The Federal Trade Commission's rule requiring sexually-oriented spam to include the subject line warning “SEXUALLY-EXPLICIT: ” is now in effect, with violators subject to fines and imprisonment.
The new federal CAN-SPAM Act, which took effect in January, required the FTC to adopt such a rule. The agency said the rule as they've constructed it follows CAN-SPAM's intention to protect e-mail recipients from unwitting exposure to sexually-oriented materials they don't wish to see.
The warning is required in both the subject line and "the electronic equivalent of a brown paper wrapper in the body of the message," the FTC said May 19, the day the rule took effect.
"This 'brown paper wrapper' is what a recipient initially will see when opening a message containing sexually-oriented material," the agency said. "The 'brown paper wrapper' will include the prescribed mark or notice, certain other specified information, and no other information or images."
Violators face civil suits and criminal penalties, including prison time and fines up to $250,000 for individuals and $500,000 for organizations or businesses, the FTC said.
Critics of the new rule include Jonathan L. Katz, a Maryland attorney whose practice involves First Amendment issues and has included adult entertainers. "This is a back door effort to violate people's First Amendment rights," Katz said to the Associated Press.
Outgoing FTC Chairman Timothy J. Muris, meanwhile, has told the Senate Committee on Commerce, Science and Transportation that the agency's new illegal spam-targeting task force has 136 members representing 36 states, several Justice Department units, and the FTC itself, with the agency training law enforcement on ways to track and catch spammers and holding monthly conference calls sharing information on spam trends.
Muris told the committee the FTC gathered public comments on plans and a timetable to set up a national do-not-email registry similar to the do-not-call registry affecting the telemarketing industry. The agency also gathered "relevant information" from several Internet service providers in the effort, he said.
“To supplement information collected from this public comment process, the staff has used additional tools to enhance its understanding of all relevant issues,” he told the Senate panel. “First, the staff has held meetings on the record with more than 80 interested parties representing more than 60 organizations to explore all aspects of the concept of a ‘Do-Not Email Registry’ from as many viewpoints as possible.”
Muris also told the panel the FTC would have a report to submit September 16, 2004 on setting up a system of rewards encouraging informants to report CAN-SPAM violators; a report due the following June on whether all commercial e-mail should include ADV in the subject lines; and, a report due in December 2005 on CAN-SPAM's efficacy.
