Tooele, Utah- Pornography built the Internet. Porn was the first product to become profitable online, and porn Web sites often adopt new technologies before they trickle down to conventional media outlets.

Scrubbing clean even small portions of the seedy Web have proven technologically and legally difficult. The most recent legislation to face a legal challenge is Utah’s attempt to scour children’s e-mail boxes so that the innocent youths are not exposed to pornographic solicitations.

The federal civil lawsuit, Free Speech Coalition v. Shurtleff, filed in November of last year, pits the adult entertainment industry against the state of Utah in a case that has wide-ranging implications for the entire country. If Utah succeeds, a torrent of states may decide to create similar Internet fig leaves that attempt to keep porn away from kids’ e-mail. If Utah fails, the Child Protection Registry statute, still less than a year old, will be yet another puritan effort shot down by courts.

Utah contracts with a company called Unspam Registry Services, Inc., whose offices are located in Park City. Unspam collects and maintains a database of children’s e-mail addresses on behalf of the Utah Division of Consumer Protection.

Companies that send e-mail advertisements for products unsuitable for minors & pornography, but also alcohol, tobacco and illegal drugs & are required to pay one half of one cent for each recipient to which they send. Even if none of their recipients are on the Utah registry, companies still pay. In fact, if none of the intended recipients are even Utah residents, businesses still pay.

Felony charges await the company that sends unsuitable e-mail to an address that is listed on the registry. The Division of Consumer Protection said no criminal charges have been filed against any companies or individuals since the law was created, but an administrative fine was charged to one Web pornography company in January. The company never paid the fine and so the debt was sent to a collection agency.

Critics say Unspam’s system is fraught with security risks, is too expensive for legitimate and law-abiding companies, and is powerless against international spammers who send pornography to American kids’ e-mail. Not only that, but previous laws, like the federal CAN-SPAM Act, have failed to control spam in even the most rudimentary ways. What makes Unspam any different?

Unspam chief executive officer Matthew Prince said Utah and Michigan & the only other state to contract with Unspam for child e-mail registry services & are pioneers.

“It’s like a Superfund site,” Prince said of the Internet. “We all agree that there are problems out there and the problems are substantial … [Because of 1st Amendment Protections] we can’t simply say you can’t send adult solicitations online. We can say if you’re gong to send adult solicitations, you have to comply, you have to do it in this time, place and manner.”

Steve Rohde, the lead attorney representing the Free Speech Coalition, disagrees and said that Utah’s law is unconstitutional primarily because it contradicts federal spam laws. Freedom of speech is not even secondary to the Coalition’s argument, Rohde said. Freedom of speech is third.

“The Utah law is preempted by the federal CAN-SPAM Act [of 2003] and the Commerce Clause [of the Constitution],” Rohde said. “We don’t even reach the First Amendment questions, which are very important to us, because we think that CAN-SPAM has occupied the field.”

The Coalition’s court document reads “Because Utah … establish[es] and effectively require[s] participation in a registry which Congress delegated to the [Federal Trade Commission], Utah’s Act and administrative regulations are expressly preempted by … the CAN-SPAM Act.”

He said the federal government explored the idea of a do-not-e-mail system in 2003, but expressly rejected the idea.

“Much of our motion is based on the FTC that has done extensive analysis and reports on this,” Rohde said. “This isn’t just our analysis as advocates.”

Rohde said if each state enacts its own law, companies will have to jump through dozens of hoops and monitor each state’s e-mail laws to ensure they are within compliance. If even a few states follow in Utah and Michigan’s footprint, cost and complications to companies would multiply exponentially.

Prince sees this issue differently. He said having states create and tinker with their own laws would help the country find a successful model to replicate.

“This country is strong because it is a bunch of little laboratories of democracy,” he said. “The good ideas rise to the top.”

He compared the do-not-e-mail registry effort to the National Do Not Call Registry. He said the Do Not Call movement started on a state level until the federal government codified the system in a National list.

“What happened was in 1992, Florida created a do-not-call [registry],” he said. “By 1997, you started to see other states … by 2003, 43 states had do not call laws.”

In 2003, the federal government created the National Do Not Call Registry. Prince said he hopes that do-not-e-mail registries replicate that trajectory.

“I don’t have any idea whether the Child Protection Registry and laws like it will follow that same path,” he said, “but the similarities between the two are strikingly similar.”

Rohde filed a preliminary injunction against the Utah Registry in early May. An injunction would suspend all operations of the registry until a final decision was made by the court. A never-lifted injunction was granted against the ill-fated Child Online Protection Act that languished under a 1st Amendment legal challenges. Even conservative stalwart Clarence Thomas agreed with the majority in 2004 that Internet laws that can not be enforced internationally may do more harm that good.

“Sometimes the libertarian wing of the court comes around and joins the civil libertarian wing,” Rohde said. “So the usual left-right distinction breaks down.”

According to the division of Consumer Protection, nearly 21 million intended recipients’ e-mail addresses have been scanned by the Utah system. It’s unknown just how many e-mails destined for children’s e-mail boxes have been blocked. Moreover, it’s impossible to know how many inappropriate e-mails have reached kids’ e-mail despite the Registry system and threats. Nonetheless, approximately $100,000 has been collected from businesses in the past year. Prince said there are roughly 300 companies that have applied to use the Utah registry.

Prince said roughly 30 percent of participating companies are e-mail service providers that manage e-mail for large companies. Another 30 percent are alcohol-related companies. He said tobacco companies have been most reluctant to participate.

Rohde said the fees are too high and interfere with interstate commerce from law-abiding companies. A company that sends a mass e-mail to 1 million recipients each month would pay Utah roughly $60,000 per year, even if no address were ever scrubbed from its list.

Prince said he agrees that the price should be reduced. The Utah legislature considered legislation that would have reworked the fees, but failed to enact any changes.

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