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Why ribaldry could earn you prison time

CNET News.com's Declan McCullagh explains why you could face jail for sending a dirty joke to an unmoderated mailing list.

Send a raunchy e-mail to a minor, and you may wind up in jail.

That's the thrust of a new law about to take effect in Utah and Michigan that could become a harbinger for the rest of the nation.

Starting Friday, parents in those two states will be able to add their children's e-mail addresses to a "do not contact" registry. Anyone who goes ahead and sends e-mail deemed to be off-color or "harmful to minors" could be imprisoned for up to three years.

The idea sounds wholesome enough, but it could snare legitimate Internet companies who rely on e-mail to contact their customers. Critics say it could capture discussions or advertisements relating to homosexuality, alcohol, sex, cigarettes, certain pharmaceuticals, gambling and more.

"Nobody knows these laws are there," said Anne Mitchell, president of the Institute for Spam and Internet Public Policy (ISIPP). "The businesses we (informed) are absolutely in a panic. There are many senders this affects very seriously."

The text of the law is hardly clear, but it seems reasonable to conclude that...the DMCA should not apply.

Though the registries in Michigan and Utah differ slightly, the general approach is the same. The registries will begin by gathering together children's e-mail addresses. Eventually, instant-messaging screen names, telephone numbers and other "electronic addresses" are supposed to be added.

Schools and "other institutions or entities" serving those under 18 years old may place their entire domain name in the registry. If Utah's Ogden City School District chose that option, for instance, no off-color e-mail to any ogden.k12.ut.us address would be permitted.

You can check whether someone's on the list by paying a fee. Michigan is expected to charge 0.007 cents and Utah 0.005 cents per verification--meaning that the monthly fee would be $120 to keep a million-person mailing list scrubbed and current.

Rather than make the entire database available to potential spammers, the system is supposed to only confirm or deny whether addresses are on the list. Dennis Darnoi, an aide to Mike Bishop, a Republican state senator in Michigan, said that residents can sign up through the official state Web site starting Friday. Michigan's restrictions on e-mail senders take effect a month later. (Representatives in Utah didn't return phone calls.)

Violations of both the Michigan and Utah laws can be punished with civil fines and criminal prosecutions. Michigan treats it as a computer crime and permits lawsuits to be filed by aggrieved Internet service providers, end users and the attorney general.

"Horribly written" laws
What worries companies that rely on e-mail is that it's not clear what an aggrieved parent or ambitious prosecutor might deem "harmful to minors." One federal appeals court ruled that gay-themed publications, sex education sites and even Salon.com could fall under that umbrella.

"Both of these laws are horribly written," says Mitchell, the ISIPP's president. "Nobody's really clear about what's permitted or unpermitted." Her group, which runs a reputation service for e-mail senders, has organized a telephone seminar this week to explain the laws to e-mail marketers.

One major difference between the two states is that Michigan's rules apply only to advertisements. Utah's law regulates even noncommercial correspondence with off-color material--a requirement that could technically trap someone sending a dirty joke to an unmoderated mailing list with a registered minor on it.

That shotgun approach worries the American Civil Liberties Union, which questions whether the law violates the First Amendment. "You don't have the same governmental interest across the same spectrum of minority ages," says Marv Johnson, a legislative counsel for the ACLU in Washington, D.C. "What may be inappropriate for a 5-year-old may be appropriate for a 17-year-old. Older minors may well have an interest in this information."

Johnson also pointed to a June 2004 report by the Federal Trade Commission, which unanimously concluded that a "do not e-mail" list would be a bad idea. For one thing, any e-mail registry can't stop overseas or illegal spam.

Even placing First Amendment concerns aside, it's not clear whether the state laws could survive a legal challenge. The federal Can-Spam law was designed to zap any state law that "expressly regulates the use of electronic mail." In other words, Michigan and Utah parents who joined the registry may find it doesn't survive very long--if it even worked at all.