8/11/2005

A Quick Rundown of the New Michigan and Utah Child Protection Laws

by Shannon Coulter

Note: Several marketing associations and other legitimate business organizations have already mobilized to challenge the legitimacy and constitutionality of the new state laws, which have been deemed overly broad by many anti-spam and industry experts. Lyris will continue to provide ongoing updates on this issue—including expanded compliance information—as they become available.

This article is presented for informational purposes only . We encourage our clients, customers, and web site visitors to speak with their own legal advisors to understand how this legislation may apply to their businesses in particular.

On July 1, two new state-level child protection laws went into effect designed to protect children under the age of 18 from receiving adult content via email and other electronic forms of communication (i.e. cell phones and IM). Although they were primarily designed to prevent minors from receiving sexually explicit material—the broad language of the laws may mean more far-reaching implications for legitimate email marketers.

How the new laws work

Both Michigan and Utah are currently building lists of minors’ email addresses by allowing parents and other guardians to register these addresses with the state. Once an address has been on a list for 30 days, publishers are prohibited from sending it anything containing—or even linking to—advertising for a product or service that a minor is legally prohibited from purchasing or using— even if the owner of that address previously requested to receive the information.

Under the law, senders need to match their own mailing lists against the state registries on at least a monthly basis, for which they must pay both Michigan and Utah a per-address fee. The Michigan law limits the fee to $0.03 per address, while the Utah Department of Consumer Protection is setting a fee of $0.005 per address.

Note, neither state has provided a concrete method for obtaining and using the do-not-contact lists as yet, but both say that these lists will be available soon.

Things to keep in mind

• Prior opt-in request from the minor is negated by the new laws
• ISPs do not bear responsibility for the transmittal of any prohibited content—the sender does
• The laws prohibit email messages that advertise products and services that minors are prohibited from viewing, purchasing, possessing, and using. Even linked material is included within the scope of the law.

Additional information

Senders found to be in violation of Utah's law can face up to three years in jail and up to $30,000 in fines, as well as civil penalties of $1,000 per message. Violators of Michigan's law face similar fines and jail time, and may be held liable for civil penalties of $5,000 per message or $250,000 for every day of violation.

Senders would be in violation of the law regardless of whether the email was requested by the minor or parent of the minor, so even mailers who have followed careful permission-gathering procedures may find themselves in violation of these laws will need to check their lists against the state registries.

Full text of the laws are available here: Utah and Michigan

Contact us at editor@lyris.com to share your ideas. We may include it in the next issue of Making Mail Work!