[Federal Register: January 29, 2004 (Volume 69, Number 19)]
[Proposed Rules]
[Page 4263-4267]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29ja04-22]
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FEDERAL TRADE COMMISSION
16 CFR Part 316
RIN 3084-AA96
Label For E-mail Messages Containing Sexually Oriented Material
AGENCY: Federal Trade Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In this document, the Federal Trade Commission (``FTC'' or
``Commission'') seeks comment on the proposed rule setting forth the
mark that is to be included in commercial electronic mail (``e-mail'')
that includes sexually oriented material. Section 5(d) of the
Controlling the Assault of Non-Solicited Pornography and Marketing Act
of 2003, Public Law 108-187 (Dec. 16, 2003) (``CAN-SPAM Act'' or ``the
Act'') directs the Commission to prescribe, within 120 days of
enactment of that law, clearly identifiable marks or notices to be
included in or associated with commercial e-mail that contains sexually
oriented material. Pursuant to this mandate and its authority under
section 13(a) of the Act, the Commission issues this Notice of Proposed
Rulemaking and requests public comment on the proposed rule requiring
that the prescribed mark be placed on certain commercial e-mail.
DATES: Written comments will be accepted until February 17, 2003. Due
to the time constraints of this rulemaking procedure, the Commission
does not contemplate any extensions of this comment period or any
additional periods for written comments or rebuttal comment. Comments
that are not timely submitted and directly responsive to the specific
questions set forth in Section G of this document may not be
considered.
ADDRESSES: Comments should refer to ``Proposed Mark for Sexually
Oriented Spam, Project No. P044405.'' Comments filed in paper form
should also include this reference on their envelopes, and should be
mailed or delivered, as prescribed in Section C of the Supplementary
Information section, to the following address: Federal Trade
Commission/Office of the Secretary, Room 159-H, 600 Pennsylvania
Avenue, NW., Washington, DC 20580. Comments filed in electronic form
(except comments containing any confidential material) should be sent,
as prescribed in Section C of the Supplementary Information section, to
the following email box: adultlabel@ftc.gov. All federal government
agency rulemaking initiatives are also available online at http://www.regulations.gov
.
FOR FURTHER INFORMATION CONTACT: Jonathan Kraden, (202) 326-2614 (e-
mail: adultlabel@ftc.gov), Division of Marketing Practices, Bureau of
Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue,
NW., Washington, DC 20580.
SUPPLEMENTARY INFORMATION:
Section A. The CAN-SPAM Act of 2003
On December 16, 2003, the President signed into law the CAN-SPAM
Act. In enacting this legislation, Congress found, inter alia, as set
forth in section 2 of the Act, that ``some commercial e-mail contains
material that many recipients may consider vulgar or pornographic in
nature.'' \1\
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\1\ CAN-SPAM Act at section 2(a)(5).
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Indeed, citizens across the country have expressed concern over the
increasing amount of unsolicited commercial e-mail that they receive
and, most notably, the sexually explicit images that are often included
in these e-mails.\2\ This concern has prompted eighteen (18) states to
enact legislation in recent years requiring a label to be attached to
unsolicited commercial e-mails that include sexually explicit or
[[Page 4264]]
obscene materials. While all of these state labeling requirements
contain some variation on the words ``ADULT'' and ``ADVERTISEMENT,''
the requirements often differ on the placement and spelling of these
words.\3\ The CAN-SPAM Act creates a federal labeling requirement for
such e-mail messages, and section 5(d) of the Act directs the
Commission to prescribe clearly identifiable marks or notices to be
included in or associated with commercial e-mail that contains sexually
oriented material.
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\2\ A study done by FTC staff found that 17% of pornographic
offers sent in a sampling of unsolicited commercial e-mail contained
images of nudity that appeared automatically when a consumer opened
the e-mail message. Over 40% of these sampled e-mails contained
false statements in their ``From'' or ``Subject'' lines, making it
more likely that recipients would open the messages without knowing
that pornographic images would appear. False Claims In Spam, April
30, 2003, available at http://www.ftc.gov/opa/2003/04/spamrpt.htm.
