Silverpop - Pornographers vs. the State of Utah
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Pornographers vs. the State of Utah

Bill Nussey, Silverpop
by: Bill Nussey (@bnussey)
18 November 2005

This stuff is great. I mean really, I couldn't make up stuff like this if I tried.

A group of pornographers calling itself the Free Speech Coalition has filed a lawsuit against the State of Utah's child protection act establishing a "do not email" registry for children. The group is claiming that the law is illegal under CAN-SPAM (which specifically states that it overrides state-based email laws), and that it impedes interstate commerce. (See the Nov. 18 MediaPost article.)

The sad part is, I doubt many pornographers actually want to spam children. But that's how observers will interpret their lawsuit. My guess is they are concerned about the same thing as every other email marketer, legitimate or gray -- these laws are an invitation for citizens of these states (Michigan passed a similar law) to make a fortune by suing marketers in the name of their children.

Even without such a cynical view of things, the cost of scrubbing one's lists against both states' ridiculous pricing makes email marketing prohibitively expensive. And, imagine the poor email marketer with a huge opt-in list who didn't happen to ask her opt-in recipients to provide their state of residence. This poor marketer now needs to scrub her ENTIRE list against both states EVERY month.

You might say to yourself, this only affects emailers of things like tobacco, alcohol and porn. I hope you're right. But what are the chances that some judge or jury in those states can be convinced that an otherwise-benign campaign from Coke or Wal-Mart or Yahoo! has some overtone of inappropriate content for children? Maybe 5- or 10 percent? Low odds, but for some still good enough to roll the dice and take a deep-pocket company to court. Heck, if you're lucky, the company will settle to avoid the press, and pay you $100,000 to just go away. Like I said in an earlier post, if you live in Michigan or Utah, spam is no longer the most lucrative way to exploit email.




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