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 <egoldman@private> Reply-To: Eric Goldman <egoldman@private> To: Declan McCullagh <declan@private> References: <42C0C95A.6070307@private> 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. <kidding> Eric. -- Eric Goldman Marquette University Law School egoldman@private <mailto:egoldman@private> 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 <michael@private> To: Declan McCullagh <declan@private> References: <42C0C95A.6070307@private> 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 Bjørn Hansen <ask@private> To: Declan McCullagh <declan@private> References: <42C0C95A.6070307@private> 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 <al@private> To: declan@private CC: btm@private > 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 <ayavuzk@private> To: Declan McCullagh <declan@private> References: <42C0C95A.6070307@private> 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 <jabolins@private> To: Declan McCullagh <declan@private>, Brad Templeton <btm@private> References: <42C0C95A.6070307@private> 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/)
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