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Spam Foes Worry New FTC Rule Not Enough

Spam Foes Worry New FTC Rule Not Enough
May 21, 2004

Spam foes say the FTC's new crack down on pornographic spam is a step in the right direction, but they worry that the new law will be largely ignored.

This past Wednesday, the Federal Trade Commission passed a rule calling for all pornographic spam to carry a warning label. Now all adult-oriented spam must include the label ''Sexually Explicit'' in the subject line, as well as in the body of the email.

Now the question is whether or not pornographers and spammers will pay attention to the law.

''Many spammers are already operating outside of the law,'' says Francois Lavaste, a vice president at Brightmail, an anti-spam company based in San Francisco. ''They don't care about legislation and they won't comply with it. We don't expect spammers to comply with this until it's really being enforced.''

The new rule was required by the Can-Spam Act, which Congress passed in 2003. The Act directs the FTC to adopt a law requiring a notice to be included in sexually oriented spam. The notice must be in the subject line, as well as in the electronic equivalent of a 'brown paper wrapper' in the message body of the email. The 'brown paper wrapper' should bear the warning, along with an opt-out, and a valid sender's address.

Jonathan Kraden, staff attorney with the FTC's Bureau of Consumer Protection, explains that the 'wrapper' also will hide any sexually explicit images or information. ''The recipient will need to take an affirmative step to view these materials,'' he says.

The new rule, however, does not prohibit spammers from placing sexually explicit wording in the subject line. It just needs to be proceeded by the warning label.

''It's not telling people that they can't send this type of email,'' says Kraden. ''It's letting readers know that this is sexually explicit. If people want to see it, that's fine. They can. If they don't want to see it, they can filter it out or just delete it.''

And if spammers don't adhere to the new rule, Kraden says the government is fully prepared to go after them.

''At the FTC, we've brought more than 55 spam-related case, and I expect that will continue,'' he says. ''As we bring more of these cases, we get better and better at doing it. I don't speak geek but I'm getting closer.''

Ray Everett-Church, chief privacy officer of Paoli, Pa.-based ePrivacy Group LLC, a privacy and anti-spam consultancy, says the new rule is a good idea but he's not convinced that it will be very effective.

''I think that the instinct there is good in that they're trying to protect people from being offended by unwanted email or inadvertent exposure to sensitive email,'' says Everett-Church, who also is a founder of CAUCE, a group focused on finding legislative solutions to spam. ''Whatever moral issues you may have with pornographers, there are many who are committed to following the law in order to make sure that they stay out of the cross-hairs of law enforcement. If the FTC requires pornographers to dance on one leg and wear a tin foil hat, many would do it.''

But not all of them.

''But the reality is that many of the pornographic spams are sent by folks already engaged in deceptive or illegal practices,'' adds Everett-Church. ''They try to trick people... Some folks will ignore any requirements simply because they're criminals and don't adhere to the law.''

However, both Everett-Church and Lavaste says this is a good way for legitimate mass emailers to differentiate themselves from the illegitimate segment.

''This adds to the body of things that differentiates good actors from bad,'' says Everett-Church. ''But in terms of making a tremendous impact on the spam problem, I remain tremendously skeptical unfortunately.''

Lavaste also poses the question of how this new rule can affect spammers who are operating from outside of the United States.

''By itself, will this reduce spam? Will it have a good impact?'' asks Lavaste. ''Probably not.''

This article was first published on

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