Park City anti-spam company battles adult entertainment industry
The Free Speech Coalition, a California-based not-for-profit trade group representing members of the online pornography industry, filed a complaint with Utah’s United States District Court last November against the state of Utah to challenge the validity of Utah’s Child Protection Registry Act.
According to court documents, the coalition finds the act violates "various provisions of the United States Constitution and the Utah Constitution" and in particular, "impermissibly burdens interstate commerce violates rights of free expression protected under the First and Fourteenth Amendments to the United States Constitution and treats the plaintiff and other e-marketers differently than more traditional marketers under the law, in violation of Article I, Section 24 of the Utah Constitution."
Jerome Mooney, of the Mooney Law Firm representing the Free Speech Coalition, explains that Unspam has essentially created a tax on speech and a tax on commerce, since it chargess adult product marketers half a cent per e-mail to comply with the regulation.
"That doesn’t sound like much, but if you’ve got 50,000 emails on your list and you need to send your whole list in for evaluation, it adds up," he observes. "If everyone in the country were to be able to do something like this, it would be outrageous."
Unspam registries differ from "do-not-call" lists, because Unspam registries are not national, Mooney notes.
"We’re saying the state of Utah has no business regulating this," he said. "[Minors’ emails] should be regulated on a national basis, if at all. This law goes beyond the power of the state. The nature of email communications is such that they can only effectively be dealt with on a national basis."
"It’s a funny thing that this little company in Park City, Utah has had this global
and somewhat controversial reach," reflects Unspam’s CEO Matthew Prince.
"Something like 99 percent of the world thinks this is a great idea and then one percent of the world out there sending out these products are fighting like crazy to do anything they can to shut us down. We’re going up against some of the most powerful lobbyists out there," he claims, noting that hundreds adult product companies have already signed up to comply with the law.
Prince says Unspam support crosses party lines and that he has yet to find a legislator vote against "do-not-email" registry bills. The company has already worked with Michigan to pass a child protection email registry, and is now working with Connecticut, Georgia, Illinois, Wisconsin, Minnesota, Hawaii, Alabama and South Carolina who are considering similar laws this year.
Since July of last year, thousands of individuals, including Utah schools, have signed up for protection under Utah’s registry, Prince reports.
"I think we all have had that visceral experience as email users, sitting down and opening your in-box and clicking on something and saying how did we get this?" Prince explains. "It’s a shocking experience. It feels like a violation and it’s something I think a lot of people can relate to."
Like the "do-not-call" law that allows individuals to list their telephone numbers as off-limits to telemarketers, once an email address is on the Utah registry companies can face penalties for sending prohibited products to the address, including criminal penalties enforced by Utah’s attorney general, or civil penalties enforced by the sate.
Unspam works not only to implement lists, but also helps states track down violators of the law. Utah has just issued its first citation against a Web site promoted by email sent to a registered address used by a Utah child. He says "the name of the domain being promoted in the email itself is enough that you wouldn’t be able to print it."
Prince rebuts the coalition’s argument that such registries limit free speech. On the contrary, he says, while there is a right to speak that’s fundamental, there’s an equally compelling right and, in fact, the right to speak doesn’t mean anything, unless you have the other right, to choose not to hear material.
"You can’t have material forced on you," he explained. "For freedom of expression to mean anything, there’s a need to be able to block material you don’t want to receive."
Utah’s registry service is based on a precedent established by the U.S. Congress in 1968, called the Mail Preference Service, which allows households with a child under the age of 19 to list postal addresses as being off-limits to any unwanted material, and especially pornographic material, according to Prince. In 1970, the United States Supreme Court unanimously upheld the Mail Preference Service as constitutional, he said.
"We studied a number of laws out there that had been successful and upheld as constitutional and we worked with a number of legislators in order to help encourage those laws to be passed," he explained. "We started the company in 2004 with the idea of creating laws that would help people manage what material they wanted to come into their home and what material they didn’t want to come into their home over new electronic communication media."
Prince, an attorney and adjunct Professor at the John Marshall Law School in Chicago, started the company with Unspam COO and Genreal Counsel Benjamin Dahl, and Unspam CTO Eric Langheinrich. The three grew up in Utah, attending junior high school together, and moved the company to Park City in 2005.
The company has grown to include 10 employees, and has plans to open registration of mobile phone numbers and instant messenger identifications in May.
Utah residents and schools may register to receive protection for free by visiting http://www.kidsregistry.utah.gov.
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