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Douglas MacMillan is one of the Ninja Hamsters at ADOTAS aka an intern. He previously spent several months working as a dutiful intern under the dictatorship of Jann Wenner at Rolling Stone, only to be set free by our own Kiran. He does not get Jaime skim lattes in the morning.

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Keeping Children’s Email Clean: Whose Responsibility is It?

Written on
Feb 23, 2006 
Author
Douglas MacMillan  |
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Keeping Children’s Email Clean: Whose Responsibility is It?

You set your seven-year-old child in front of the computer and set up her own e-mail account, so now it is your job to look at her with a straight face and answer the shocking question she poses: “Mommie, what is sexual enhancement?”

You cringe. You wriggle in embarrassment. You want to pick up your computer and throw it out the window. For a while there you actually looked forward to giving her some free time to explore the Internet playing games, learning to read, and reaching out into an exciting interactive world. Now you realize you were terribly mistaken.

No matter what age you are or what interests you, every person on the internet is a viable target for the pornography and gambling industries. Their massive email marketing campaigns do nothing to distinguish between a sixty-year-old retiree and a six-year-old child. Slowly and begrudgingly, this is beginning to change.

This month, several states have made advances towards establishing ‘Do Not Email’ registries, a controversial solution to inappropriate child spamming. Hawaii, Illinois, Iowa, Connecticut, Georgia, Alaska, Mississippi, and Ohio have each paid some attention to Utah and Michigan, the first two states to legally implement such registries, and begun to consider their own protection strategies. In July and November of last year, respectively, Utah and Michigan cooperated with Unspam Registries, Inc. to create statewide lists that could guarantee participants shelter from inappropriate, unsolicited email marketing. For many, the Child Protection Registry Act looked like the ideal safeguard that their family-oriented online experience demanded. However, it soon became evident that the registries were too problematic to accomplish everything they set out to do.

The initial concept was hatched between 2002 and 2003 at UCSC’s Baskin School of Engineering. Arthur Keller, a research associate in the technology and information management program led a team of bright undergraduate engineers in designing the software that would be integral to the rise of ‘Do Not Email’ registry. Their plan was relatively simple. At no charge, parents entered their children’s addresses into the list.

Email marketers deemed inappropriate or controversial would pay a fraction of a cent per address to compare its list against the registry’s list, a process known as “scrubbing.” For every match, a child’s address would be removed from the marketer’s list. If the marketer went around the registry or somehow snuck a message through to a registered child, they would be charged a fine between $1,000 and $5,000. The revenue created would be split between the states and the company that could provide all software services for the registry system.

When Keller came into contact with Matthew Prince, CEO of Unspam Registries, at an FTC conference in 2003, the seed he and his students had engineered was planted. Unspam bought the model, and convinced legislators in the states of Utah and Michigan to adopt email registry as legal policy last year. Despite several flaws that have become apparent since the birth of ‘Do Not Email’ lists, they are still fully operational in these two states, and showing signs of expanding to many others around the country.

Child protection registry is noble in concept, but right now it is falling apart when it enters into legislation. Much of the problem lies in Congress’ CAN-SPAM Act of 2003, the first major governmental attempt to regulate email marketing. For the most part, the CAN-SPAM Act has been an effective way to control and consolidate all legislation regarding the rapidly expanding field of email marketing. However, it contains no measures of protection for children who are bombarded with inappropriate spam.

How can this be? As Congress issued the CAN-SPAM Act, the subject of child protection evidently did arise. Shortly thereafter, Congress asked the Federal Trade Commission if a ‘Do Not Email’ registry would be an effective measure.

The FTC’s response came early in 2004, when they issued a report specifically addressing the infeasibility of such a program. They advised that a registry might actually increase the prevalence of unsolicited email, as marketers would be forced to up the volume of their messages to compensate for their loss of customers and increase of spending. They predicted that the measure might prohibit interstate communication, as there is no way of guaranteeing a sender’s location. But perhaps most alarming of all FTC’s reasons for the dismissal of the ‘Do Not Email’ registry, they warned that as the security of such a database could never be completely protected from hackers, the registry list could actually expose all of the children on it to much greater danger than they were ever in in the first place.

Undaunted, Utah and Michigan pressed forward and passed Child Protection Registry the following year. While they slowly gathered participants, a national debate ensued. Internet users wondered if the benefits outweighed the sacrifices. Parents wondered if they were submitting their child’s name to dangerous predator’s very own hit list. Email marketers wondered if their constitutional rights were being violated.

The marketers, of course, reacted the loudest. In November of 2005, the Free Speech Coalition, a California-based adult entertainment industry watchdog, filed a lawsuit against the state of Utah, charging them with the violation of the 1st and 14th Amendments to the Constitution, the pre-emption of the federal CAN-SPAM Act, as well as free speech provisions of the Utah Constitution. The suit is still pending.

Sure, they’re defending smut peddlers, but the Free Speech Coalition and many increasingly outspoken opponents of the Child Protection Registry make a logical case. The legislation’s wording is purposefully vague with the intention of dodging several rulings contained in CAN-SPAM, a ruling which primarily allots for filtering, not censoring of objectionable messages. The ‘Do Not Email’ laws make it a felony to send a single e-mail message—even one that is personally typed—to an address on the registry if the message contains certain otherwise-legal information. A message is a felony if it advertises “a product or service that a minor is prohibited by law from purchasing, viewing, possessing, participating in, or otherwise receiving.” In states such as Michigan, this means a single solicitation to the young about buying a car, contraception, or a gun—all prohibited to minors by state law—is a felony punishable by a $5,000 fine. When you are forced to be vague about constructing new legislation, there is usually a good reason: the country is just not ready for it.

