FTC orders porn spammers to use sexual-content warning

Senders of pornographic spam will soon be required to warn e-mail users of potentially offensive material by placing a special label in the subject line of their messages.

The Federal Trade Commission said yesterday that all sexually explicit spam must include a warning reading “SEXUALLY—EXPLICIT: ” so that recipients will be less likely to open the message without being aware of its content. The label should also help e-mail filters more easily block pornographic messages.

Spammers will also be required to put the message content in a special “brown paper wrapper” that shields the content behind a special mark or notice.

Spammers will be required to comply beginning May 19.

“It’s a notification requirement,” said Jonathan Kraden, a staff attorney with the FTC’s Bureau of Consumer Protection. “If you’re going to send this e-mail, tell people what they should expect to receive.”

The enacting of a labeling requirement is one of several steps the FTC has been asked to take in order to strengthen the Can-Spam Act, the nation’s first federal antispam law that went into effect on Jan. 1.

Lawmakers had requested a labeling requirement because the volume of pornographic e-mail sent to unwitting computer users was on the rise. According to Brightmail, a San Francisco-based e-mail filtering company, about 63 percent of all e-mail is spam, and as much as a third of that is adult oriented.

But many spam experts argue that placing a label on sexually explicit spam will do very little to curb the flow of spam, because the worst spammers are unlikely to use it.

There is no incentive to use the label, they said, because most people will choose to automatically block any message containing it.

“It will be incredibly easy to filter out, but it won’t make a difference because nobody’s going to use the tag,” said Stephen Swaney, chief executive officer of Fortress Systems, a spam filtering company based in the District. “It’s window dressing. It will have no impact on the volume of spam.”

Legal experts said the labeling requirement could place an undue burden on people who send sexually oriented material that may not be considered spam. Medical material related to sexual health, for instance might be subject to the FTC’s rules.

“The impact can be rather widespread … there are going to be questions about what type of materials can come under the requirement,” said John Dozier, an Internet attorney in Glen Allen, Va. “I can easily see the phrase [sexually explicit] being carried in a context that is misleading.”

But Mr. Kraden said only the most obvious examples of pornographic material will be subject to the label, and only unsolicited e-mail whose primary purpose is to advertise would apply. Whether a message is sexually explicit or not is determined by specific guidelines outlined in the nation’s Child Exploitation Statutes.

A more relevant question, Mr. Kraden said, is how to determine whether a message’s “primary purpose” is to advertise.

The FTC has until the end of the year to make a decision on that aspect of the Can-Spam Act, and is accepting public comments until April 20.

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