I wrote on Friday about the new registry of kids’ email addresses being set up by the state of Michigan. I wasn’t impressed. A commenter pointed out an important fact I missed: emailers have to pay a fee of $0.007 to screen each address against the list.
(One of the occupational hazards of blogging is the risk of posting without meticulous research. Fortunately such oversights can be corrected, as I’m doing here. My apologies to readers who were temporarily misled.)
I still worry that the list will leak information about kids’ email addresses to emailers. The fee will raise the cost of fishing expeditions designed to guess which addresses are on the list, to the point where it probably won’t be worthwhile for an emailer to launch blind guessing attacks. But emailers will still learn the status of addresses that are already on their lists.
The main effect of the fee is to turn the whole program into a tax on bulk emailing. The tax operates even if only a few kids’ addresses are registered, so parents worried about leaking their kids’ addresses can safely decline to register them. So let’s look at this as a tax scheme rather than a child protection program.
It’s an oddly structured tax, charging a bulk emailer $0.007 for each email address he mails to within a thirty-day period. (Emailers must re-check their lists every thirty days to avoid a violation.) And it only applies to bulk emailers who promote products that kids aren’t allowed to own. That includes some products whose promotion the state is particularly eager to control (e.g., drugs and gambling) as well as some products that are innocuous but inappropriate for kids (e.g., vehicles).
Why isn’t this structured simply as a tax on bulk email? We’d have to ask a free speech lawyer to be sure, but I wonder whether a tax on speech, and especially a tax that applies only to some kinds of speech, would be constitutionally suspect. Connecting it to the state interest in protecting kids from harmful commercial speech may provide some cover. (I could be off base here. If so, I’m sure commenters will set me straight.)
The tax seems unlikely to generate much revenue for the state. Including administrative costs, it may cost the state money. Presumably the goal is to change emailers’ incentives.
The incentive effect on outlaw spammers will be zero. They’ll just ignore this law, and add it to the list of laws they are already violating.
Gray hat spammers, who operate aboveboard and call themselves legitimate businesspeople, will see their costs increase. The tax will impose a fixed cost per address on their list, but independent of the number of messages sent to that address within a month. Adding to fixed costs will tend to cause consolidation in the gray hat spammer business – if two spammers share a list, they’ll only have to pay the tax once. It’s getting harder and harder to be a gray hat spammer already; this will only squeeze the gray hats further.
With the tax angle added, the Michigan program might turn out to be good policy. But I still wouldn’t register my own kid.
