AOH :: PT-1029.HTM

Utah, Michigan laws and problems with mailing lists continued

Utah, Michigan laws and problems with mailing lists continued
Utah, Michigan laws and problems with mailing lists continued



Previous Politech messages:
http://www.politechbot.com/2005/06/28/brad-templeton-on/ 
http://www.politechbot.com/2005/06/27/mail-laws-spell/ 



-------- Original Message --------
Subject: 	Re: [Politech] Brad Templeton on weird Utah, Michigan laws and
problems for mailing lists [fs]
Date: 	Tue, 28 Jun 2005 21:59:32 -0500
From: 	Eric Goldman  
Reply-To: 	Eric Goldman  
To: 	Declan McCullagh  
References: 	<42C0C95A.6070307@well.com> 



We need to be clear--the email "check-before-you-send" concept has
already survived a dormant commerce clause challenge in the spam context
(this was the State v. Heckel case from Washington).  So I see the issue
one of three ways:

* email "check-before-you-send" laws are a permissible way to zone the
Internet by geography
* there is some reason why the email "check-before-you-send" laws are OK
in the spam context but not the harmful-to-minor email context
* none of these email "check-before-you-send" laws are permissible.

I feel pretty strongly that the last choice is the right approach
because of the regulatory/compliance/cost burdens they impose on all
email senders. Then again, I was shocked at how many people thought it
was a "victory" when Washington's anti-spam law survived the dormant
commerce clause.

Note that this "check-before-you-send" type law is also implicated in
the Utah and Alaska anti-adware context.  There, the states contemplate
that software vendors will put a pop-up in front of users asking their
geography before downloading regulated software.  This seems equally
problematic to me from a dormant commerce clause.  Otherwise, regulators
could just require email senders to send a pop-up to email recipients to
check geography before sending to them. 

Eric.
-- 
Eric Goldman
Marquette University Law School
egoldman@gmail.com  
Personal website: http://www.ericgoldman.org 
Blogs: http://blog.ericgoldman.org and 
http://blog.ericgoldman.org/personal/ 




-------- Original Message --------
Subject: Re: [Politech] Brad Templeton on weird Utah, Michigan laws and
problems for mailing lists [fs]
Date: Tue, 28 Jun 2005 06:22:20 -0500
From: Michael  
To: Declan McCullagh  
References: <42C0C95A.6070307@well.com> 

It's worse: what constitutes "sending"?  Does forwarding count as
"sending"?  Do I, as a spam filtration service, now have to worry about
criminal prosecution if my free service fails to block an off-color
spam?  Because, you know, there are a few of those...

Michael



-------- Original Message --------
Subject: Re: [Politech] Brad Templeton on weird Utah, Michigan laws and
problems for mailing lists [fs]
Date: Mon, 27 Jun 2005 21:16:40 -0700
From: Ask Bj=F8rn Hansen  
To: Declan McCullagh  
References: <42C0C95A.6070307@well.com> 


On Jun 27, 2005, at 8:51 PM, Declan McCullagh wrote:
>
> I'm hardly alone among list owners either. People haven't been  
> paying attention and, technically, could soon be criminals.

Whee.    Time to change the mailing list signup system to ask if the
subscriber is in Michigan or Utah and if so unsubscribe them.


  - ask

-- 
http://askask.com/ - http://develooper.com/ 






-------- Original Message --------
Subject: Re: [Politech] Brad Templeton on weird Utah, Michigan laws and
problems for mailing lists [fs]
Date: Tue, 28 Jun 2005 00:47:12 -0400
From: Al Donaldson  
To: declan@well.com 
CC: btm@templetons.com 

> Whether you love or hate the state laws, having so many different
> regimes of e-mail law is so clearly untenable I am amazed it hasn't
> been struck down yet.

I thought the Can Spam Act of 2003 was in response to an onerous
California law of this sort.  CSA made it possible for anyone in the
US to send commercial mail to anyone else in the US (a friend refers
to it as the "You *Can* Spam Act"), as long as the sender marks the
mail appropriately, provides an opt-out mechanism, and honors
opt-out requests.

