economic reasons, UBE cannot be allowed, any more than bulk faxes or mandatory collect calls are legal under U.S. law.
The Michigan and Utah laws aren't really about ending spam, but about creating new revenue sources for the states. Most of the sought-after revenue, however, may go to a single private contractor. The operator of both states' e-mail databases is Unspam Technologies Inc. The company, which lobbied for the state laws, was the sole bidder for the contract in Utah and one of only two bidders in Michigan, according to a source who requested anonymity.
The Michigan registry, in fact, is in disarray, with its enforcement postponed from Aug. 1 to an unknown date. The contractor wants e-mail publishers to pay 0.7 cents per e-mail address per month for the Michigan list-cleaning service. But the state law authorized a maximum of only ".03 cents" per address. Dennis Darnoi -- chief of staff for State Sen. Mike Bishop, the bill's chief sponsor -- said in an interview that the amount will be amended to read "3 cents" after the legislature convenes on Sept. 6.
I hope readers in the state of Michigan will tell their legislators in the interim what a stupid bill this is.
On a Personal Note
I'm gratified by the response to my columns on the Michigan and Utah e-mail fees. Thanks to the attention this issue has generated, two of my articles from the previous three weeks currently show up as the No. 1 listings in Google.com on searches for michigan utah as well as utah michigan.
It's summer, and time for me to take a break. There'll be no Executive Tech published on Aug. 23 or 30. My next column will appear on Sept. 6. Have a nice month!