Utah Child Protection Registry Upheld Against CAN-SPAM Preemption, Commerce Clause, and First Amendment Challenges

In a fairly dense order issued last week, a federal district court in Utah upheld that state's "child protection registry" against a variety of challenges.  The decision [access the 33 page pdf version here] is interesting and relevant on a variety of levels.  

Background:  as described by the court, Utah has a law which allows parents or guardians to register "electronic 'contact points'" for their kids.  A contact point includes an email, instant message, telephone number, or any other electronic "address" (point of contact).  The law prohibits the transmission of any communication through a contact point which (1) advertises a product or service which the minor is pohibited from purchasing or (2) which contains "adult-oriented" material.  In order to screen email addresses against registered contact points, emailers must "[utilize] the Registry's so-called 'scrubbing' services and have Unspam[1] [a private entity] compare hash values to look for matches with any contact point on the Registry."  Plaintiff Free Speech Coalition sued under a variety of theories, including preemption, the Commerce Clause, and the First Amendment.  The court rejected all three arguments (on a Motion for Preliminary Injunction).

CAN-SPAM Preemption:  CAN-SPAM contains a preemption provision that preempts any state law "that expressly regulates the use of electronic mail . . . except to the extent that any such statute . . . prohibits falsity or deception."  There's no dispute that the regulation at issue does not address "falsity or deception," so in order to be saved, the Utah law had to come within an exception to preemption.  Under a heading titled "[s]tate law not specific to electronic mail," the preemption provision contains carve outs for (1) laws "not specific to electronic mail, including . . . tresspass, contract, or tort law; or . [(2)] . . state laws" which relate to fraud or computer crime.  The main dispute in the court's eyes is whether in order to be preempted the law must focus exclusively on email (or whether it covers among other things email).  Ultimately the court concludes that the issue is close and that Plaintiff failed to carry its preliminary injunction burden of showing "clearly" that the preemption provision applies.   

I cannot comment on the court's imposition of a heightened burden on preliminary injunction, but I will say that it's tough to reconcile the court's conclusion with the statute.  The structure of the statute supports Plaintiff's position.  CAN-SPAM contains a preemption provision which picks up any law which "expressly" (not exclusively) regulates the use of email.  The first exclusion from preemption refers to laws which are not specific to email and uses as an example contract and tort law.  To make it perfectly clear, I suppose the drafters should have included "zoning laws" or some other laws of general applicability, but I thought the use of "tort law" made it clear that this exception covers general laws that have nothing to do with email, but which end up affecting email.  Tresspass is a good example.  The examples used in this prong are different from the registry law which explicitly references email, and essentially creates an e-mail opt-out system for minors.  The second carve out refers to "fraud or computer crime."  While the statute does not provide much guidance,[2] this prong should probably be read to refer to state counterparts of statutes such as the Computer Fraud and Abuse Act.  It's hard to see how the Utah registry law can fall under the category of fraud and computer crime.  If so, the exception could end up swallowing the rule, as they say, and virtually any email statute could be considered a statute dealing with "fraud or computer crime".   

Off the top of my head I can't think of other CAN-SPAM cases which are squarely on-point on this issue.  (There are cases such as Mummagraphics, Buffalo Ventures, Gordon, etc., but none of those deal precisely with this issue.  See also this Junk Fax preemption case from last year as well as this article ("Preemption of State Spam Laws by the Federal CAN-SPAM Act").)  Still, even without such authority it seems like the court could have found in Plaintiff's favor on this issue based on the structure of the statute and its language.  In particular I found unpersuasive the sort of dichotomy between whether a law had to "exclusively focus on email" or "expressly refer to it."  (On a simple level, often a statute is broken up into sections and one section may apply to email while another applies to another form of communication.  Legislators can organize statutes in a variety of ways.  Requiring an "exclusive" email focus in a manner which Defendants alluded – i.e., a statute which covers fax, email, and sms is not necessarily preempted – could leave the preemption decision in arbitrary hands of statutory organization/layout.) 

The other point to consider is that CAN-SPAM already has a labeling requirement for emails containing "sexually oriented material."  15 U.S.C § 7704.  This certainly bolsters Plaintiff's field preemption argument, at least with respect to sexually explicit material, which is what I suspect, it focused on. In practical terms, Congress already provided a way to screen out sexually explicit material – set a filter that deletes messages containing this label. 

Commerce Clause:  A few quick thoughts on this argument.  State email laws are generally upheld against challenge on commerce clause grounds.  Heckel is a good example of an early case that upheld a state spam law (Washington law, in that case) against a dormant commerce clause challenge.  Commerce clause challenges are generally not thought to be viable against email laws.  However, there was one troubling aspect to the Utah scheme:  from the court's recitation of the facts, it seemed like the only way to scrub your email list was to pay to have it done.  The fact that Utah did not make a cost-free alternative to this, and forced you to pay to have it done raised some general red flags.  Again, I don't have a sense of specific commerce clause arguments and how they play out, but the fact that a mass emailer (who deals in content of the type subject to the statute, which is not illegal per se) must pay a certain amount of money to the State of Utah in order to ensure that its mailings do not run afoul of Utah law seems problematic.  Also, consider if all 50 states had similar schemes.  Probably untenable.  In some ways this seems like a glorified tax on certain types of emails.

First Amendment:  Plaintiffs made numerous First Amendment arguments, including that the registry was a prior restraint, it should be subject to strict scrutiny, and that aspects of the law were vague and overly broad.  At the end of the day, the Court focused on two things:  (1) the law is aimed at minors and content that is deemed "harmful" to minors and (2) the law is aimed at content that is blasted out – i.e., unsolicited.  Although it's tough to fit the case in to an easy analytical framework (the court doesn't really do this and I'm unable to either based on my own lack of knowledge or based on the inherent difficulty in doing so) this conclusion seems appropriate to me.  Sure, the decision can somewhat be contrasted with decisions striking down video game statutes aimed at curbing sales of violent video games to minors, and one could look at the recent decision striking down COPA as somehow supporting Plaintiff's position.  But at the end of the day, it will be very difficult for a court to strike down that a law which makes it more difficult to broadcast (non-obscene adult-oriented content) at email addresses designated as held by minors.  A blanket opt-out is easy to justify based on caselaw.  In fact, Rowan, the US Supreme Court case allowing a sort of limited opt-out for junk mail, dealt with opting out from adult/"objectionable" material.  It's a short skip from there to allowing parents to opt-out their kids out from receiving objectionable material.  Or is it?  (See, e.g., COPA decision, video game cases, Bong Hits for Jesus?.

Conclusion:  it seemed like the court got it wrong on at least two out of the three arguments.  In many respects the discussion could dig in a bit more.  In particular, I think legislative history on preemption was worth looking at more closely.  It will be interesting to see what the 10th Circuit does with this.  (Granted this ruling was at the preliminary injunction stage, the court may come to a different ruling later in the case.  Unlikely, but this is possible.)

[Thanks to Eric Goldman for the pointer.]

[1] The CEO of Unspam filed the Spamhaus amicus I mentioned last week.

[2] CAN-SPAM drafters: I hope you are cringing when you read this decision.

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