\3\ The different state labels are ``ADV:ADLT'' (Alaska,
Illinois, Indiana, Kansas, Maine, Missouri, New Mexico, South
Dakota, and Tennessee); ``ADV:ADULT'' (Arkansas and Utah); ``ADV-
ADULT'' (Louisiana, Minnesota, North Dakota, Oklahoma, and
Pennsylvania); ``ADV: ADULT ADVERTISEMENT'' (Texas); and ``ADULT
ADVERTISEMENT'' (Wisconsin).
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Section B. Proposed Mark For E-mail Messages Including Sexually
Oriented Material
Pursuant to its mandate under section 5(d) of the Act and its
authority under section 13(a) of the Act, and after consulting with the
Department of Justice, the Commission hereby proposes that the phrase
``SEXUALLY-EXPLICIT-CONTENT:'' (hereinafter ``Proposed Mark'') be
required to be displayed in capital letters as the first twenty-seven
(27) characters in the subject line of any commercial e-mail message
that includes sexually oriented material.\4\ The Commission believes
that this phrase, which is derived from the definition of sexually
oriented materials in section 5(d)(4) of the CAN-SPAM Act, will provide
the most accurate description of the images included in a commercial e-
mail that includes sexually oriented materials.\5\ For that reason, the
Commission believes that the Proposed Mark will most clearly,
conspicuously and effectively alert the recipient to the fact that an
e-mail includes sexually oriented material that he or she may find
objectionable.
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\4\ The phrase ``SEXUALLY-EXPLICIT-CONTENT'' comprises 25
characters, including the dashes between the three words. The colon
(:) and the space following the phrase are the 26th and 27th
characters and are included to set off the Proposed Mark and help
make it more prominent.
\5\ See Sec. 5(d)(4) of the Act. Although the definition of
``sexually oriented material'' refers to ``sexually explicit
conduct,'' the Commission proposes substituting the word ``content''
for the word ``conduct'' in the Proposed Mark because the substance
of an e-mail message is more accurately defined by use of the word
``content.''
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In addition, the Commission added hyphens between the words in
order to facilitate appropriate filtering. Specifically, the Commission
is concerned that a filter set to block a simple English phrase like
``sexually explicit content'' could prevent delivery of an e-mail from
an anti-pornography group that used the phrase within the content of
their message. Use of hyphens creates a unique mark calculated to avoid
this problem. In addition, the Commission believes that the addition of
dashes between the three words and a colon and a space after the phrase
``SEXUALLY EXPLICIT CONTENT'' will serve to set off the Proposed Mark
and help to make it more unique and prominent.
The Commission also considered proposing use of the mark ``adult
advertisement.'' While many states across the country have labeling
requirements that use abbreviated variations of the words ``adult'' and
``advertisement,'' the Commission believes that use of the word
``adult'' in the proposed mark would not necessarily provide a
recipient with the most effective notice of what that e-mail contains.
There are many products or services (such as tobacco, alcohol, and
gambling) that could be considered ``adult'' in nature. For this
reason, the Commission believes that any proposed mark or notice must
include some mention of the ``sexual'' images that a recipient can
expect to see should he or she decide to open a labeled e-mail.
In addition to establishing the required mark, the proposed rule
tracks the elements of section 5(d)(1) of the Act, requiring that an e-
mail message that contains sexually oriented material include: Clear
and conspicuous identification that the message is an advertisement or
solicitation; a clear and conspicuous opt-out notice; a functioning
return e-mail address or other Internet-based mechanism for opt-outs; a
valid physical postal address of the sender; and a clear and
conspicuous statement that to avoid viewing the sexually oriented
material, a recipient should delete the email message without following
a sender's provided instructions on how to access, or activate a
mechanism to access, the sexually oriented material.
