[Federal Register Volume 69, Number 75 (Monday, April 19, 2004)]
[Rules and Regulations]
[Pages 21024-21034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8679]
[[Page 21023]]
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Part III
Federal Trade Commission
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16 CFR Part 316
Label for E-mail Messages Containing Sexually Oriented Material; Final
Rule
Federal Register / Vol. 69, No. 75 / Monday, April 19, 2004 / Rules
and Regulations
[[Page 21024]]
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FEDERAL TRADE COMMISSION
16 CFR Part 316
RIN 3084-AA96
Label for Email Messages Containing Sexually Oriented Material
AGENCY: Federal Trade Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Federal Trade Commission (``FTC'' or
``Commission'') issues its Final Rule pursuant to the Controlling the
Assault of Non-Solicited Pornography and Marketing Act of 2003 (``CAN-
SPAM Act'' or ``the Act'').\1\ Section 7704(d) of the Act requires the
Commission, within 120 days of the date of the enactment of the CAN-
SPAM Act, to prescribe a mark to be included in commercial electronic
mail (``email'') that contains sexually oriented materials.
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\1\ Pub. L. 108-187 (codified at 15 U.S.C. 7701 et seq.).
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EFFECTIVE DATE: The Rule will become effective on May 19, 2004.
ADDRESSES: Requests for copies of the Rule and the Statement of Basis
and Purpose should be sent to Public Reference Branch, Room 130,
Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC
20580. Copies of these documents are also available at the Commission's
Web site, http://www.ftc.gov.
FOR FURTHER INFORMATION CONTACT: Jonathan Kraden, (202) 326-3257,
Division of Marketing Practices, Bureau of Consumer Protection, Federal
Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580.
SUPPLEMENTARY INFORMATION: The Rule implements the requirements of the
CAN-SPAM Act by requiring that any person who initiates, to a protected
computer, the transmission of a commercial email that includes sexually
oriented material must: (1) Exclude sexually oriented materials from
the subject heading and include in the subject heading of that email
the mark ``SEXUALLY-EXPLICIT: ''; and (2) provide that the matter in
the email message that is initially viewable when the message is opened
include only certain specified information, not including any sexually
oriented materials. The Rule also exempts situations where a recipient
has given his or her prior consent to receipt of a sexually oriented
message; clarifies that certain terms taken from the Act and appearing
in the Rule have the definitions prescribed by particular referenced
sections of the Act; and includes a severability provision that
provides that if any portion of the Rule is found invalid, the
remaining portions will survive.
Statement of Basis and Purpose
I. Introduction
As expressly set forth in Section 7701(a)(5) of the CAN-SPAM Act,
Congress found that ``some commercial email contains material that many
recipients may consider vulgar or pornographic in nature,'' \2\ and
this finding, in part, prompted passage of this legislation. Congress'
finding reflects the serious concern of large segments of the
population regarding the sexually explicit material that is often
included in email messages. A recent survey of computer users found
that ``when asked to identify the type of content that bothers [email]
users most * * * pornography exceeds all others, by nearly four times
more than any runner-up.'' \3\
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\2\ 15 U.S.C. 7701(a)(5).
\3\ Deborah Fallows, Spam: How It Is Hurting Email And Degrading
Life On The Internet, Pew Internet & American Life Project, October
22, 2003 available at www.pewinternet.org/reports/toc.asp?Report=102. (``Among the types of spam that are out there,
users were most bothered by pornography (53%), followed by pitches
for products and services (14%), and investment deals and financial
offers (11%).''). (emphasis in original).
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To combat this problem, Congress included Section 7704(d) in the
CAN-SPAM Act. This section of the Act directs the FTC to prescribe
``clearly identifiable marks or notices to be included in or associated
with commercial electronic mail that contains sexually oriented
material, in order to inform the recipient of that fact and to
facilitate filtering of such electronic mail.'' \4\ The Act also
requires that any person who initiates a commercial email that contains
sexually oriented material: (1) Include the mark prescribed by the
Commission in the ``subject heading for the electronic mail message;''
\5\ and (2) include only the following information in the initially
viewable matter of the message: (i) The Commission's prescribed mark;
\6\ (ii) identifier, opt-out and physical address information; \7\ and
(iii) instructions on how to access the sexually oriented material.\8\
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\4\ 15 U.S.C. 7704(d)(3).
\5\ 15 U.S.C. 7704(d)(1)(A).
\6\ 15 U.S.C. 7704(d)(1)(B)(i).
\7\ 15 U.S.C. 7704(d)(1)(B)(ii) referencing section 7704(a)(5)
of the Act.
\8\ 15 U.S.C. 7704(d)(1)(B)(iii).
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Pursuant to its mandate under section 7704(d) of the Act and its
authority under section 7711(a) of the Act,\9\ and after extensive
consultation with the Department of Justice, the Commission published a
Notice of Proposed Rulemaking (``NPR'') in the Federal Register on
January 29, 2004.\10\ The NPR sought comment on a number of issues,
including: The effectiveness of the Rule in aiding recipients to
recognize, and computers to filter, e-mails that contain sexually
oriented materials; any technical considerations that would affect the
implementation of the Rule; other marks that would be more effective in
achieving the objectives of the Act; and the effect of the Rule on
business entities, including small business entities.
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\9\ Section 7711(a) of the Act grants the Commission broad
rulemaking authority. The pertinent portion of Section 7711(a)
states that ``the Commission may issue regulations to implement the
provisions of this Act.'' 15 U.S.C. 7711(a).
\10\ 69 FR 4263 (Jan. 29, 2004).
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In response to the NPR, the Commission received eighty-nine (89)
comments from a wide array of interested parties. The commenters
included private individuals, technologists, public interest
organizations, and representatives of state and federal agencies. Based
upon the entire record in this proceeding, the Final Rule adopted by
the Commission is similar to the Proposed Rule. However, the Final Rule
contains some important changes from the Proposed Rule. These
modifications are based upon the recommendations of commenters and
careful consideration of relevant First Amendment case law.
The comments received in response to the NPR addressed three broad
topics. First, many commenters emphasized their distress at the problem
the Proposed Rule is designed to remedy, and generally expressed
support for the Commission's proposal. The comments from individuals
overwhelmingly supported the requirement that sexually oriented e-mail
messages be labeled.\11\ A typical commenter stated ``[p]lease, please,
please do something to protect us and our children from the junk'' and
wrote that she receives more than one hundred (100) pornographic spam a
day that ``disguise what the content of the e-mail is about'' so that
``when you open it, [you are] bombarded with nude photos of people
having intercourse.'' \12\
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\11\ A list of the comments and the names used to identify each
commenter is attached hereto as Appendix A. References to comments
are cited by the commenter's name followed by the appropriate page
designation.
\12\ Halliwell.
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Individual commenters favored the proposed requirements for a
number of reasons. Several believed that labeling will help protect
children from exposure to objectionable materials.\13\
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Others welcomed the opportunity to have some control over their e-
mail.\14\ Several commenters expressed frustration that, despite their
repeated efforts, they are unable to block and filter these
messages.\15\ In addition, commenters agreed that the Commission's
proposed mark (``SEXUALLY-EXPLICIT-CONTENT:'') in the subject line of
an e-mail message would effectively alert them that an e-mail contains
sexually oriented materials. Ultimately, the consensus of the great
majority of commenters can be summed up by one comment: ``Anything you
can do to limit porn spam would be so gratefully appreciated by my
entire household. I've had to close e-mail accounts because they
completely choke out normal mail.'' \16\
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\13\ See, e.g., Gregg (``Not only do these sexually oriented e-
mail not identify their content, and seek to fool the recipient with
false information about forwards and returns, but they contain words
which my children find appealing. My children are just reaching the
age where they are starting to e-mail their friends, and I would
like to be able to protect them as best I can from inappropriate and
offensive material.'') See also Lieberg.
\14\ See, e.g., Bordeaux (The Rule ``will give the general
public some control over what they read * * * Nowhere else in
society am I basically forced to look at content I don't desire to
see. Pornography magazines at least have covers, satellite
broadcasts have subscriptions and controls, but the inbox has had
very little ability to actually give control over such content.'').
See also Cooper; Wandasoup; and Manion.
\15\ See, e.g., Kautz (``I have built special rules into my e-
mail messaging, activated spam blockers and done whatever I could to
block these unwelcome messages, only to have them sneak through
anyway. I even changed my high speed Internet access provider hoping
to avoid such disgusting material. Nothing helps.''). See also Potts
(``On a daily basis I go through 5 different e-mail accounts
deleting [adult content] e-mails. Two of those mail accounts are for
my 12 and 13 year old daughters. Even with spam filters it does not
catch a vast majority of these e-mails. It is very frustrating * * *
.'').
