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07/15/2005 Archived Entry: "Child email registry compliance"

I've been thinking more about this lame-brained child protection email registry, and I've realized that compliance is impossible. In two words: email forwarding.

Consider my experience managing the ifeminists.net newsletter. Every few months, we would receive an "unsubscribe" request from someone had just received the newsletter, but who was not in our database! Then I would have to send a message to that person, something like this:

Hello. I'm the administrator for the ifeminists.net site. I can't find your email address "whoever@wherever.com" in our database. Is it possible that you subscribed using a different email address, or using a mail forwarding service? I need to know that address in order to unsubscribe you.

I need to ask, because the recipient's email address never appears in the newsletter email. It only appears as the "envelope recipient" from our mail-list software. (A savvy recipient can usually dig this out of the email headers.)

Now suppose that little Tommy in Michigan is using an email forwarding service, and uses it to subscribe to the ifeminist newsletter. And suppose his parents add his "real" email address to the do-not-spam registry. We could scrub our email list against the state registry all year, and we would never remove little Tommy. We have no way of knowing about his email forwarding.

So we send the weekly newsletter with some discussion of abortion or rape or porn laws, it gets forwarded to Tommy, and boom! we're hit with a $10,000 fine and 1 year in jail1, with no warning, no opportunity to correct the situation...and no possible way of knowing we were in violation.

Which leads to some interesting questions:

1. How do you prove you scrubbed your email list against the registry? As I understand it, sending email to an address on the registry is considered conclusive evidence that you did not scrub your list. Will the keepers of these registries keep an audit trail of everyone who submits an address for checking? If not, what kind of evidence can I keep that would be considered proof of scrubbing?

2. Suppose I can successfully prove that I dutifully scrubbed my email list. What liability then accrues to the email forwarding service? I could plausibly argue that I sent an email to a "clean" address, and it was they who sent it to a child-registry address. Will email forwarding services be required to scrub their lists against the child registry?2

I've said it before: legislators are techno-illiterates. Nine out of ten probably think Ohm's Law is subject to judicial review. These cretins need adult supervision merely to use a computer; they certainly shouldn't be legislating about computers.


[1] I've now seen the text of the Michigan law. 1 year/$10K for a first offense; 3 years/$30K for the third. The Utah law is not so clear, but it appearas to be $2,500 for a first offense.

[2] If I'm reading the Michigan law correctly -- who can be sure? -- in this circumstance, no liability accrues to the email forwarder. On the contrary, the forwarder can sue us in civil court for $5,000 for each message that he forwards to a minor.

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