The proposed rule also tracks section 5(d)(2) of CAN-SPAM by
exempting situations where a recipient has given his or her prior
consent to receipt of a message. In addition, the proposed rule
clarifies that certain terms taken from the Act and appearing in the
proposed rule have the definitions prescribed by particular referenced
sections of the Act.\6\ Finally, Sec. 316.1(d) is a severability
provision that provides that if any portion of the rule is found
invalid, remaining portions will survive.
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\6\ Most of the terms listed in Sec. 316.1(c) occur in the text
of the proposed rule; several of them are not in the rule text, but
are listed there because CAN-SPAM incorporates and defines them
within the definition of another term. For example, the term
``procure'' is listed in the proposed rule's definitions [at Sec.
316.1(c)(7)] because the Act defines and includes that term in
another defined term, ``initiate,'' defined in the rule at Sec.
316.1(c)(5).
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Section C. Invitation To Comment
All members of the public are hereby given notice of the
opportunity to submit written data, views, facts, and arguments
concerning the Proposed Mark and the proposed rule. The Commission
invites written comments to assist it in ascertaining the feasibility
and effectiveness of the Commission's Proposed Mark and proposed rule.
Comments may be filed with the Commission in either paper or electronic
form, and must be filed on or before February 17, 2003.
1. A public comment filed in paper form should be mailed or
delivered to the following address: Federal Trade Commission/Office of
the Secretary, Room 159-H, 600 Pennsylvania Avenue, NW., Washington, DC
20580. The FTC is requesting that any comment filed in paper form be
sent by courier or overnight service because U.S. postal mail in the
Washington area and at the Commission is subject to delay due to
heightened security precautions. If the comment contains any material
for which confidential treatment is requested, it must be filed in
paper (rather than electronic) form, and the first page of the document
must be clearly labeled ``Confidential.''\7\
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\7\ Commission Rule 4.2(d), 16 CFR 4.2(d). The comment must be
accompanied by an explicit request for confidential treatment,
including the factual and legal basis for the request, and must
identify the specific portions of the comment to be withheld from
the public record. The request will be granted or denied by the
Commission's General Counsel, consistent with applicable law and the
public interest. See Commission Rule 4.9(c), 16 CFR 4.9(c).
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2. A public comment that does not contain any material for which
confidential treatment is requested may instead be filed in electronic
form (in ASCII format, WordPerfect, or Microsoft Word), as part of or
as an attachment to an email message sent to the following email box:
adultlabel@ftc.gov
3. Regardless of the form in which they are filed, all timely and
responsive comments will be considered by the Commission, and will be
available (with confidential material redacted) for public inspection
and copying on the Commission Web site at http://www.ftc.gov and at its
principal office. As a matter of discretion, the Commission makes every
effort to remove home contact information for individuals from the
public comments it receives before placing those comments on the FTC
web site.
[[Page 4265]]
Section D. Communications by Outside Parties to Commissioners or Their
Advisors
Written communications and summaries or transcripts of oral
communications respecting the merits of this proceeding from any
outside party to any Commissioner or Commissioner's advisor will be
placed on the public record. See 16 CFR 1.26(b)(5).
Section E. Paperwork Reduction Act
The Commission has determined that the proposed rule does not
include a collection of information subject to the Paperwork Reduction
Act of 1995 (44 U.S.C. 3506; 5 CFR 1320). The Proposed Mark that the
proposed rule requires to be displayed in the subject line ``is
information originally supplied by the federal government.'' See 5 CFR
1320.3(c)(2).
Section F. Regulatory Flexibility Act
The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601-612,
requires an agency to provide an Initial Regulatory Flexibility
Analysis (``IRFA'') with a proposed rule and a Final Regulatory
Flexibility Analysis (``FRFA'') with the final rule, if any, unless the
agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. See 5 U.S.C. 603-605.