\16\ Sunlemming.
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The second broad topic addressed by commenters is the First
Amendment implications of the Proposed Rule. The Commission's
assessment of the various First Amendment arguments advanced has direct
bearing on the ultimate form of the Final Rule. Discussion of First
Amendment concerns precedes the section-by-section analysis of the
Rule. The third broad topic touched on by a number of commenters
related to technical aspects of the Commission's proposal, such as the
character set to be used for the mark, placement of the mark, and
implementation of an ``initially viewable'' area that is free of
sexually oriented materials. These comments will be discussed in the
section-by-section analysis, which follows the discussion of First
Amendment concerns, immediately below.
II. First Amendment Concerns
The Commission received a comment from the Center for Democracy and
Technology (``CDT'') questioning the constitutionality of the Rule
under the First Amendment.\17\ CDT cites no cases and provides no
systematic analysis to support its assertion that the Rule is fatally
flawed ``because of the burdens the proposed label will place on
senders of constitutionally protected e-mail.'' \18\
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\17\ CDT at 1 (stating, in answer to the Commission's question
about potential conflict with other laws, ``there is indeed a very
important federal rule that conflicts with the proposed labeling
requirement, namely the First Amendment to the Constitution.'').
\18\ Id.
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CDT first argues that the Rule does not directly advance a
substantial governmental interest,\19\ because it will ``address only
spam originating in the United States,'' and because the Rule ``will
likely not be enforceable against off shore spammers.'' \20\ However,
CDT's 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.\21\ The FTC Act has often
been used to obtain relief from foreign defendants.\22\ 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.
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\19\ Id. This is one of the elements of Central Hudson Gas &
Elec. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (1980).
\20\ Id.
\21\ 15 U.S.C. 7706(a), (d).
\22\ See, e.g., FTC v. Domain Registry of America, Inc., No. 03-
CV-10075 (S.D.N.Y. 2003); FTC v. 1268957 Ontario Inc. et al., No.
01-CV-0423 (N.D. Ga. 2001); FTC v. Growth Plus Int'l Marketing,
Inc., No. 00C-7886 (N.D. Ill. 2000); FTC v. Verity Int'l, Ltd., 124
F. Supp. 2d 193 (S.D.N.Y. 2000); FTC v. Carlos Pereira et al., No.
99-1367-A (E.D. Va. 1999); FTC v. The Tracker Corp. of America, No.
97-CV-2654-JEC (N.D. Ga. 1998); FTC v. 9013-0980 Quebec Inc., No.
1:96CV-1567 (N.D. Ohio 1996); and FTC v. Ideal Credit Referral
Servs. Ltd., C96-0874R (W.D. Wash. 1996). See also, FTC v. BTV
Industries et al., No. CV-S-02-0437-LRH (D. Nev. 2002); FTC v.
Benoit (a.k.a. One or More Unknown Parties), No. 3:99 CV 181
(W.D.N.C. 1999).
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CDT also argues that the Rule is unconstitutional because domestic
spammers will not comply with it.\23\ The constitutionality of the Rule
can not rest on the belief that the Rule will not be obeyed. The
Commission does not believe that, simply because the government may not
be able to stop sexually explicit spam, it must sit idly by as its
citizens are exposed to objectionable materials that are being forced
into their homes. The First Amendment does not require that the
government ``make progress on every front before it can make progress
on any front.'' \24\ As the Supreme Court noted in Edge Broadcasting
Co., ``[w]ithin the bounds of the general protection provided by the
Constitution to commercial speech, [the Court] allow[s] room for
legislative judgments.'' \25\
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\23\ CDT at 1 (noting that ``domestic spammers are notoriously
elusive and not distinguished by their compliance with the law.'').
\24\ United States v. Edge Broad. Co., 509 U.S. 418, 434 (1993).
\25\ Id.
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CDT also argues that the Rule offends the First Amendment because
it will ``prevent senders of lawful material from reaching willing
recipients'' because ``it is designed to promote filtering by the ISPs
and takes control away from the end user. Ideally, mechanisms to reduce
spam should be modeled on a user empowerment approach, wherein the
user, taking advantage of filtering software on her computer, is the
ultimate arbiter of what content she receives.'' \26\
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\26\ CDT at 2.
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The Commission believes this argument cannot bear close scrutiny.
The fact that the prescribed mark may facilitate filtering does not
necessarily cede to Internet Service Providers (``ISPs'') the choice of
whether to receive e-mail messages containing sexually explicit
material. Rather, such filtering promotes opportunity for greater
consumer choice. The marketplace is remarkably flexible, and one would
expect that, if consumers desire choice, some ISPs would offer their
subscribers individual choice in the matter of filtering, or that some
ISPs would provide filtering to all subscribers while others would
cater to individuals who want to receive sexually explicit e-mail
messages without filtering. Simply because the mark facilitates
filtering does not mean that filtering will be ubiquitous, or that
consumers will not be able to exercise individual choice in the matter
of receiving sexually explicit commercial e-mail messages.
Finally, CDT argues that the Rule is unconstitutional because it
would serve as a ``prohibition against including lawful sexually
oriented material directly in a commercial e-mail.'' The Final Rule,
however, does not prohibit or suppress any speech. The Rule does not
prevent senders of sexually explicit e-mail from sending their messages
or
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selling their products. Nor does it prevent or encumber a willing
recipient from receiving these messages. The Rule merely directs where
and how materials may be presented in a manner that is easily
accessible to all who wish to view these materials, yet unobtrusive to
those who prefer not to receive them. The Rule does not place the e-
mail recipient who wishes to view such materials at any disadvantage as
compared to the e-mail recipient who does not wish to view them. Each
person is only a mouse click away from his or her desired result. To
that extent, the Rule facilitates commercial speech, by helping to
ensure that people are willing recipients of the e-mail messages that
are being sent. The Commission respectfully disagrees with the CDT and
believes that the Final Rule is a constitutionally permissible
regulation of commercial speech.
The CAN-SPAM Act applies only to commercial email messages.\27\ In
Central Hudson Gas & Electric Corp. v. Public Service Commission of New
York, the Supreme Court established the applicable analytical framework
for determining the constitutionality of a regulation of commercial
speech that is not misleading and does not otherwise involve illegal
activity.\28\ Under that framework, the regulation: (1) Must serve a
substantial governmental interest; (2) must directly advance this
interest; and (3) is not more extensive than necessary to serve the
government's interests \29\--that is, there must be ``a `fit' between
the legislative ends and the means chosen to accomplish those ends * *
* a fit that is not necessarily perfect, but reasonable * * * that
employs not necessarily the least restrictive means but * * * a means
narrowly tailored to achieve the desired objective.'' \30\
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\27\ The Final Rule applies only to the initiation of a
``commercial email message,'' which is defined in the Act as ``any
electronic mail message the primary purpose of which is the
commercial advertisement or promotion of a commercial product or
service.'' See 15 U.S.C. 7702(2)(a) (emphasis supplied). The Act
mandates that the Commission conduct notice and comment rulemaking
for the purpose of ``defining the relevant criteria to facilitate
the determination of the primary purpose of an electronic mail
message.'' See 15 U.S.C. 7702(2)(c). Accordingly, the Commission has
recently published an Advanced Notice of Proposed Rulemaking on this
issue. Pending completion of this proceeding, the interpretation of
``commercial email message'' looks to the core notion of commercial
speech as developed in applicable case law: commercial speech is
``speech that proposes a commercial transaction.'' Board of Trustees
of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989) (emphasis in
original). See also Virginia Pharmacy Bd. v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748, 762 (quoting Pittsburgh Press
Co. v. Human Relations Comm'n, 413 U.S. 376, 385 (1973)); Bolger v.
Youngs Drug Prods. Corp., 463 U.S. 60, 66 (1983).
\28\ 447 U.S. 557 (1980). For purposes of this analysis only,
the Commission assumes that the content of the emails in question
are at worst indecent and therefore constitutionally protected under
the First Amendment. This assumption is based on the fact that the
definition of sexually oriented materials under the Act covers
speech that may be merely indecent (which is protected speech under
the First Amendment) and not necessarily obscene (which is not
protected speech under the First Amendment). See Sable
Communications v. FCC, 492 U.S. 115, 126 (1989).
\29\ Central Hudson at 566.
\30\ Board of Trustees at 480.
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The Final Rule serves to advance two substantial government
interests: (1) protecting the privacy right of individuals to be free
from unwanted and unwelcome commercial intrusions into their homes, and
(2) supporting parental supervision of the materials to which their
children are exposed.
