Beyond CAN-SPAM: The Nightmare Continues
Turn back the clock to the end of 2003. A bunch of states had recently passed their own anti-spam bills, and California had just passed the then-notorious SB186. Commercial emailers were freaking out because compliance with a patchwork of state laws for email is nearly impossible given the nature of email and given the differences between the laws. The reult of the freakout was an expedited, and decent, though far from perfect, federal law called CAN-SPAM which, among other things, preempted most of the individual state laws under the interstate commerce clause. Most of us noted that the federal government had never worked so swiftly in recent memory.
Now it’s mid-2005, and a new cycle of state email legislation craziness is underway, this time with Michigan and Utah in the lead. Once again, the legislation is well-intentioned but incredibly impractical. I haven’t heard an appropriate amount of kicking and screaming about this yet, so let me give it a shot.
The laws themselves are billed as "Child Protection Acts." They ban email advertising (and also other electronic forms of advertising, like IM, phone, fax) to minors for things like guns, liquor, gambling, porn, tobacco, and — one of the kickers — "anything else deemed to be harmful to minors or unlawful for minors to purchase." The bans are in place even if the child has requested the advertising. The proposed solution is an email address registry of chidren’s email addresses which would act as a suppression list for mailers, is run by a third party, and costs a $7 CPM per suppression run, per state, based on the size of the input file, not the size of the matches.
Let me start running down the problems here:
1. The laws won’t work comprehensively, as people have to proactively register their addresses with state registries.
2. The laws won’t do squat to prevent international or fraudulent advertisers from hitting children with their ads.
3. People with multi-purpose "family" email addresses will have to make a black-and-white decision about being on the registry.
4. Compliance will be a nightmare. Since emailers usually don’t have a state tied to an email address, they will have to suppress their entire file against each state’s registry.
5. Charging based on the size of the input file as opposed to the number of matches is ridiculous. It punishes mailers with large files and is completely divorced from the "value" of the service.
6. The costs are outrageous when you add them up. A $7 CPM seems low, but multiply it by 12 months (and some people think compliance means more than monthly suppression runs) and now multiply it by at least 2 states — with another 10 or so considering similar legislation, and all of a sudden, a mailer could be paying as much as $1 per name ON THEIR FILE per year.
7. The laws are too vague and potentially too broad. A law that prevents advertising of anything else deemed to be harmful to minors or unlawful for minors to purchase has some weird and possibly unintended definition consequences. One example: apparently, in Michigan, it is illegal to sell cars to minors (odd for a state that includes Detroit and licenses drivers at age 16) — so automobile advertising is a "banned category." Another example: Amazon sells DVDs that are Rated R — does that mean linking to Amazon is now problematic?
8. Anyone can sue — not just state AGs, so look out for a zillion nuisance lawsuits like the old Utah "no popup" law of 2003.
9. The laws may be unconstitutional for any number of reasons, and they may also be in conflict with CAN-SPAM’s supersede clause.
The kicker? The laws are billed as "Child Protection Laws" — so who the heck is going to stick out their neck and sue the states to force the legality issue? I’m all for protecting our children…and for eliminating spam for that matter, but I’m sick of governments passing laws with this level of unintended consequences. Someone ought to make a law about that!