The FTC does not expect that the Proposed Mark will have a significant
economic impact on a substantial number of small entities. This
document serves as notice to the Small Business Administration of the
agency's certification of no effect. Nonetheless, the Commission has
determined that it is appropriate to publish an IRFA in order to
inquire into the impact of the proposed rule on small entities.
Therefore, the Commission has prepared the following analysis.
1. Reasons for the proposed rule.
Section 5(d) of the CAN-SPAM Act directs the Commission to
prescribe, within 120 days of enactment of that law, clearly
identifiable marks or notices to be included in or associated with
commercial e-mail that contains sexually oriented material. The
proposed rule is intended to fulfill the obligations imposed by section
5(d).
2. Statement of objectives and legal basis.
The objectives of the proposed rule are discussed above. The legal
basis for the proposed rule is Sec. 5(d) of the CAN-SPAM Act.
3. Description of and, where feasible, an estimate of the number of
small entities to which the proposed rule will apply.
In general the proposed rule will apply to any person or entity who
initiates, originates or transmits a commercial e-mail message that
contains sexually oriented material. Determining a precise estimate of
the number of small entities subject to the proposed rule, or
describing those entities, is not readily feasible because the
assessment of whether an e-mail message contains sexually oriented
material turns on a number of factors that will require factual
analysis on a case-by-case basis. The Commission invites comment and
information on this issue.
4. Description of the projected reporting, recordkeeping, and other
compliance requirements of the proposed rule, including an estimate of
the classes of small entities that will be subject to the requirement
of including the Proposed Mark and the type of professional skills that
will be necessary for inclusion of the Proposed Mark.
The proposed rule does not impose any reporting or any specific
recordkeeping requirements within the meaning of the Paperwork
Reduction Act. The Proposed Mark would be included as the first twenty-
seven (27) characters of the subject line of any commercial e-mail
message that contains sexually oriented material. The Commission does
not believe that the insertion of additional characters into the
subject line of an e-mail will create a significant burden on persons
or entities who initiate a commercial e-mail message that includes
sexually oriented material. However, the Commission, as noted below,
seeks further comment on the professional skills that will be needed to
implement the proposed rule, the actual costs or expenditures, if any,
of including the Proposed Mark in the subject line of commercial e-mail
that contains sexually oriented material, and the extent to which these
costs may differ or vary for small entities.
5. Identification of other duplicative, overlapping, or conflicting
federal rules.
The FTC has not identified any other federal statutes, rules or
policies that would conflict with the requirement that the Proposed
Mark be included as the first twenty-seven (27) characters of the
subject line of any commercial e-mail message that contains sexually
oriented material. However, the Commission is requesting comment and
information about any statutes or rules that may duplicate or conflict
with the proposed rule, as well as any state, local, or industry rules
or policies that require labeling on commercial e-mail messages that
include sexually oriented material.
6. Discussion of significant alternatives to the proposed rule that
would accomplish the stated objectives of the CAN-SPAM Act and that
would minimize any significant economic impact of the proposed rule on
small entities.
Section 5(d) of the CAN-SPAM Act directs the Commission to
prescribe clearly identifiable marks or notices to be included in or
associated with commercial e-mail that includes sexually oriented
material. The proposed rule is intended to fulfill the obligations
imposed by Sec. 5(d). However, the Commission recognizes that there are
a number of variations and alternatives to the wording contained in the
Proposed Mark and also considered the phrases ``adult advertisement''
and ``sexually oriented material'' before ultimately deciding on the
Proposed Mark. The FTC welcomes comment on any significant
alternatives, consistent with the purposes of the CAN-SPAM Act, that
would minimize the economic impact of the proposed rule on small
entities.
Section G. Specific Issues for Comment
The Commission seeks comment on the proposed rule as set forth in
this Notice. The Commission is particularly interested in receiving
comments on the questions that follow. In responding to these
questions, include detailed and factual supporting information whenever
possible.