The government has a substantial interest in protecting the privacy
of individuals in their homes. In Rowan v. Post Office Dept., the
Supreme Court upheld a federal statute empowering a homeowner to bar
mailings from specific senders by notifying the Postmaster General that
he/she wished to receive no further mailings from that sender.\31\ The
Court stated:
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\31\ 397 U.S. 728 (1970).
We therefore categorically reject the argument that a vendor has a
right under the constitution or otherwise to send unwanted material
into the home of another. If this prohibition operates to impede the
flow of even valid ideas, the answer is that no one has a right to
press even ``good'' ideas on an unwilling recipient. That we are
often ``captives'' outside the sanctuary of the home and subject to
objectionable speech and other sound does not mean we must be
captives everywhere. The asserted right of a mailer, we repeat,
stops at the outer boundary of every person's domain * * *. To hold
less would tend to license a form of trespass and would make hardly
more sense than to say that a radio or television viewer may not
twist the dial to cut off an offensive or boring communication and
thus bar its entering his home. Nothing in the Constitution compels
us to listen to or view any unwanted communication, whatever its
merit; we see no basis for according the printed word or pictures a
different or more preferred status because they are sent by mail.
The ancient concept that ``a man's home is his castle'' into which
``not even the king may enter'' has lost none of its vitality, and
none of the recognized exceptions includes any right to communicate
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offensively with another.\32\
\32\ Id., at 737-38 (internal citations omitted).
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The special protection extended to an individual's home was again
stressed by the Supreme Court in Frisby v. Schultz, noting that ``the
State's interest in protecting the well-being, tranquility, and privacy
of the home is certainly of the highest order in a free and civilized
society.'' \33\ ``Individuals are not required to welcome unwanted
speech into their own homes and the government may protect this
freedom.'' \34\
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\33\ 487 U.S. 474, 484 (1988) (quoting Carey v. Brown, 447 U.S.
455, 471 (1980)). See also Mainstream Mktg. Servs. v. FTC, 2004 U.S.
App. LEXIS 2564, citing Frisby.
\34\ Frisby at 485.
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The Rule also advances the government's interest in supporting
parental supervision over the materials to which children are
exposed.\35\ In upholding a state statute that prohibited sales to
minors of material not defined as obscene for adults, the Supreme Court
stated in Ginsberg v. New York that the government's interest in the
``well-being of its youth'' and in supporting ``parents' claim to
authority in their own household'' justified the regulation of
otherwise protected expression.\36\
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\35\ See S. Rep. No. 102, 108th Cong., 1st Sess. at 6 (2003)
(demonstrating Congress' concern that: ``[u]nsuspecting children who
simply open emails with seemingly benign subject lines may be either
affronted with pornographic images in the email message itself, or
automatically and instantly taken * * * to an adult web page
exhibiting sexually explicit images.''). See also id. at 7 (noting
that spam with pornographic content or links to websites with
pornographic content, are also common and place ``additional burdens
on parents to constantly monitor their children's email (even when
they are already using an ISP's ``parental controls'')). In
addition, when called to speak about CAN-SPAM, several Senators
specifically referred to the government's interest in supporting
parental supervision over the materials to which children are
exposed. See 149 Cong. Rec. S13,025 (daily ed. Oct. 22, 2003)
(statement by Senator Schumer: ``[I]f parents can control what their
kids watch on TV, they should be able to control what their children
are exposed to on the Internet.''). See also id. at 13036 (statement
by Senator Enzi that the Act ``takes an important step in protecting
Internet and email users, especially minors, from receiving sexually
explicit, offensive and unwanted content in their emails.'').
\36\ 390 U.S. 629 (1968).
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The comments the Commission received in response to the NPR
demonstrate that sexually explicit email messages encroach upon
individuals' right to privacy in their own homes.\37\ Furthermore, it
is axiomatic, and confirmed by the record, that a substantial number of
people find unwanted sexually oriented email to be offensive and, given
the opportunity, would shield minors from exposure to such
materials.\38\ By requiring the
[[Page 21027]]
prescribed mark in the subject line and in the immediately viewable
area of the email message, the Rule will aid email recipients to filter
or delete this material without viewing it, thus advancing these
legitimate government interests. In addition, the Rule's requirement
for including the opt-out and other disclosures in the initially
viewable area will enable unwilling recipients to avoid future exposure
to such email messages. Finally, the requirement to exclude sexually
oriented materials from the subject line of an email message, and to
include only certain information in the ``initially viewable'' portion
of an email message helps shield individuals and children from exposure
to depictions of graphic sexual materials.
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\37\ See, e.g., Bordeaux; Manion; Roth; Gannon.
\38\ See, e.g., Potts; Giddens; Andre; Gregg. See also, National
Consumers League (citing an online survey about spam conducted in
late 2003 by the Trans Atlantic Consumer Dialogue (``TACD''), a
coalition of 65 consumer organizations from the United States and
European Union countries, that ``92 percent of the U.S. respondents
said that unsolicited commercial emails characterized as ``adult/
porn'' were the most objectionable or upsetting to receive * * *.''
Report of TACD's Online Survey on Spam, Oct.-Dec. 2003, available at
http://www.tacd.org/docs/?id=225.).
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A reasonable fit exists between the requirements of the Final Rule
and the government's interests if the Rule directly advances those
interests and is narrowly tailored.\39\ In this context, the ``narrowly
tailored'' standard does not require that the government employ the
least restrictive means to protect the substantial interests mentioned
above. All that is required is a proportional response.\40\
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\39\ Central Hudson at 564-65.
\40\ Board of Trustees at 480.
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The Commission believes that the requirements of the Final Rule are
narrowly tailored to fit the interests at stake. The Rule does not
forbid or suppress any speech. In fact, the Rule expressly allows
senders to include instructions in the email's ``initially viewable''
area on how to access the sexually explicit material. Further narrow
tailoring of the Rule's impact has been achieved through the ``prior
consent'' exclusion in Sec. 316.1(b). This provision places outside
the Rule's scope of coverage any email message sent with the
recipient's prior affirmative consent to receive the sender's sexually
oriented messages. Thus, the Rule covers no more email messages than
necessary to achieve its purpose, and merely restricts the place and
manner where sexually explicit content included in commercial emails
may be presented. In this way, the Rule permits sexually explicit email
messages while protecting potentially unwilling recipients from
unwelcome speech invading their own homes.
In addition, the Commission has further narrowed the length of the
prescribed mark to encroach as little as possible on space available
for senders' messages, consistent with achieving the Rule's purposes.
As originally proposed, the Rule required that commercial email
messages that contain sexually oriented materials include the phrase
``SEXUALLY-EXPLICIT-CONTENT:'' in the subject heading of the email
message.\41\ Commenters noted that no technical limitations on the
length of an email's subject line constrain the extent of the
prescribed mark.\42\ Yet, several commenters noted that when placed in
the subject line of an email message, a mark may push some or all of
the sender's subject line message beyond the area that is readable by
an email recipient.\43\
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\41\ The original mark proposed by the Commission comprises
twenty-seven (27) characters, including the dashes between the three
words and the colon (:) and the space following the phrase.
\42\ See, e.g., ICC at 2 (stating ``[t]here is no technical
reason that [they] can identify why the Proposed Mark cannot be
included in the subject line of emails that contain sexually
explicit material.''). See also Moore at 6.
\43\ See, e.g., Moore at 1-3, 6 (Although ``there are no
technical reasons why the Proposed Mark cannot be transmitted in the
Subject line of email messages,'' the length of the proposed mark
may be ``undesirable'' because computer programs and devices which
display email messages impose practical limits on the portion of the
subject line that is displayed to an email recipient.) See also
Hinckley (``[W]ith a prefix that long, having anything readable in
the subject line of a list of emails is going to be difficult.'').
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The Commission is concerned that the prescribed mark be narrowly
tailored so that no more speech is affected than is necessary to
advance the privacy and parental supervision interests that prompted
Congress to pass Section 5(d) and, accordingly, the Commission to adopt
this Rule. The Commission has determined that a shorter mark likely can
achieve the desired purpose as well, or nearly as well, as the longer
mark proposed initially. Thus, the Commission has shortened the mark in
the Final Rule to the phrase ``SEXUALLY-EXPLICIT:''.\44\ This shorter
phrase will provide senders with more room for their own messages while
still effectively advancing the government's interests and accurately
describing the materials in question.\45\
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\44\ The phrase ``SEXUALLY-EXPLICIT'' comprises seventeen (17)
characters, including the dash between the two words. The colon (:)
and the space following the phrase are the 18th and 19th characters.
\45\ By dropping the word ``content'' from the proposed mark,
and reducing the size of the mark from twenty-seven to nineteen
characters, the Commission has more narrowly tailored the mark,
providing a sender with an additional eight characters in which to
include his or her message.