The laws can in fact be bent to preposterous lengths. In his scathing indictment of the Child Protection Registry Act, entitled “How Utah, Michigan Legislators Got Fooled”, Brian Livingston describes two extreme examples:

“1) A conservative activist puts her e-mail address, which is also used by her daughter, on a state registry. The listing takes 30 days to become effective. She then e-mails a health clinic for information about morning-after pills. If the clinic replies with the information, the sender is guilty of a felony. 2) A liberal activist registers his and his son’s e-mail address. After 30 days, he e-mails a gun dealer, asking for product listings. If the dealer replies with details, he’s guilty of a felony.”

There is a lot riding on the outcome of the lawsuit filed against the State of Utah. If Utah prevails, the constitutionality of the Child Protection Registry will become less of an issue, and legislators will have more breathing room to address the particular hypocrisies and vague wordings that allow for concerning loopholes within the law. Some of the many other states who have shown interest will no doubt adopt their own child protection registries, working out some of the kinks they have had the privilege of seeing ahead of time. However, if the Free Speech Coalition wins their lawsuit, which I fear will happen, the entire concept will have to be rebuilt from the ground up.

Arthur Keller recently told me in an e-mail that he considered the constitutionality of the registry at the time he developed it, but that he sees this debate as resting on a matter of perspective. “The Freedom of Speech is not the freedom to be heard,” he states. “Each of us should have the freedom to choose to avoid receiving unsolicited commercial email. A ‘Do Not Spam’ registry would implement such a freedom of choice.”

I wholeheartedly agree with these sentiments, but I see that the law is not ready to look at ‘freedom of choice’ and ‘freedom of speech’ as the same thing. By taking part in a ‘Do Not Email’ registry, you are not exercising your freedom of speech, but rather requesting a service whereby the government protects you from others’ free speech. If we truly did hold a freedom of choice as an extension of our free speech, we could expect every billboard, every TV ad, and every page in a magazine to become exactly suited to our tastes and sensibilities as we turn our head to look at them. While we are granted limited protection from the abuse of others’ free speech in some areas, true freedom of choice does not exist for today’s consumer.

With all of that said, it’s still so hard to look into the eyes of your child and tell her that the e-mail message she was so proud to open and read for herself is not meant for her innocent world at all. It may seem hard, but parents must step forward and be the deciding force behind the censorship of their child’s email until the day the law is prepared to take on that responsibility. Hopefully, Arthur Keller’s inspiring vision will remain and spread throughout the country even if the Child Protection Registry Act crumbles apart at the hands of lawsuits. Hopefully, we will reach a day when our children can log in and join us in the wonderfully unique learning experience that is the Internet without having to be overwhelmed by the bleak and deceptive schemes that so often creep in from the real world.





Reader Comments.

With respect to TV ads, you choose to watch television. Free over-the-air broadcast television and radio is paid for by the advertising that the viewers watch. This convention is being broken by Tivo, which acts as a sort of ad filter. I choose to listen to public radio, and I contribute towards its continued existence.

With respect to billboards, I chose to live in the City of Palo Alto, which closely regulates business signage and outlaws billboards. Other communities make differing choices for their citizens. I have not heard of lawsuits against the City of Palo Alto for harming commercial speech because they outlaw billboards. Even where billboards are allowed, they are still extremely regulated nationwide. Smoking and pornography are not acceptable in any community in the US. The courts have upheld these restrictions.

Gambling and alcohol are also heavily regulated, depending on the community. Television is similar. Ads for pornography, gambling, and smoking are almost entirely forbidden. Alcohol is limited in how it is presented. Again, these restrictions have been upheld.

While political speech is given the highest deference in freedom of speech, commercial speech is accorded less protection. There are laws against deceptive advertising, for example. The main benefit from unsolicited commercial email accrues to the sender. A small number of recipients may find any particular email message of interest, and many of those can avail themselves of those messages by joining mailing lists. But most recipients find unsolicited commercial email a nuisance, and incur costs in productivity and resources to deal with that nuisance. So the “social compact” that justifies advertising on commercial television or radio does not translate over to unsolicited commercial email.

I’ve personally taken a variety of measures as a parent with respect to my children. They are not allowed to enter any personally identifying information on any website without parental permission. Nor are they allowed to join any mailing list without parental permission. They have been told to forward to me any message they receive that they find offensive, so I can investigate. I’ve made their ISP email addresses obscure and unlikely to be subject to a “dictionary attack.” And yet it’s possible that their email addresses could leak out. A do not spam registry will keep the legitimate senders of unsolicited commercial email from sending them unwanted mail. And it will allow prosecution of the illegitimate senders. Without knowing the email addresses of my children to start with, an email marketer cannot obtain it from the registry.

The Direct Marketing Association has established a Mail Preference Service so that we can request not to receive unsolicited physical mail. A similar service exists with credit bureaus. The model also makes sense for email and other electronic contacts.

Posted by Arthur Keller | 1:52 am on February 24, 2006.

The idea that a child should be using the same email address as a parent is based on the faulty premise that email addresses are scarce. Most ISPs will give their customers additional email addresses for free. And there are many free email services so the parent can get his or her own.

The parents in Brian Livingston’s example should use an email address not shared with a child for making requests that the children should not receive. And if the email address shared with a child was registered at least 30 days before, the sender can easily check it against the registry before sending prohibited material to it, in order to avoid any liability. If the email address was registered within the last 30 days, there is no liability.

Of course, replacing the individual state registries with a single national registry is a good solution to the problem that bulk emailers of prohibited materials have to check multiple registries with separate payments for each one.

Posted by Arthur Keller | 2:05 am on February 24, 2006.

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