1. Are there any technical reasons why the Proposed Mark cannot be
included in the subject line of e-mails that include sexually oriented
materials?
2. Are there any technical reasons why the proposed rule will not
be effective?
3. Are there any technical ways to make the proposed rule more
effective?
4. Are there other notices or marks that would be more effective in
achieving the objective of the statute, including, but not limited to,
``ADULT ADVERTISEMENT'' and ``SEXUALLY ORIENTED MATERIAL''? Why?
5. Is the proposed rule adequate to inform a recipient that an e-
mail may include content that is objectionable or offensive due to its
sexual nature?
6. Is there additional information that a mark or notice should
include to ensure that a recipient is made aware that an e-mail
includes sexually oriented material?
7. Will the inclusion of the Proposed Mark aid a filtering program
in blocking or filtering e-mail messages that include sexually oriented
material?
8. Is there additional information that a mark or notice should
include to
[[Page 4266]]
ensure that a filtering program can effectively and efficiently filter
such an e-mail?
9. Does the inclusion of punctuation (such as a colon or a dash) in
the Proposed Mark in any way affect the ability of a filtering program
to filter such an e-mail?
10. Would the proposed rule unduly burden either entities selling
sexually oriented material through e-mail messages or those consumers
who were interested in purchasing sexually oriented material offered to
them through e-mail messages? How? Is this burden justified by
offsetting benefits to consumers?
11. How can the Commission measure the effectiveness of the
proposed rule in protecting consumers from unwanted sexually oriented
e-mail messages?
12. Please describe what effect the proposed rule will have on
small entities that initiate commercial e-mail messages that include
sexually oriented material.
13. Please describe what costs will be incurred by small entities
to ``implement and comply'' with the rule, including expenditures of
time and money for: any employee training; acquiring additional
professional skills; attorney, computer programmer, or other
professional time; and preparing and processing relevant materials.
14. Are there ways the proposed rule could be modified to reduce
the costs or burdens for small entities while still being consistent
with the requirements of the CAN-SPAM Act?
15. Please identify any relevant federal, state, or local rules
that may duplicate, overlap or conflict with the proposed rule. In
addition, please identify any industry rules or policies that require
small entities or other regulated entities to include clearly
identifiable marks or notices with commercial e-mail that contains
sexually oriented material.
16. Are the definitions set forth referencing the CAN-SPAM Act
acceptable or would commenters prefer that the legal definitions
themselves be imported into the proposed rule from the CAN-SPAM Act?
List of Subjects in 16 CFR Part 316
Advertising, Business and industry, Computer technology, Consumer
protection, Labeling
Accordingly, the Commission proposes to add a new part 316 of title
16 of the Code of Federal Regulations as follows:
PART 316--RULES IMPLEMENTING THE CAN-SPAM ACT OF 2003
Sec. 316.1 Requirement to place warning labels on commercial
electronic mail that contains sexually oriented material.
Authority: Pub. L. 108-187.
Sec. 316.1 Requirement to place warning labels on commercial
electronic mail that contains sexually oriented material.
(a) Any person who initiates, to a protected computer, the
transmission of a commercial electronic mail message that includes
sexually oriented material must:
(1) Include in the subject heading for the electronic mail message
the phrase ``SEXUALLY-EXPLICIT-CONTENT:'' in capital letters as the
first twenty-seven (27) characters at the beginning of the subject
line;\1\ and
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\1\ The phrase ``SEXUALLY-EXPLICIT-CONTENT'' comprises 25
characters, including the dashes between the three words. The colon
(:) and the space following the phrase are the 26th and 27th
characters.
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(2) Provide that the matter in the message that is initially
viewable by the recipient, when the message is opened by any recipient
and absent any further actions by the recipient, include only the
following information:
(i) The phrase ``SEXUALLY-EXPLICIT-CONTENT:'' in a clear and
conspicuous manner; \2\
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\2\ This phrase consists of twenty-seven (27) characters and is
identical to the phrase required in Sec. 316.1(a)(1).