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Similarly, the prohibition on sexually oriented materials in the
subject heading and in the ``initially viewable'' area, the
``electronic brown paper wrapper,'' \46\ is narrowly tailored to
directly advance the government's interests without completely banning
the inclusion of such materials. The Rule does not prohibit the
inclusion of sexually explicit materials in an email message, it merely
restricts the manner in which they can be displayed. Placement of the
prescribed mark in the subject line of a sexually oriented email should
aid recipients in the filtering of unwanted sexually oriented emails.
Nevertheless, not all email recipients have equal access to filtering
programs. Moreover, filtering programs are not foolproof. The record
confirms that, despite efforts to filter, sexually oriented emails
often find their way into an email recipient's inbox.\47\ Thus, without
a prohibition against sexually oriented materials in the subject
heading of an email message, the Rule would be much less effective in
that email recipients could be routinely confronted with materials that
are not filtered out and that they find offensive or objectionable.
Similarly, without a prohibition against sexually oriented materials in
the ``initially viewable'' area of an email message, the Rule would be
much less effective at insuring that email recipients are not
unwittingly and unwillingly subjected to offensive or objectionable
materials in email messages that appear in the preview pane of their
email program or are mistakenly opened, notwithstanding inclusion of
the mark in the subject line.
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\46\ The phrase is a reference to the wrapper placed over the
cover of sexually explicit magazines sent through the U.S. Postal
system. For purposes of the Rule, the phrase electronic ``brown
paper wrapper'' refers to the initially viewable area of an email
message that is free of sexually oriented materials.
\47\ See, e.g., Kautz; Potts.
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In addition, prohibiting sexually oriented materials from the
subject line promotes a range of consumer choice, rather than forcing
consumers into a rigid ``all or none'' regime. As one commenter noted
``[i]t may not be appropriate to assume that a recipient's willingness
to view one sexually oriented message is tantamount to a willingness to
view all sexually oriented messages--even within sexually oriented
material there are degrees and differences in taste.'' \48\ By the same
token, a consumer may not wish, through filtering or the use of an ISP
that offers filtering, to forego receipt of all email messages with
sexually explicit content as the price he or she must pay to avoid a
smaller subcategory of such messages that he or she finds
objectionable. Prohibiting sexually oriented materials from the subject
heading of an email message preserves the recipient's ability to make
his or her viewing choice, on a message-by-message basis, based on the
content of the subject line, without exposing that person to sexually
explicit content that he or she may find offensive. The email
[[Page 21028]]
recipient who wishes to view only certain types of sexually explicit
email messages could modify his or her filtering programs to allow the
delivery of sexually explicit messages and then choose among these
messages without being subjected to potentially offensive materials.
---------------------------------------------------------------------------
\48\ Moore at 7.
---------------------------------------------------------------------------
In addition to requiring the prescribed mark in the subject heading
and the ``initially viewable'' portion of an email message that
contains sexually oriented materials, the Final Rule also requires the
``initially viewable'' area of the message to include certain specified
information. In requiring the disclosures in the ``initially viewable''
area, the Rule directly advances the government's previously identified
interests and provides email recipients with important factual
information about the email message. In Zauderer v. Office of
Disciplinary Counsel, the Supreme Court considered a challenge to
compelled commercial speech in an advertisement by an attorney and
found that an advertiser's ``constitutionally protected interest in not
providing any particular factual information in his advertising is
minimal.'' \49\ In upholding a disclosure requirement in
advertisements, the Court noted that the statute at issue did not
prevent attorneys from conveying information to the public, it merely
required them ``to provide somewhat more information than they might
otherwise be inclined to present.'' \50\
---------------------------------------------------------------------------
\49\ 471 U.S. 626, 651 (1985).
\50\ Id. at 650.
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Similarly, the Final Rule does not prevent sending sexually
oriented materials to the public; rather, the Rule merely requires the
inclusion of important factual information that sexually explicit email
messages generally do not provide.\51\ The prescribed mark in the
subject heading of the email message alerts a recipient to the fact
that an email contains materials that a recipient may find
objectionable. Considering that sexually explicit email messages are
often mislabeled in an apparent attempt to confuse and deceive
recipients,\52\ the Commission believes it is appropriate to require
the mark in the subject heading of a sexually explicit email
message.\53\ In addition, placement of the prescribed mark, identifier,
opt-out and physical address information in the ``initially viewable''
area provides a recipient with important factual information about the
content of the message and the sender of the message, without forcing
the recipient to view materials that he or she may find objectionable.
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\51\ See, e.g., Libera; Perry; Andre; Gregg.
\52\ See, e.g., Haliwell; Gregg; Lieber.
\53\ See Zauderer at 651 (``[D]isclosure requirements trench
[sic] much more narrowly on an advertiser's interests than do flat
prohibitions on speech.'').
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In conclusion, the Commission believes that the Final Rule, as
mandated by Section 7704(d) of the Act, is analogous to the statute
upheld in Rowan and focuses on unwanted advertisements of a sexual
nature sent to individuals' homes. The First Amendment raises no
impediment to Rule provisions that will enable a person to filter out a
class of objectionable commercial communications, or in the
alternative, to receive accurate labeling information about the content
of the email message before being confronted with such content.
III. The Rule
A. Section 316.1(a)(1)--The Prescribed Mark
Section 316.1(a)(1) of the Proposed Rule would have required that
``[a]ny person who initiates * * * 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.''
\54\
---------------------------------------------------------------------------
\54\ 69 FR at 4266.
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Commenters agreed that the Commission's proposed mark would
effectively alert recipients that an email message contains sexually
oriented materials.\55\ Although the mark is not constrained by any
technical limitations in the length of an email's subject line,\56\
several commenters noted that when placed in the subject line of an
email message, a mark may push some or all of the sender's subject line
message beyond the readable area of the subject line.\57\ As noted
above, to address these concerns, the Commission has shortened the
prescribed mark to the phrase ``SEXUALLY-EXPLICIT: '' The Commission
believes that this shortened mark leaves as much space in the subject
line as possible, consistent with effectively aiding recipients to
recognize and filter emails that contain sexually oriented materials.
---------------------------------------------------------------------------
\55\ See, e.g., ICC at 3 (``[t]he proposed rule does satisfy the
statutory requirement to inform recipients that an email may contain
objectionable sexually explicit content.''). See also VanMeter at 1;
Chapman; USDOJ; Orlando at 1. Compare Attorney General of New Mexico
(the mark ``is not clear enough and needs to go further to
adequately warn recipients of the disturbing and objectionable
material that may be included with the email.'').
\56\ See, e.g., ICC at 2; Moore at 6.
\57\ See, e.g., Moore at 1-3; Hinckley.
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The Final Rule also specifies in Section 316.1(a)(1) that the
initiator of an email message containing sexually oriented material
must ``exclude sexually oriented materials from the subject heading * *
*'' This provision complements the requirement in Section 316.1(a)(2)
that the initially viewable area, or ``brown paper wrapper,''of an
email message, may contain only certain specified information--not
sexually oriented material.
This modification of the Rule ensures that neither the subject line
nor the initially viewable portion of the message body--that portion of
an email that a recipient may be able to see without taking any
affirmative action other than opening his or her email program--will
confront recipients with unwelcome verbal or visual depictions of
sexually explicit conduct.\58\ Without this modification, the
Commission believes that the Rule would not adequately advance the
legitimate privacy interest of email message recipients in not being
unwittingly subject to materials depicting such conduct--and not
allowing their children to be subjected to them. Absent this
modification, the Rule provisions designed to eliminate such materials
from the ``initially viewable'' portion of the email could easily be
defeated by inclusion of such material in the subject line (albeit,
preceded by the prescribed mark). The Commission, therefore, adjusted
the Rule to prevent this counterproductive outcome.
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\58\ See USDOJ (opining that ``the CAN-SPAM Acts provision
[Sec. 7704(d)] applies to email containing textual descriptions of
sexually explicit conduct without images.'').
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In formulating the shorter mark or notice, the Commission once
again considered using variations of the word ``adult'' in the
mark.\59\ The Commission concludes that use of the word ``adult'' in
the mark does not provide a recipient with the most effective notice of
the materials contained in a sexually explicit email. There are many
products or services that could be considered ``adult'' in nature,
making the phrase inappropriate and inaccurate in this context.\60\
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\59\ See, e.g., 69 FR at 4264.
\60\ For example, one of the first states to implement an
``adult'' labeling requirement was California in 1998. California's
``ADV:ADLT'' label applied to email messages containing a range of
``adult'' materials, including any ``unsolicited advertising
material for the lease, sale, rental, gift offer, or other
disposition of any realty, goods, services, or extension of credit,
that may only be viewed, purchased, rented, leased, or held in
possession by an individual 18 years of age and older.'' See Ca.
