FTC Searches for a More Explicit E-Mail Warning

Maybe the best symbol would be a defrocked Janet Jackson. Or the scarlet letter "A."

The Federal Trade Commission proposed nothing so racy when it turned recently to the task of coming up with a special "mark" that will let consumers know that a pornographic image has hit their e-mail inbox.

What the FTC did decide on -- after the lawyers, consumer behavior experts, computer people and Justice Department weighed in -- was something simple and direct, "SEXUALLY-EXPLICIT-CONTENT: ". This alert would have to be displayed in capital letters as the first 27 characters (including the space after the colon) in the subject line of any commercial e-mail message from spammers, which some experts in the area call the "barnyard XXX sites."

There are 18 states with laws aimed at keeping out such material and many of those use the words "adult" and "advertisement." The commission felt it was necessary to use the word "sexual" because "adult" and "advertisement" might only signal a message about gambling or alcohol -- vices not covered by the proposal.

The label proposal is the first of seven rules that the FTC is working on under the authority it received from the Can-Spam Act, which passed in December. Its charge is to issue a rule with a "mark" that will universally alert consumers that they have just received, as Congress put it, "material that many recipients may consider vulgar or pornographic in nature."

When this initiative is finished, the agency will turn to doing a study that really worries businesses that use e-mail to market their products, a do-not-spam registry that would be similar to the one that now exists for telemarketing calls.

The "sexually explicit" label proposal also opens the debate on whether the new rules will make a dent in the amount of spam, or unsolicited messages, that are sent anonymously and fraudulently. According to Brightmail, an anti-spam software maker, 60 percent of all e-mail now is spam.

An FTC study found that 17 percent of pornographic offers contain sexually explicit images and 40 percent of those sampled by agency staff had fake information in the "from" or "subject" lines that could mislead recipients about the nature of the content.

"Before you can do anything about it, sexually explicit images appear," said J. Howard Beales, director of the FTC's Bureau of Consumer Protection. "What labeling is supposed to do is avoid that. You can delete without looking."

The proposal also contains other safeguards, like an electronic brown wrapper which allows viewing only after several other affirmative clicks are taken by the recipient to get to the image.

The law directs the agency to have the rule completed by mid-March. The comment period closed last week, with electronic filings going to adultlabel@ftc.gov.

But the issue is by no means settled. The proposal asked for "significant alternatives" -- in other words, can anyone think of better wording? The FTC also wants to know if there are technical reasons why the label wouldn't work. And it asks whether such labeling will "burden" the legitimate trade in pornographic images that are sold through e-mail and willingly bought by consumers.

The proposal does not interfere with material that consumers want. In those cases, Beales said, "Porno sites are one of the few things promoted through spam where you get what you paid for."

An FTC official said the agency has not heard from the "legitimate adult industry." Calls to Playboy Enterprises Inc. for comment on the proposal were not returned.

When the commission started thinking about a label, it had to come up with a combination of words that would block the images the law specifies, but not keep out legitimate e-mail that may use words like "sexually explicit" in the message line. Anti-porn groups might use that combination of words, for example. That led to the 27-character phrase.

Groups who were involved in the legislative debate over the anti-spam law have reservations about some parts of it. Most are convinced spammers will ignore any labeling requirements, despite stiff penalties. Violators can be punished by up to five years in prison for criminal fraud convictions, while Internet service providers will be able to collect up to $1 million in damages and states have authority to recover up to $2 million.

"It's not going to work. Generally speaking, label requirements on e-mail don't work," said Ari Schwartz, associate director of the Center for Democracy and Technology. "The FTC needs to be spending more time on enforcement; instead they are forced to focus on writing rules for pieces of the law that won't be effective." His group also doesn't think the labeling provision will pass constitutional muster.

The Coalition Against Unsolicited Commercial Email, a citizens' anti-spam group, said the law, and the rules that go with it, allow spamming as long as some disclosure occurs. The group wants a direct "don't spam" law that allows spam only where consumers "opt in," or agree to receive it.

The Direct Marketing Association, which represents businesses that use e-mail to market products, is more optimistic. Spokesman Louis Mastria said labeling is only one part of the war on spam that needs to be supported with more law enforcement, voluntary efforts by the industry and technology to filter fraudulent e-mails.

All sides agree the agency will need more resources. The FTC has taken enforcement action in 57 spam cases since 1997 and many of those took exhaustive investigative work and multiple subpoenas to even come close to the spammer.

In the end, experts said, those who think they should get an alert if a spam shot of the Janet Jackson stunt comes their way may have a long wait. They said that's because one bare breast most likely wouldn't meet the definition Congress has in mind.