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(ii) Clear and conspicuous identification that the message is an
advertisement or solicitation;
(iii) Clear and conspicuous notice of the opportunity of a
recipient to decline to receive further commercial electronic mail
messages from the sender;
(iv) A functioning return electronic mail address or other
Internet-based mechanism, clearly and conspicuously displayed, that--
(A) A recipient may use to submit, in a manner specified in the
message, a reply electronic mail message or other form of Internet-
based communication requesting not to receive future commercial
electronic mail messages from that sender at the electronic mail
address where the message was received; and
(B) Remains capable of receiving such messages or communications
for no less than 30 days after the transmission of the original
message;
(v) A valid physical postal address of the sender; and
(vi) Any needed instructions on how to access, or activate a
mechanism to access, the sexually oriented material, preceded by a
clear and conspicuous statement that to avoid viewing the sexually
oriented material, a recipient should delete the email message without
following such instructions.
(b) Prior Affirmative Consent. Paragraph (a) of this section does
not apply to the transmission of an electronic mail message if the
recipient has given prior affirmative consent to receipt of the
message.
(c) Definitions:
(1) The definition of the term ``affirmative consent'' is the same
as the definition of that term in section 3(1) of the CAN-SPAM Act of
2003, Public Law 108-187 (Dec. 16, 2003).
(2) The definition of the term ``commercial electronic mail
message'' is the same as the definition of that term in section 3(2) of
the CAN-SPAM Act of 2003, Public Law 108-187 (Dec. 16, 2003).
(3) The definition of the term ``electronic mail address'' is the
same as the definition of that term in section 3(5) of the CAN-SPAM Act
of 2003, Public Law 108-187 (Dec. 16, 2003).
(4) The definition of the term ``electronic mail message'' is the
same as the definition of that term in section 3(6) of the CAN-SPAM Act
of 2003, Public Law 108-187 (Dec. 16, 2003).
(5) The definition of the term ``initiate'' is the same as the
definition of that term in section 3(9) of the CAN-SPAM Act of 2003,
Public Law 108-187 (Dec. 16, 2003).
(6) The definition of the term ``Internet'' is the same as the
definition of that term in section 3(10) of the CAN-SPAM Act of 2003,
Public Law 108-187 (Dec. 16, 2003).
(7) The definition of the term ``procure'' is the same as the
definition of that term in section 3(12) of the CAN-SPAM Act of 2003,
Public Law 108-187 (Dec. 16, 2003).
(8) The definition of the term ``protected computer'' is the same
as the definition of that term in section 3(13) of the CAN-SPAM Act of
2003, Public Law 108-187 (Dec. 16, 2003).
(9) The definition of the term ``recipient'' is the same as the
definition of that term in section 3(14) of the CAN-SPAM Act of 2003,
Public Law 108-187 (Dec. 16, 2003).
(10) The definition of the term ``routine conveyance'' is the same
as the definition of that term in section 3(15) of the CAN-SPAM Act of
2003, Public Law 108-187 (Dec. 16, 2003).
(11) The definition of the term ``sender'' is the same as the
definition of that term in section 3(16) of the CAN-SPAM Act of 2003,
Public Law 108-187 (Dec. 16, 2003).
(12) The definition of the term ``transactional or relationship
messages''
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is the same as the definition of that term in section 3(17) of the CAN-
SPAM Act of 2003, Public Law 108-187 (Dec. 16, 2003).
(13) The definition of the term ``sexually oriented material'' is
the same as the definition of that term in section 5(d)(4) of the CAN-
SPAM Act of 2003, Public Law 108-187 (Dec. 16, 2003).
(d) Severability--The provisions of this part are separate and
severable from one another. If any provision is stayed or determined to
be invalid, it is the Commission's intention that the remaining
provisions shall continue in effect.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 04-1916 Filed 1-28-04; 8:45 am]
BILLING CODE 6750-01-P