Bus. & Prof. Code Sec. 17538.4 (repealed 2003). See also New
Mexico's Unsolicited Facsimiles or E-mail Prohibition, which
requires the subject line of an email to include the phrase
``ADV:ADLT'' if ``the unsolicited advertisement advertises realty,
goods, services, intangibles or the extension of credit that may
only be viewed, purchased, licensed, rented, leased or held in the
possession by an individual eighteen years of age or older.'' N.M.
Stat. Ann. section 57-12-23(B)(4).
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[[Page 21029]]
In addition, one commenter suggested that ``a mark such as
`ADLT:SEX' would be sufficient to convey * * * that the message was
intended for adults and that it was sexually oriented, without
occupying as much display space.'' \61\ This phrase may alleviate some
concerns about using the word ``adult'' in the mark, but the materials
covered by the Final Rule are not simply sexual or adult materials, but
rather explicit images or explicit descriptions of sexual conduct,
including graphic depictions of various sex acts. While maximizing
brevity, the label should be as precise as possible, and should
accurately reflect the nature of the material whose presence it
signals. Since an email recipient decides on whether to view an email
message based on information contained in the email's subject line, for
the mark to be effective it must accurately signal the sexually
explicit materials contained in that email.\62\ For these reasons, the
Commission does not believe that the phrase ``ADLT:SEX'' provides an
email recipient with the most effective notice that an email contains
sexually oriented materials.
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\61\ See Moore at 6.
\62\ The American Heritage Dictionary defines the word
``explicit'' as: ``describing or portraying nudity or sexual
activity in graphic detail.'' American Heritage Dictionary of the
English Language (4th ed. 2000).
---------------------------------------------------------------------------
Several commenters also addressed whether the inclusion of a mark
in the subject line of an email message would aid in blocking or
filtering sexually oriented messages. One commenter stated that the
mark would ``admirably serve this purpose,'' \63\ noting that the mark
would work because ``[p]opular email programs, including NetScape
Communicator and Microsoft Outlook and Outlook Express have filtering
capabilities that likewise perform text matches within headers,'' and
that he himself had ``created a spam-filtering software program that
operates by doing text matches within the headers of incoming email
messages.'' \64\
---------------------------------------------------------------------------
\63\ Oney at 1.
\64\ Id.
---------------------------------------------------------------------------
Other commenters agreed that the inclusion of the mark in the
subject heading of an email would assist a computer filtering program,
but noted that several technical issues, including the character set
used for the mark, the placement of the mark in the subject heading of
an email message, the use of punctuation in the mark, and the use of
non-English words in the mark should be considered to maximize the
effectiveness of any subject heading label.\65\ These technical
considerations are discussed below.
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\65\ See, e.g., Moore at 7 (agreeing that the inclusion of the
Proposed Mark would aid a filtering program in blocking unwanted
sexual emails, but noting that technical considerations may
ultimately limit the effectiveness of the mark). See also Oney at 1;
Hinckley.
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(i) The Use of a Single Character Set
As noted above, the Proposed Rule specified that the mark must be
displayed ``as the first * * * characters at the beginning of the
subject line.'' \66\ Numerous commenters suggested that the Final Rule
go further, to specify that a single character set is required for the
mark.\67\ One commenter specifically mentioned problems that other
countries have encountered when spammers used different character sets
to avoid filters, while still complying with the letter of the law.\68\
---------------------------------------------------------------------------
\66\ 69 FR at 4266.
\67\ See, e.g., Mason (The Commission should ``be very clear
that those exact characters, in a given, named character set, must
appear in the subject line.''); Koehn.
\68\ Mason.
---------------------------------------------------------------------------
The Commission is persuaded that to discourage evasion of the
labeling requirements, the Final Rule should specify the character set
in which the prescribed mark must appear. Therefore, the Final Rule
requires that the prescribed mark be in the ASCII character set.\69\
This requirement will maintain a single standard for the mark and
therefore should promote the effectiveness of filtering systems. The
Commission has added a definition to Section 316.1(c) of the Final Rule
to clarify that the word ``character'' means ``an element of the
American Standard Code for Information Interchange (``ASCII'')
character set.''
---------------------------------------------------------------------------
\69\ `ASCII' stands for American Standard Code for Information
Interchange. ASCII is the basic coding system which computers use to
communicate with one another. Computers can only understand numbers,
so an ASCII code is the numerical representation of a character such
as `a' or `@' or an action of some sort. The standard ASCII
character set consists of 128 decimal numbers ranging from zero
through 127 that are assigned to letters, numbers, punctuation
marks, and the most common special characters.
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(ii) Placement of the Mark in the Subject Line
In the NPR, the Commission proposed requiring that the mark be
displayed ``as the first twenty seven (27) characters at the beginning
of the subject line'' of any commercial email message that includes
sexually oriented materials.\70\ Several commenters questioned the
interaction between the mark and other tags that often occur in the
subject line of email messages, such as the abbreviations ``re:'' and
``fw:,'' which are automatically added to an email message that an
individual has respectively, sent in response, or forwarded.\71\ One
commenter noted that these tags could place the mark several characters
off of the beginning of the subject line of an email message, possibly
causing messages to slip by filters that were set up to recognize the
mark as the first characters of the subject line.\72\
---------------------------------------------------------------------------
\70\ 69 FR at 4266.
\71\ See, e.g., Hinckley (the Commission ``may want to clarify
that it's the first non-meta information in the subject, or give
more leeway for initial text (not to mention Fwd: or Re: type
items).''). See also Moore at 3-4, Oney at 1.
\72\ Moore at 3-4.
---------------------------------------------------------------------------
After reviewing the comments, the Commission has determined that no
change in the Rule is necessary to address the situation when these
tags are placed in the subject heading of an email message. A tag is
automatically placed in the subject heading of an email message only
after the original email recipient has taken some affirmative step
either to respond to or forward that email.\73\ Because these tags
result from a recipient's affirmative step, the recipient who forwards
or responds to such sexually oriented messages should delete any such
tags added on to the message.\74\
---------------------------------------------------------------------------
\73\ A recipient who forwards an email message that contains
sexually oriented material may be an initiating or transmitting
person within the meaning of Section 5(d) of the Act, and is
therefore responsible for complying with the Rule and the Act. In a
separate Federal Register notice, the Commission requested comment
on who should be considered a person who ``initiates'' an email
message when one recipient forwards the message to another. 69 FR
11776 (Mar. 11, 2004).
\74\ One commenter also noted that email discussion lists often
attach a prefix of the mailing list's ``listname'' to inform
recipients that the message was sent through a particular discussion
list. See Moore at 3. The Commission believes that the voluntary
nature of a discussion list provides a sender with the opportunity
to obtain prior affirmative consent from the list's recipients
before sending out any commercial email messages that contain
sexually oriented materials, thereby placing these messages outside
the Rule's scope of coverage.
---------------------------------------------------------------------------
(iii) The Effect of Punctuation on the Mark
The NPR also elicited comment on whether the inclusion of
punctuation in the mark would affect the ability of computer programs
to filter email containing the mark.\75\ The Commission included
punctuation in the mark (a dash between the two words and a colon and
space after the phrase) to make the phrase more recognizable, unique,
and prominent.
---------------------------------------------------------------------------
\75\ 69 FR at 4266.
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[[Page 21030]]
Several commenters addressed this issue and confirmed that the
inclusion of punctuation characters diminishes the likelihood of a
filtering program inappropriately or incorrectly filtering or blocking
an email message.\76\ Because the Commission did not receive any
comments that suggested that the punctuation in the mark would
frustrate or negatively effect a filtering program, or any that
suggested that other punctuation would be superior, the Final Rule
retains the proposed punctuation in the prescribed mark.
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\76\ See, e.g., VanMeter at 1 (``The Proposed Mark's inclusion
of hyphens between the words will address any concerns that a filter
set to block a simple English phrase like `sexually explicit
content' would prevent delivery of an email from an anti-pornography
group utilizing such a phrase in the content of their email.
Further, the use of the hyphens creates a unique mark that will
serve to make emails containing such information to be more
effectively and easily detected by recipients who do not wish to
receive such material.''). See also Moore at 8 (noting that the use
of odd spellings (such as ``ADLT'') would also have a similar
effect).
---------------------------------------------------------------------------
In addition, the Final Rule retains the requirement that the mark
be displayed in capital letters. The Commission believes that this
requirement makes the mark more prominent and noticeable, thereby
presenting recipients with an eye-catching phrase that should
immediately alert them to the sexual content of an email message. The
Commission received no negative comments regarding the requirement that
the mark be displayed in capital letters.
