The CAN-SPAM Act became effective Jan. 1, 2004; in April, the FTC finally adopted the first rules explaining it. Most significantly, the new regulations require that sexually oriented spam must include “SEXUALLY-EXPLICIT:[space]” as the first 19 characters of the subject line, as specified. Details follow.
Recall that the urgency of federal spam regulations arose from a need to trump California’s zero-spam law that was also slated to take effect on January 1. The CAN-SPAM Act includes requirements that the FTC adopt regulations on various topics, which it now has done with respect to commercial electronic mail containing sexually oriented materials. Feb. 17, 2004 was the deadline established for public comment to the FTC concerning sexually oriented spam; the Commission received scores of comments, resulting in the newly announced rules, effective May 19, 2004, that modify the already effected statutory requirements for such communiqués.
In analyzing any set of requirements, the first step is to define the universe of activities to which the rules apply, and this is no exception. Remarkably, Congress and the Commission seem to have left a loophole – the special requirements for sexually explicit spam (there are other requirements for all spam) do not apply to depictions of unclothed female breasts, a feature that Congress and/or the Federal Trade Commission likely will remedy once it is noticed. Here is how that works, for you legal technicians:
The Act says, “[n]o person may initiate any commercial electronic mail message that includes sexually oriented material” without adhering to the listed requirements that are applicable to sexually oriented spam. 15 U.S.C. § 7704(d). “Sexually oriented material” is defined as any “material that depicts sexually explicit conduct (as that term is defined in section 2256 of title 18, United States Code), unless the depiction constitutes a small and insignificant part of the whole, the remainder of which is not primarily devoted to sexual matters. § 7704(d)(4).”
Thus, the special rules do not apply where there is a depiction of sexually explicit conduct that is a “small and insignificant part,” whatever that means, of a message not primarily devoted to sexual stuff. That exception is not meaningful to most readers.
Next, what is “sexually explicit conduct”? They took the definition out of the federal child pornography laws, and it says:
“‘[S]exually explicit conduct’ means actual or simulated –
“(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
“(B) bestiality;
“(C) masturbation;
“(D) sadistic or masochistic abuse; or
“(E) lascivious exhibition of the genitals or pubic area of any person.”
Remember, this is not limited to photographs; written descriptions are included – a verbal description of any of the above activities is covered. Another thing to know is that “lascivious exhibition of the genitals or pubic area” has been consistently interpreted not to require full or partial nudity. E.g., United States v. Knox, 32 F.3d 733 (3rd Cir. 1994) and United States v. Boudreau, 250 F.3d 279 (5th Cir. 2001). But conspicuously absent from the definition is anything about nudity other than with respect to genitals or the pubic area. So, fondling nude female breasts, for example, is not covered.
One other point about the application of these regulations is that they apply only to unsolicitede-mails. However, they are not considered solicited unless the recipient has given “affirmative consent,” which is not easy to give. It applies only where:
“(A) the recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the recipient’s own initiative;
“and
“(B) if the message is from a party other than the party to which the recipient communicated such consent, the recipient was given clear and conspicuous notice at the time the consent was communicated that the recipient’s electronic mail address could be transferred to such other party for the purpose of initiating commercial electronic mail messages.”
In other words, consent cannot be buried in terms and conditions somewhere. Moreover, consent to receive such materials from one source does not transfer to another source unless the recipient clearly understood the breadth of that consent. If you are seeking “affirmative consent,” this is one of those times when review by an attorney who is conversant with such things is warranted.
The regulations leave the CAN-SPAM Act largely untouched in terms of what is required in this type of e-mail, despite much urging to the contrary. The most significant task for the Commission was to formulate a standard subject line required for all sexually oriented e-mails. The lines were drawn between the industry, which wanted as short a tag line as possible so there would be room for more content on the face of the e-mail, and the censors, who wanted something that left no doubt that the e-mails were what they were. The net result after all was said and done was the following:
“[E]xclude sexually oriented materials from the subject heading for the electronic mail message and include in the subject heading the phrase ‘SEXUALLY-EXPLICIT:[space]’ in capital letters as the first nineteen (19) characters at the beginning of the subject line.... ”
In a footnote, the regulation requires that the phrase “SEXUALLY-EXPLICIT:[space]” comprises 17 characters, including the dash between the two words. The colon (“:”) and the space following the phrase are the 18th and 19th characters. 28 C.F.R. § 316.1(a)(1). Further required is that those 17 characters be ASCII characters, the Commission figuring that otherwise spammers could evade filters by using some other method. 28 C.F.R. § 316(c)(2). They caught the “\\ / iagra” thing found in spam that you certainly have received. Remember, the whole idea of this is to allow filters to stop sexy spam by anyone who so desires, and the Commission did not mince words in its 44-page analysis. A very specifically-defined subject line was needed, and the Commission created one.
