Legislative Update: DMA Finds Do-Not-E-mail Friend in the FTC

During a legislative update for members of the Direct Marketing Association’s Lists and Database Council earlier this month in New York, senior vice president of government affairs Jerry Cerasale said that the Can-Spam Act of 2003 should preempt commercial “do not e-mail” laws that are popping up in several states.

The DMA has said it would join the lobbying efforts of the FTC, but not file an amicus curiae, against the Utah Child Protection Act, citing several flaws in the law and stating it could weaken the Can-Spam Act. The Utah law, along with a similar act passed in Michigan, prohibits marketers from sending e-mails that promote alcohol, firearms, tobacco, or pornography to households where someone under the age of 18 resides, providing they register for the state’s do-not-e-mail list. Marketers would still be able to send e-mails to consumers in those states that are not registered on do-not-e-mail lists.

Six groups have filed amicus curiae (documents filed by nonlitigants as “friends of the court”): the E-mail Sender and Provider Coalition, the American Advertising Federation, the Association of National Advertisers, the Center for Democracy and Technology, the American Association of Advertising Agencies, and the Electronic Frontier Foundation.

The FTC is against a national do-not-e-mail registry, citing potential increases in unwanted e-mails. According to Cerasale, hackers could use the data on do-not-e-mail lists to generate files of children’s e-mail addresses. For simplicity sake, however, the DMA would rather see a national registry than 50 states coming up with 50 different laws. Nonetheless, the DMA still support the FTC’s efforts.

Utah’s do-not-e-mail list has just about 2,000 names on it; Michigan uses the same list, Cerasale said. Marketers wanting to send content to residents there must first have their lists scrubbed against the do-not-e-mail list by Park City, UT-based Unspam, at a cost of $0.03-$0.07 a name, every 30 days. Michigan wants to add “violent content” to its law, which the DMA and others say violates the First Amendment. Similar laws are being considered in Illinois, Connecticut, Georgia, Wisconsin, and Hawaii.

Utah’s list went live Aug. 15. Michigan’s list went live in November.