(iv) Non-English Alternatives
In the NPR the Commission chose to prescribe a mark that consisted
of words rather than images or icons.\77\ The Commission received no
comments that suggested that the prescribed mark should be anything
other than words. However, one commenter noted that since the mark
contains only English words, it may not provide effective notice to
people who do not speak English.\78\ The Commission is aware of the
limitations inherent in using English words in the mark, yet practical
considerations dictate such a choice.
---------------------------------------------------------------------------
\77\ The Commission selected words over images or icons for the
mark because of concerns about the efficacy of an image or icon in
alerting email recipients about the sexual nature of an email
message. Moreover, an icon or image that accurately depicted the
sexual materials in question may run afoul of the requirements of
the Final Rule, thereby frustrating the purpose of the statute.
\78\ Moore at 4.
---------------------------------------------------------------------------
As mentioned above, the viewable portion of the subject line of an
email message depends on the email program that a recipient is using
and the hardware configurations of the email recipient's computer. The
limited viewable area of a subject line dictates that the mark be short
in length while still providing an accurate description of the sexual
content of an email message. Because of these length limitations, it is
not feasible to include in the mark additional words or phrases
translating the mark into the wide range of languages that may be
spoken by various persons living in this country. In addition, nothing
in a recipient's email address identifies the language that he or she
may speak. The impossibility of determining the language that a
recipient speaks further diminishes the utility of incorporating
different languages into the Commission's prescribed mark. Furthermore,
the Commission believes that email recipients, regardless of their
native language, will quickly learn to identify the prescribed mark and
understand the relationship between the mark and sexually explicit
email messages. After reviewing the comments and considering the
practical limitations in placing a label in the subject heading of an
email, the Commission has decided to require that the mark be displayed
only in English.
B. Section 316.1(a)(2)--The Electronic ``Brown Paper Wrapper''
Section 316.1(a)(2) of the Rule tracks the elements of Section
7704(d)(1)(B) of the CAN-SPAM Act, and requires that an email message
that includes sexually oriented material include only certain
information in the body of the email that is initially viewable by the
recipient. Commenters focused on several aspects of this section of the
Rule, including: (1) Clarification of the requirements of the
electronic ``brown paper wrapper''; (2) the meaning of the phrase
``initially viewable area''; and (3) what information is allowed in the
initially viewable area.
(i) Clarification of the Requirements of the Electronic ``Brown Paper
Wrapper''
Several commenters sought clarification as to how the electronic
``brown paper wrapper'' applies to initiators of sexually oriented
emails.\79\ To address these commenters' concerns, the Commission
intends to make it clear that the Rule requires that initiators of
commercial emails that contain sexually oriented materials include the
prescribed mark in the subject heading of the email AND provide that
the initially viewable area of the body of the email contain only
certain specified information. The mark in the subject heading informs
a recipient that an email contains sexually oriented materials, while
the electronic ``brown paper wrapper'' ensures that should a recipient
open a sexually explicit email message, the recipient is not bombarded
with graphic sexual materials.\80\
---------------------------------------------------------------------------
\79\ See, e.g., Hinckley (``I can't find any description of how
the 'brown wrapper' is going to work.''); Koehn (``Is there any
technical definition of the 'brown paper wrapper.'''); Moore at 4.
\80\ Commercial emails that contain sexually oriented materials
sometimes appear automatically in a recipient's preview pane. These
situations make it more likely that the prescribed mark in the
subject line of an email message, in and of itself, would not fully
protect recipients from exposure to materials that they may find
objectionable or offensive.
---------------------------------------------------------------------------
With respect to the ``brown paper wrapper,'' the CDT characterized
the Rule as a ``damned if you do, damned if you don't'' labeling
requirement which is ``internally conflicting'' and that ``fails the
constitutional requirement of clarity in speech.'' \81\ The Commission
sees no such conflict or lack of clarity. The CDT's interpretation of
the Rule is based on a reading of Section 7704(d)(1)(B) of the CAN-SPAM
Act that would prohibit ``sending commercial email that includes
anything more than instructions on how to access sexually oriented
material, even if the material is lawful.'' \82\ This reading of the
Act is incorrect. Neither the Act, nor the Rule, excludes sexually
oriented materials from the body of an email message. The Rule merely
provides that these materials cannot be located in the subject line or
the area of the email that is initially viewable to an email recipient.
---------------------------------------------------------------------------
\81\ CDT at 3.
\82\ Id.
---------------------------------------------------------------------------
(ii) The ``Initially Viewable'' Area
Section 316.1(a)(2) of the Proposed Rule required any person who
initiates an email message that includes sexually oriented material to
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,'' only include certain
information. The Final Rule retains this requirement with only one
minor wording change. To make the provision more precise, the phrase
``the content of'' has been substituted for ``the matter in.'' \83\
---------------------------------------------------------------------------
\83\ See, e.g., USDOJ.
---------------------------------------------------------------------------
A number of commenters questioned how initiators of sexually
explicit materials should go about complying with the ``initially
viewable'' requirements. One commenter noted that the different email
protocol standards deal primarily with the manner in which information
is conveyed between computers and not with how that information is
ultimately
[[Page 21031]]
presented to the email recipient.\84\ This in turn creates problems
because the ``initially viewable'' area of an email may differ among
different recipients of that email, depending on a number of factors,
including the email program that a recipient is using and the hardware
configurations of the email recipient's computer.
---------------------------------------------------------------------------
\84\ Moore at 5 (noting that the Internet is composed of a wide
range of computing systems and devices, each with varying display
and input capabilities).
---------------------------------------------------------------------------
Nevertheless, an initiator of sexually oriented emails is not
without tools to ensure that the ``initially viewable'' portion of an
email message does not force the recipient to be confronted with
offensive and objectionable materials. Given the variables that
determine how an email message confronts a recipient, the Commission
believes that the most appropriate way to achieve the Act's goals is to
cast the Rule provisions in terms of a performance standard patterned
after the language in the Act.
The Commission will consider sexually oriented materials to be in
the ``initially viewable'' area of an email message if, upon opening
the message, the recipient can see the materials without the recipient
taking any further deliberate actions. The ``initially viewable'' area
of an email message will be deemed to be free of sexually oriented
materials if a recipient who wishes to view these materials must go
looking for them. An initiator of sexually explicit emails must
therefore structure the message to ensure that sexually explicit emails
require an affirmative step by the email recipient to view the
materials--for example, by scrolling down in order to view the sexually
explicit content,\85\ or clicking on a link to another section of an
email message structured with multiple parts or to an external location
such as a web server.
---------------------------------------------------------------------------
\85\ The Commission recognizes that situations in which a
recipient merely must scroll down through the initially viewable
area to see sexually explicit content present challenges. The size
of the area that must be above sexually oriented material in order
for the content to be outside the initial viewable area will vary
with the recipient's software and hardware at any given time, and
evolve with changes in technology and the price of technology.
---------------------------------------------------------------------------
(iii) Disclosures To Be Included in the Electronic ``Brown Paper
Wrapper''
The Final Rule provides that the portion of an email message that
is initially viewable, absent any actions by the recipient other than
opening the message, may include only certain specified information.
Like the Proposed Rule, the Final Rule closely tracks the requirements
of Section 7704(d)(1)(B) of the Act with only slight modifications to
improve the Rule's clarity and consistency.
(a) Section 316.1(a)(2)(i): The prescribed mark in the body of the
email message. Section 316.1(a)(2)(i) of the Proposed Rule would have
required that the initially viewable area of the email message include
the phrase ``SEXUALLY-EXPLICIT-CONTENT:'' in a ``clear and conspicuous
manner.'' \86\ The Commission received no comments on this requirement.
Therefore, the Final Rule requires the same mark, ``SEXUALLY-
EXPLICIT:'', be displayed in the initially viewable area, as in the
subject line of the email message.
---------------------------------------------------------------------------
\86\ This requirement stems from Section 5(d)(1)(B)(i) of the
CAN-SPAM Act, which states that the initially viewable area of an
email message should include ``to the extent required or authorized
pursuant to paragraph (2), any such marks or notices.'' The
Commission believes that this internal reference to another section
of the Act (paragraph (2)) is a typographical error because Section
7704(d)(3), not Section 7704(d)(2), directs the Commission to
prescribe a mark or notice that will be included in commercial email
that contains sexually oriented material. In addition, a review of
the history of the Act revealed that, before its final passage, in
prior versions of the Act, Section 7704(d)(2) directed the
Commission to prescribe the mark or notice. Thus, the confusing
reference to ``paragraph (2)'' is clearly the result of a reference
that was mistakenly left over from an earlier version of the Act.
