Suspension of Emailed Ifeminist Newsletter
I just sent the following notice to the thousands of subscribers to ifeminists.net's e-newsletter to announce its suspension (at least, in emailed form) and to explain the political reasons why that suspension is legally prudent. The notice follows... Hello to all: I am sorry to announce that I will no longer be sending out the weekly ifeminists.net newsletter. Instead, the exact same content will be featured on a page of the website. Of course, news can also be accessed on a daily basis by browsing the newsfeed or by an RSS feed.
On July 1st, new laws regarding e-mailed newsletters went into effect in Utah and Michigan; other states are close behind. Anne P. Mitchell, President/CEO of the Institute for Spam and Internet Public Policy and a law professor, calls those laws"a legal quandry in which every sender of commercial email is about to find themselves." (See Groklaw for more information. And please note: non-commercial emailers seem to be included if their newsletters contain URLs that link to commercial sites or products.)
Both Utah and Michigan have created a" child protection registry" for email addresses that belong to children or to which children have access. It functions like a"no call list." Spamfo.co explains,"Once an email address is on the registry, commercial emailers are prohibited from sending it anything containing advertising, or even just linking to advertising, for a product or service that a minor is otherwise legally prohibited from accessing, such as alcohol, tobacco, gambling, prescription drugs, or adult-rated material." In short, e-newsletters (such as ifeminists.net) are not permitted to send to registered email addresses if those newsletters include URLs to news sites that, in turn, link to child-inappropriate commerical information or products such as casino or viagra ads, tobacco or alcohol for sale.
Many credible news sources -- especially British ones, it seems -- offer links to adult-themed sites or products. These links can change constantly, which means that it is impossible to check a URL and" clear" it of so-called objectionable links or ads.
Moreover, e-mailing to registered addresses is illegal even if the newsletter was requested, and the legal penalties for doing so are imposed without notifying the offender so that he/she can rectify the situation. What are those penalties? To quote Prof. Mitchell again,"Under these laws...that email sender faces strict liability which can include up to 3 years in prison, and fines of $30,000 or more. In addition, ISPs and the individuals whose email addresses are on the registry have a right of action against the sender, as does the state attorney general."
The only protection is for the emailer to make sure that a particular address is not"illegal" by matching his/her mailing list against the registries. That process requires at least two things that I am unwilling to do: 1) turn my mailing list over to the government; and 2) pay a per-address fee for the matching process. Moreover, since I cannot easily ascertain whether a hotmail or aol address has a final destination within Utah or Michigan, I'd have to turn over and pay for virtually every address on a monthly basis to two state governments. (There now are two; there will soon be several more and I would have to keep up with the variations in law in each state.)
Being charged under the new laws may seem to be a remote possibility. And I would not suspend publication were it not for two factors.
First, the enewsletter includes links to news and commentary on sexual issues such as pornography and prostitution, abortion and gay rights. It includes URLs to such discussion and, in turn, those URLs are more likely than many to point to sites the child registries would consider inappropriate. And, according to the Institute for Spam and Internet Public Policy, you could be in trouble if your email contains"unpermitted materials, links to unpermitted materials, or even links to sites which have information about the unpermitted materials". The law is *that* broad and *that* vague.
Second, it is difficult to over-state the viciousness and dishonesty of some of the people who attack father's/men's rights advocates. Some have crusaded to destroy the careers, lives, and even harm the families of those who advocate positions like the presumption of shared custody. Given that no notification of an inappropriate address is necessary before penalties can be imposed, I believe it is likely that one of these malicious feminists will subscribe to the ifeminists.net newsletter under an inappropriate address and, then, file a complaint when the e-newsletter arrives.
I won't take that risk. Nor will I turn over addresses to the government, let alone pay for the privilege.
I have enjoyed publishing the newsletter. I hope you have enjoyed receiving it and that will continue to follow the ifeminists.net news and commentary by clicking on our website at your convenience. To repeat: The newsletter content that you have received each week by email will now be available on a web page. This web page will give you the week's headlines. As other options, you can visit our main index page for daily updates, or subscribe to our RSS news feed. All three options give you the same news items. Choose the form that's most convenient for you.
Best wishes, as always,
P.S. These laws won't stop foreign spam (our ISP is American) or spam from"zombie" PCs. They will mean cash from the large email marketers; and will simply stop small companies and non-profit organizations from distributing email newsletters. Read Declan McCullagh's article for just some of the ramifications.
For more comentary, please read McBlog.
Chris Matthew Sciabarra - 7/15/2005
I added a brief entry on this at Notablog. It is a shame, and keep us posted, Wendy!
Keith Halderman - 7/14/2005
Sometime ago I took criticism for pointing out that the American people are becoming more and more slave-like in their condition. Yet here is another example of that. The underlying mechanism for exploiting the slaves was to treat them as though they were children. These registry laws have the practical effect of making us all children when it comes to e-mail newsletters. This type of reasoning, which leads to the loss of a convenient and valued resource, is unfortunately very commonplace. We are turning into a society of infants
Tom G Palmer - 7/14/2005
Please do keep us posted. Are you also in contact with the electronic liberty groups, such as the Progress and Freedom Foundation (I sent this on to one of their top staffers) or the Electronic Frontier Foundation?
Wendy McElroy - 7/14/2005
Hello. Thank you for your outrage. I am currently in very preliminary discussions with a civil rights attorney on what, if anything, should be done. I mention this only in passing because most such discussions go nowhere. But it indicates my frame-of-mind, which is to fight if possible...or, rather, if not too costly. (The financial aspects should be covered by pro bono.)
The state laws are clearly unconstitutional -- e.g. prior restraint -- and will exert an increasing chill on freedom of speech. Increasing because (by my count) nine more states are poised to pass aimilar "child registries", which will presumably require nine more monthly fees to match email addresses, to be paid by emailers who do not wish to dangle out there in legal jeopardy. Also the existing laws allow families to sue an offending emailer in civil court as well as having the state imposed fines and imprisonment; thus, with civil court, an undefined liability is being imposed. And providing an extra source of income for litigious parents
I received Tom Knapp's Rational Review News this morning and noted that he included an ad for a casino as one of his "headers". Technically, he just broke the law if any child in Utah or Michigan is on both the registry and his list, or has access to an address in Utah or Michigan. More accuratly, when the 30-day grace period is over on August 1st, he will be in violation of the law if the ad remains.
I will keep people informed of any legal movement on this case...but, as I said, most discussions do not lead to substance.
Tom G Palmer - 7/14/2005
This is more than a shame. It's a travesty. Can anything be done to overturn such a stupid law? It's one thing to take action against spammers clogging our computers with hundreds of millions of online gambling ads (I'm not sure whether that merits a legal response, but I'm inching in that direction), but this is an entirely different matter and a clear restraint on freedom of speech.
Steven Horwitz - 7/13/2005
As a recipient of your newsletter, this is a real shame. The state strikes again.
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