ANA Argues that Utah Child Protection Registry is Fundamentally Flawed and Unconstitutional

June 20, 2006

The Association of National Advertisers (ANA) has joined with five other groups in filing a “friend of the court” brief in an important lawsuit challenging the Utah Child Protection Registry Act.   

Dan Jaffe, ANA Executive Vice President, stated: “Marketers agree that children should be protected from inappropriate messages.  But Utah’s child protection registry will not accomplish that goal.  In fact, the Federal Trade Commission believes that the registry will actually create a greater security risk for the children of the state.  Utah’s child registry regime is fundamentally flawed and should be struck down by the courts.” 

The brief was filed with the U.S. District Court for the District of Utah, Central Division, in the case of Free Speech Coalition v. Mark Shurtleff,  (Case No. 2:05-cv-00949 DAK).  Joining ANA in the amicus brief were the American Advertising Federation, the American Association of Advertising Agencies, the Email Sender and Provider Coalition, the Electronic Frontier Foundation and the Center for Democracy and Technology.  

The Utah Child Protection Registry Act became law in 2004.  It purports to protect minors in the state from e-mail that advertises products or services that they may not legally purchase or contains material that is “harmful to minors.”    Parents register their children’s e-mail addresses with the registry and marketers are required to scrub their e-mail lists against the registry to ensure that no inappropriate messages are sent to minors.  There are stiff civil and criminal penalties for failure to comply with the Act. 

The Free Speech Coalition, a group of companies in the adult entertainment business, filed the lawsuit challenging the constitutionality of the state registry.  ANA and the other groups filed an amicus brief in support of the Coalition’s request that the law be struck down by the court.  

Jaffe stated: “The FTC has carefully studied centralized registry systems such as the Utah regime and concluded that they actually increase the privacy and security risks for children whose e-mail addresses are on the registry.  The state’s registry could truly become the ‘Fort Knox’ list of e-mail addresses for a criminal spammer, pornographer or pedophile.  As we have learned in recent months, no government agency or private company has developed an absolutely foolproof, hacker-proof or theft-proof database.” 

Noting that criminal spammers will not comply with the registry regime, the brief argued that the Utah law will:  “impose significant burdens and financial costs on legitimate email marketers and legitimate businesses from around the country who advertise otherwise lawful products and services to adults in Utah and to persons in other states.”  The brief also argued that the Utah law is preempted by the federal CAN SPAM Act, which provides a uniform, national system for regulating commercial e-mail. 

Jaffe stated: “The Utah law contains vague and undefined terms that prevent legitimate businesses from knowing which messages are prohibited.  For example, does the statute apply only to products and services that can never be lawfully purchased by a minor, such as alcohol or tobacco products?  Does it also apply to offers for credit cards and rental cars, for which minors do not have the legal capacity to contract for?  The law is impermissibly vague in a number of respects and therefore violates the due process rights of legitimate e-mail marketers.”