---------------------------------------------------------------------------
(b) Section 316.1(a)(2)(ii-vi): Inclusion of identifier, opt-out,
and physical address in commercial email, and instructions on how to
access the sexually oriented materials. The Proposed Rule would have
required that the initially viewable area of a sexually oriented
commercial email message include only the following information: clear
and conspicuous notice that the message is an advertisement or
solicitation; a clear and conspicuous opt-out notice; a functioning
return email address or other Internet-based mechanism for opt-outs; a
valid physical postal address of the sender; and instructions on how to
access the sexually oriented material. This required information tracks
the language found in Section 7704(d)(1)(B)(ii) of the CAN-SPAM
Act.\87\ The Commission received no comments that directly pertain to
Sections 316.1(a)(2)(ii-vi) of the Proposed Rule, and therefore retains
these sections in the Final Rule with only one minor ``house-keeping''
change.
---------------------------------------------------------------------------
\87\ Section 7704(d)(1)(B)(ii) of the Act references
``information required to be included in the message pursuant to
subsection (a)(5).'' This subsection of the Act requires the
``Inclusion of identifier, opt-out, and physical address in
commercial electronic mail.'' 15 U.S.C. 7704(a)(5).
---------------------------------------------------------------------------
Except for the ``instructions on how to access the sexually
oriented material'' in Section 316.1(a)(2)(vi),\88\ all of the required
disclosures in Sections 316.1(a)(2) of the Final Rule are required to
be ``clearly and conspicuously'' displayed. As originally proposed,
316.1(a)(2)(v) did not require that the ``valid physical postal address
of the sender'' be clearly and conspicuously disclosed. The Commission
intends to dispel any notion that the valid physical postal address
could be lawfully displayed in micro print, in a color of type that
does not contrast with the background, or otherwise made hard to read
and understand. Therefore, to ensure that this information is presented
in a manner likely to be noticed by recipients, the Commission has
added the phrase ``clearly and conspicuously displayed'' to Section
316.1(a)(2)(v) of the Final Rule.
---------------------------------------------------------------------------
\88\ Because of the economic nature of the email message, the
Commission is not concerned that a sender of a commercial email
message that contained sexually oriented materials would fail to
clearly and conspicuously display his or her instructions on how a
potential buyer could access the materials.
---------------------------------------------------------------------------
(c) Section 316.1(b): Prior Affirmative Consent. Section 316.1(b)
of the Proposed Rule provided that the requirements of the Rule do not
apply ``to the transmission of an electronic mail message if the
recipient has given prior affirmative consent to receipt of the
message.'' This exception tracks the language found in Section
7704(d)(2) of the CAN-SPAM Act.\89\ The Commission received no comments
on Section 316.1(b), and, therefore, retains this section in the Final
Rule without changes.
---------------------------------------------------------------------------
\89\ 15 U.S.C. 7704(d)(2).
---------------------------------------------------------------------------
(d) Section 316.1(c): Definitions. Section 316.1(c) of the Final
Rule includes the definitions of a number of key terms of the Rule.\90\
Most of these terms are defined by references to the corresponding
sections of the Act. The Commission sought comment in the NPR as to
whether the definitions as set forth in the Proposed Rule were
acceptable and whether it would be preferable to include the legal
definitions themselves in the Final Rule.
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\90\ Most of the terms listed in Sec. 316.1(c) occur in the
text of the Final Rule; several of them are not in the Rule text,
but are defined in the Rule because CAN-SPAM incorporates and
defines them within the definition of another term. For example, the
term ``procure'' is listed in the Rule's definitions [at Sec.
316.1(c)(7)] because the Act defines and includes it in the term
``initiate.''
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Only one commenter suggested that the Rule should go beyond merely
referencing the Act's definitions and, for clarity's sake, should also
include the legal definitions in the Final Rule.\91\ At the other end
of the spectrum, another commenter worried that importing the full
statutory definitions into the Final Rule creates a risk that the Rule
may
[[Page 21032]]
become stale if Congress amends the Act, or sections of the Act to
which the Rule refers.\92\
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\91\ Orlando at 3.
\92\ Oney at 2.
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The Commission believes that by referencing the definitions found
in the Act, and any future modifications to those definitions, the
Final Rule will accurately and effectively track any future changes
made to the definitions in the Act.\93\ Except as discussed below, the
Commission has decided to maintain the method of defining key terms of
the Final Rule by reference to the Act.
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\93\ For example, the Act requires that the Commission go
through the rulemaking process to define the meaning of ``the
primary purpose of an electronic mail message.'' See 15 U.S.C.
7702(2)(c). It is possible that this rulemaking will alter the
underlying definition of ``commercial electronic mail message'' as
well as the definition of ``transactional or relationship
messages.''
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(i) The definition of ``sexually oriented materials''. The term
``sexually oriented material'' is defined in Section 7704(d)(4) of the
CAN-SPAM Act 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.'' \94\ (Emphasis supplied). Several commenters expressed
confusion regarding what materials would be considered ``sexually
oriented'' under the CAN-SPAM definition.\95\ The Department of Justice
(``DOJ'') opined that the Act applies to email messages that contain
textual descriptions of sexually explicit conduct without images.\96\
The Commission has determined that the phrase ``sexually oriented
materials,'' as defined in Section 7704(d)(4) of the Act, applies to
both visual images and written descriptions of sexually explicit
conduct.
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\94\ 15 U.S.C. 7704(d)(4).
\95\ See, e.g., Oney, Koehn, Nunex, Simon-Kissel.
\96\ USDOJ.
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Nothing in the text of the CAN-SPAM Act, nor in its legislative
history, indicates an intent to limit the application of Section
7704(d) to only visual materials. Referencing the definition of
``sexually explicit content'' from 18 U.S.C. Section 2256, the Sexual
Exploitation and Other Abuse of Children Act (``Abuse of Children
Act''), in CAN-SPAM's definition of ``sexually oriented material'' does
not necessarily import that Act's limitations in scope into Section
7704(d).\97\ Moreover, the phrase ``sexually explicit conduct,'' as
defined in the Abuse of Children Act is not itself limited to only
visual images.\98\
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\97\ The Abuse of Children Act, on its face, applies only to
visual images of child pornography. But referencing that Act does
not limit Section 7704(d) of CAN-SPAM to only visual images.
Similarly, CAN-SPAM's reference to the Abuse of Children Act (a
child pornography statute) does not limit CAN-SPAM's coverage to
only emails involving children.
\98\ Section 2256(2)(A) of the Abuse of Children Act, defines
``sexually explicit conduct'' to mean ``actual or simulated--(i)
sexual intercourse, including genital-genital, oral-genital, anal-
genital, or oral-anal, whether between persons of the same or
opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or
masochistic abuse; or (v) lascivious exhibition of the genitals or
pubic area of any person.''
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The Commission's interpretation that the definition of ``sexually
oriented materials'' covers both visual images and written descriptions
of sexually explicit conduct also takes into consideration the meaning
of the word ``depicts,'' as it is used in Section 7704(d)(4) of CAN-
SPAM.\99\ The American Heritage Dictionary of the English Language
defines the word ``depict'' to mean: ``(1) to represent in a picture or
sculpture; (2) to represent in words; describe.'' \100\ Thus, while the
primary meaning pertains to visual images, the secondary meaning
encompasses descriptions in words. It is clear that an unsolicited
commercial email could describe sexually explicit conduct in words as
easily as it could represent such materials in a picture, and both
types of depictions fall within the coverage of Section 7704(d) of the
CAN-SPAM Act.\101\
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\99\ Sexually oriented materials is defined under Section
7704(d)(4) of the CAN-SPAM Act as ``any material that depicts
sexually explicit conduct * * *'' (emphasis supplied).
\100\ American Heritage Dictionary of the English Language (4th
ed. 2000).
\101\ Numerous commenters expressed concerns over the large
number of unsolicited commercial emails they receive that are sexual
in nature (i.e., advertisements for sexual enhancing drugs.)
Although the ultimate decision as to whether an email message
includes a depiction of sexually explicit conduct will be based on a
review of the content of the individual email message, it is
important to recognize that the CAN-SPAM Act covers only those
commercial email messages that depict sexually explicit conduct, as
defined in the Act, and not all materials of a sexual nature.
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(ii) The definition of ``character''. As mentioned above, to help
maintain a single standard for the mark and therefore increase the
effectiveness of filtering systems, the Final Rule requires that the
prescribed mark be in the ASCII character set. Section 316.1(c),
therefore, has been expanded to include a definition of the word
``character'' to mean ``an element of the American Standard Code for
Information Interchange (``ASCII'') character set.''