If not, then we've been scammed by the US Congress.

I've always wondered by all these state legislatures are wasting
time with these laws.  I guess it is fertile ground for state
legislators to throw raw meat to their constituents.

Al




-------- Original Message --------
Subject: Re: [Politech] Brad Templeton on weird Utah, Michigan laws and
problems for mailing lists [fs]
Date: Tue, 28 Jun 2005 02:44:22 -0400
From: Danny  
To: Declan McCullagh  
References: <42C0C95A.6070307@well.com> 

Exactly... how does "ignorance is no excuse" apply when new laws are made
every day criminalizing common behavior? And anyone who thinks this is the
end of "do not contact" lists has another think coming... how about a whole
slate of laws for every conceivable kind of "offensive speech"? It's like
making a Slashdot-style "moderation" system, except that the government's
the "moderator" and you can be arrested for bypassing it...

And as always, it starts with "Oh, won't SOMEBODY think of the CHILDREN?" -
a red herring if I ever saw one (well, technically it started with the
spammers, but still...) - it seems whenever some governing body starts to
regulate a previously untouched sphere of life, it always starts by
"protecting the Children" or "getting tough on [pedophiles, drug
dealers, or
other 'subhumanoids' no one will defend]" and slowly works its way from
there toward legitimizing that type of control in general... like Britain's
experiments with tracking sex offenders with GPS, or the even more
terrifying possibilities afforded by the recent discovery of the locus in
the brain which differentiates between thought and plans for action... what
if you could put a "crimethink detector" on anyone deemed to be a
threat?...
say, pedophiles... after all, if you could prevent even one sexcrime,
that's
worth it, right? How about rapists?... Terrorists?...


----- Original Message -----





-------- Original Message --------
Subject: Re: [Politech] Brad Templeton on weird Utah, Michigan laws and
problems for mailing lists [fs]
Date: Tue, 28 Jun 2005 08:31:58 -0400
From: J.D. Abolins  
To: Declan McCullagh , Brad Templeton  
References: <42C0C95A.6070307@well.com> 

Declan and Brad,

Your comments  about the risks of running afoul with different state laws
concerning emails point to many other problems.

Unlike postal mail (excluding special cases such mail forwarding), email
could
be picked anywhere in the networked world at any time. The person you
know to
be living in a "safe" state may be traveling and picks up the email in Utah
or Michigan. Yes, it is unlikely that person willing to receive the risque
texts in one state is going to complain when she travels to one of the
restrictive states. Maybe some states' laws would restrict complaintants to
people with official residency.

Web-based email services provide another interesting wrinkled. The email is
sent to a server and often not downloaded but read with a Web browser. Did
the person, say, in Michigan have the email sent to him in Michigan or
did he
"go out from" Michigan to view a Web site? If this is the case, could some
prosecutor try to claim that comments posted in response to a blogger's
posting are, in effect, "emails sent to" a resident of the state?

Regarding Decaln's comments about risks for the Politech list, the laws
might
not distinguish among various email "senders". If Politech reader sends
Declan an email with risque comments and Declan sends it out to the
Politech
distribution, who's the sender for the purposes of the law? The particular
Politech reader for sending the original message? Declan for forwarding the
uncensored message to the list? Is Declan at greater risk because he has
editorial control over what is sent out on Politech compared to unmoderated
"post & out it goes" lists?

J.D. Abolins
_______________________________________________
Politech mailing list
Archived at http://www.politechbot.com/ 
Moderated by Declan McCullagh (http://www.mccullagh.org/) 


Make REAL money with your website!

The entire AOH site is optimized to look best in Firefox® 2.0 on a widescreen monitor (1440x900 or better).
Site design & layout copyright © 1986-2014 AOH
We do not send spam. If you have received spam bearing an artofhacking.com email address, please forward it with full headers to abuse@artofhacking.com.