Beyond that, the regulations do not alter the nub of the requirements in the Act. Sexy spam, as more particularly defined above, must have the following characteristics:
Begin the subject line with “SEXUALLY-EXPLICIT:[space]” as the first 19 characters and not have anything sexually explicit in the subject line.
That obviously has a dramatic impact on the ability to draw attention to what the e-mail is all about. Not being able to describe any sexual act is a severe constraint. You can say, however, things like “Hot, X-rated Videos” or something to that effect. But the requirement clearly allows filters to effectively block sexually oriented e-mail.
The remainder is what the Commission calls the “electronic plain brown paper wrapper” requirement:
The content of the e-mail must (1) conspicuously use the expression “SEXUALLY-EXPLICIT:[space]” (2) clearly proclaim that the message is an advertisement or solicitation, (3) include a clear and conspicuous notice of the right to refuse further e-mails from the sender; and an e-mail address, that is functioning and continues to do so for 30 days, where the recipient can exercise that right, and (4) display a valid postal address.
It is not clear that a “valid postal address” cannot be a post office box or a mail drop. In the comments, the Commission refers to a “physical postal address” but, in context, it appears to be contrasting postal addresses to e-mail addresses, and the purpose of the Act would be served adequately so long as the address is one where postal mail is received by the sender of the e-mail.
The return-e-mail requirement is obviously designed to allow recipients an easy opt-out. How e-mail folks will deal with that will be interesting.
The text of the message can only include what is required, plus instructions explaining (1) how to access the sexually explicit content and (2) that the recipient should delete the message without doing so if viewing it is not desired.
That means there can be more advertising in the subject line than in the text of the message! It appears, however, that there is no requirement as to what order all of this should fall in. So the subject line could say, for example, SEXUALLY-EXPLICIT: Red Hot, X-Rated Videos.” Then the message could also start with “SEXUALLY-EXPLICIT:[space]” followed by “Click Here to View,” with the required disclosures following the clicking icon.
Now, the Commission did not lose sight of what surely has dawned on everyone reading this: All of this will just go overseas. Comments were submitted complaining that the regulations were not sufficiently narrowly tailored because trans-Atlantic spam was not covered. The Commission’s response was as follows:
“[One of the comments] argues that the Rule does not directly advance a substantial governmental interest, because it will ‘address only spam originating in the United States,’ and because the Rule ‘will likely not be enforceable against off shore spammers.’ However, [that] assertion is incorrect. Spammers operating from abroad but targeting United States residents are, in fact, subject to the requirements of the Rule and are subject to law enforcement actions in the United States for any violations of the Rule. Under the CAN-SPAM Act, a violation of the Rule is enforceable as if it were an unfair or deceptive act or practice under the FTC Act. The FTC Act has often been used to obtain relief from foreign defendants [citing 10 cases in a footnote]. Thus, where foreign spammers aim their campaigns at residents of the United States (and constitutional ‘minimum contact’ requirements for jurisdictional purposes are met), such spammers are subject to legal action under the Rule in the United States.”
Lacking, of course, is the analysis of the “minimum contacts” requirements and any analysis of whether an enforcement action against an international spammer would have any meaningful “teeth.” Having said that, however, the Commission overlooked the fact that a violation of the regulations applicable to sexually oriented e-mails, unlike most of the remainder of the Act, is a crime, punishable by up to five years in the hoosegow. If illegal sexually oriented spam advertises a product or service of an American outfit, laws against aiding and abetting and against conspiracy kick in, which can be found in 18 U.S.C. §§2 and 371. “Follow the money,” if you remember the Watergate days, and that is precisely what they will do. And even without those villain statutes, the CAN-SPAM Act has its own provisions for liability to the advertiser if the affiliate spammer violates the rules.
It will be interesting to see how this plays out. Obviously, look for more pop-up advertising as one consequence. Relatively speaking, however, these regulations only wound spam. The forthcoming “do-not-spam” list will kill it – that is, if anyone complies.
Clyde DeWitt is a partner in the Los Angeles, Calif.-based, national law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online’s offices; at his office at 12121 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025; or at [email protected]. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