IV. Paperwork Reduction Act
The Final Rule does not include a collection of information subject
to the Paperwork Reduction Act (44 U.S.C. 3506; 5 CFR 1320). The mark
that the Final Rule requires ``is information originally supplied by
the federal government.''\102\
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\102\ See 5 CFR 1320.3(c)(2).
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V. Regulatory Flexibility Act
The NPR included an initial regulatory flexibility analysis
(``IRFA'') under the Regulatory Flexibility Act (``RFA''),\103\ even
though the Commission did not expect that the Proposed Rule would have
a significant economic impact on a substantial number of small
entities. In addition, the Commission invited public comment on the
Proposed Rule's effect on small entities to ensure that no significant
impact would be overlooked.\104\
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\103\ 5 U.S.C. 601-612.
\104\ 69 FR at 4265-66.
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This Final Regulatory Flexibility Analysis (``FRFA'') incorporates
the Commission's initial findings, as set forth in the NPR; addresses
the comments submitted in response to the IRFA notice; and describes
the steps the Commission has taken in the Final Rule to minimize the
impact on small entities consistent with the objectives of the CAN-SPAM
Act.
A. Succinct Statement of the Need for, and Objectives of, the Final
Rule
The Final Rule was created pursuant to the Commission's mandate
under Section 7704(d) of the Act and its authority under Section
7711(a) of the CAN-SPAM Act. In order to inform the recipient that an
email message contains sexually oriented materials and to facilitate
filtering of such email messages, the Final Rule requires that any
person who initiates a commercial email that contains sexually oriented
material must: (1) Exclude sexually oriented materials from the subject
heading of the email message and include the phrase ``SEXUALLY-
EXPLICIT:'' in the subject heading; and (2) include only the following
information in the initially viewable matter of the message: (i) the
phrase ``SEXUALLY-EXPLICIT:''; (ii) identifier, opt-out, and physical
address information; and (iii) instructions on how to access the
sexually oriented material.
B. Summary of Significant Issues Raised by the Public Comments in
Response to the IRFA
In the IRFA, the Commission sought comment regarding the impact of
the Proposed Rule and any alternatives the Commission should consider,
with a
[[Page 21033]]
specific focus on the effect of the Rule on small entities. The public
comments on the Proposed Rule are discussed above throughout the
Statement of Basis and Purpose, as are any changes that have been made
in the Final Rule. After reviewing the comments, the Commission does
not believe that the Final Rule will unduly burden the entities who
sell sexually oriented materials through email messages, or those
consumers who purchase such materials.\105\
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\105\ See, e.g., Bordeaux (``I am also an [Information
Technology] director* * * and I don't see anything in the present
rule that would cause significant technical issues,''); Potts
(``This would be a simple change (I work in IT and know what it
would take) that could be accomplished in less than a day.'');
Orlando at 2; Van Meter at 1. But see, Moore at 7 (outlining several
ways in which the Rule may burden sellers and purchasers of sexually
oriented materials); Oney at 2.
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C. Explanation as to Why No Estimate Is Available as to the Number of
Small Entities to Which the Final Rule Will Apply
In general, the Final Rule will apply to any person or entity who
initiates, originates, or transmits a commercial email 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 email message contains sexually oriented
material turns on a number of factors that will require factual
analysis on a case-by-case basis. In connection with the NPR and the
IRFA, the Commission has not received any comments providing an
estimate of the number of small entities to which the Final Rule will
apply.
D. Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Final Rule, Including an Estimate of the
Classes of Small Entities That Will Be Subject to the Requirements of
the Final Rule and the Type of Professional Skills That Will Be
Necessary To Implement the Final Rule
The Final Rule does not impose any reporting or any specific
record-keeping requirements within the meaning of the Paperwork
Reduction Act. While one commenter expressed concerns about the
additional costs that may be associated with implementing the
requirements of the Rule,\106\ the Commission does not believe that the
requirements of the Rule will create a significant burden on persons or
entities who initiate commercial email messages that include sexually
oriented material. The Commission has not received any comments that
necessitate modifying its previous description of projected compliance
requirements.
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\106\ Moore at 5.
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E. Discussion of Significant Alternatives Considered by the Commission
That Would Accomplish the Stated Objectives of the CAN-SPAM Act and
That Would Minimize Any Significant Economic Impact of the Final Rule
on Small Entities
Through the NPR, the Commission sought to gather information
regarding the economic impact of CAN-SPAM's requirements on all
businesses, including small entities. The Commission requested public
comment on whether the Proposed Rule would unduly burden either
entities selling lawful sexually oriented material through email
messages or those consumers who were interested in purchasing sexually
oriented material offered to them through email messages; whether this
burden is justified by offsetting benefits to consumers; what effect
the Rule will have on small entities that initiate commercial email
messages that include sexually oriented material; what costs will be
incurred by small entities to ``implement and comply'' with the Rule;
and whether there are ways the Rule could be modified to reduce the
costs or burdens for small entities while still being consistent with
the requirements of the Act.\107\ This information was requested by the
Commission in an attempt to minimize the Final Rule's burden on all
businesses, including small entities.
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\107\ 69 FR at 4265-66.
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The Commission does not believe that the Final Rule will create a
significant economic impact on persons or entities who initiate a
commercial email message that includes sexually oriented material. The
Final Rule does not prevent such entities from selling or advertising
their materials; it merely limits the confrontational manner in which
they currently advertise them. In doing so, it provides the offsetting
benefit of allowing email recipients to potentially avoid unwanted
exposure to materials that they might find offensive. In addition, the
Final Rule imposes only a minor restriction on those individuals who
are interested in purchasing sexually oriented materials--their ability
to view or purchase such materials is only a mouse click away.
The Commission has not received any comments that lead it to
believe that the Final Rule will unduly burden either the entities who
sell, or those consumers who purchase, sexually oriented material
through email messages. In any event, the Commission believes that the
minimal burden imposed upon such entities is justified by offsetting
benefits to consumers, namely, the ability of a consumer to avoid
viewing materials that they may consider objectionable or offensive.
List of Subjects in 16 CFR Part 316
Advertising, Business and industry, Computer technology, Consumer
protection, Labeling.
0
Accordingly, for the reasons set forth in the preamble, the Commission
adds a new part 316 consisting of Sec. 316.1 to title 16 of the Code
of Federal Regulations to read 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.
(a) Any person who initiates, to a protected computer, the
transmission of a commercial electronic mail message that includes
sexually oriented material must:
(1) Exclude sexually oriented materials from the subject heading
for the electronic mail message and include in the subject heading the
phrase ``SEXUALLY-EXPLICIT:'' in capital letters as the first nineteen
(19) characters at the beginning of the subject line;\1\
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\1\ The phrase ``SEXUALLY-EXPLICIT'' comprises 17 characters,
including the dash between the two words. The colon (:) and the
space following the phrase are the 18th and 19th characters.
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(2) Provide that the content of 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:'' in a clear and conspicuous
manner; \2\
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\2\ This phrase consists of nineteen (19) characters and is
identical to the phrase required in Sec. 316.1(a)(1) of this Rule.
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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
[[Page 21034]]
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) Clear and conspicuous display of 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 the CAN-SPAM
Act, 15 U.S.C. 7702(1).
(2) ``Character'' means an element of the American Standard Code
for Information Interchange (``ASCII'') character set.
(3) The definition of the term ``commercial electronic mail
message'' is the same as the definition of that term in the CAN-SPAM
Act, 15 U.S.C. 7702(2).
(4) The definition of the term ``electronic mail address'' is the
same as the definition of that term in the CAN-SPAM Act, 15 U.S.C.
7702(5).
(5) The definition of the term ``electronic mail message'' is the
same as the definition of that term in the CAN-SPAM Act, 15 U.S.C.
7702(6).
(6) The definition of the term ``initiate'' is the same as the
definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(9).
(7) The definition of the term ``Internet'' is the same as the
definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(10).
(8) The definition of the term ``procure'' is the same as the
definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(12).
(9) The definition of the term ``protected computer'' is the same
as the definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(13).
(10) The definition of the term ``recipient'' is the same as the
definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(14).
(11) The definition of the term ``routine conveyance'' is the same
as the definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(15).
(12) The definition of the term ``sender'' is the same as the
definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(16).
(13) The definition of the term ``transactional or relationship
messages'' is the same as the definition of that term in the CAN-SPAM
Act, 15 U.S.C. 7702(17).
(14) The definition of the term ``sexually oriented material'' is
the same as the definition of that term in the CAN-SPAM Act, 15 U.S.C.
7704(d)(4).
(d) Severability. The provisions of this Rule 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.
Authority: Pub. L. 108-187, 117 Stat. 2699, 15 U.S.C. 7701 et
seq.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 04-8679 Filed 4-16-04; 8:45 am]
BILLING CODE 6750-01-P