Explicit spam is defying definition

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A new federal requirement that unsolicited e-mail with sexually oriented material be labeled and shield potentially offensive content must pass a series of constitutional tests, some lawyers said.

“It’s really singling out different types of messages for different treatment,” Thomas Julin, a partner in the Miami office of the Hunton Williams law firm said yesterday. “Any kind of labeling requirement is susceptible to a challenge of restriction of speech.”

The Federal Trade Commission said it worked hard to ensure the rules — which go into effect in May — stand up to a constitutional objection, and there is nothing in the rules that prohibits sexual content in e-mail.

The new rules governing sexually explicit material apply only to unsolicited commercial e-mail, known as spam. The FTC crafted the rules to clarify the Can-Spam act, the nation’s first such law, that went into effect Jan. 1. Under the rules, all spam containing sexually explicit content must have the words “sexually explicit” in the subject line, and must not have sexual content in the immediate viewing area of the message.

Lawmakers crafted the provision because of numerous complaints regarding pornographic spam, which accounts for millions of unwanted e-mail messages daily.

The Center for Democracy and Technology (CDT), a Washington-based privacy advocacy group, said a labeling requirement could amount to “forced speech,” which has been ruled unconstitutional in some instances. Under the law, companies can be compelled to declare what their product is, but cannot be forced to make a subjective statement about their product. Opinions differ on whether the words “sexually explicit” could be considered a basic description or a subjective judgment.

The FTC said it based its decision to require the words “sexually explicit” in the subject line of messages on a definition outlined in the Sexual Exploitation and Other Abuse of Children statute.

The definition provides a clear explanation of what is sexually explicit, the FTC said.

“The First Amendment was something we considered,” said Jonathan Kraden, a staff attorney with the FTC’s Bureau of Consumer Protection. “We feel that based on an analysis of the applicable case law, it’s an acceptable [regulation] of speech. We do feel this will pass constitutional muster.”

The FTC explained the new rules in a 44-page report, nearly half of which was spent addressing constitutional concerns. The commission’s main defense, Mr. Kraden said, is that the rules do not actually prohibit messages from containing sexual content.

But some legal experts said that speech could be hindered even if it is not banned outright. The label requirement was designed to help spam filters to block sexually oriented e-mail. This could take away the consumer’s right to decide whether they would want to receive such messages.

“A fundamental flaw in the labeling approach taken by the statute is that it is designed to promote filtering by the [Internet service providers] and takes control away from the end user,” the CDT said in its report in February. “The commission should consider whether the labeling provisions of the Can-Spam act could be implemented in such a way as to provide the user with information about the nature of the content of the e-mail without allowing ISPs to make that choice.”

The FTC has also required all sexually explicit content to be hidden in the spam message so that it is not visible when initially opened.

Some lawyers contend this is a restriction on the message’s content. Others said the FTC has worked around the issue by simply requiring the sexual content to be placed low in the message so that users must scroll down to see it.

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