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Section 5(d) of the CAN-SPAM Act of 2003 makes it a crime to send to a “protected computer” (which as defined in section 3 of the statute effectively means any computer) a commercial e-mail “that includes sexually oriented material,” unless (1) “the recipient has given prior affirmative consent to receipt of the message,” or (2) the e-mail includes in its subject heading “the marks or notices prescribed by the [Federal Trade] Commission,” or (3) “the matter in the message that is initially viewable to the recipient includes only” —
- (i) to the extent required or authorized pursuant to paragraph (2), any such marks or notices;
- (ii) the information required to be included in the message pursuant to subsection (a)(5); and
- (iii) instructions on how to access, or a mechanism to access, the sexually oriented material.
Item (i) apparently should refer to paragraph (3) rather than paragraph (2). If read to refer to paragraph (3), then it would mean that the FTC-prescribed marks and notices may be in the body of the e-mail instead of in the subject heading. They may be in the body of the e-mail, however, only if the sender complies with items (ii) and (iii). Item (ii) refers to subsection (a)(5), which requires all spam to provide:
- (i) clear and conspicuous identification that the message is an advertisement or solicitation;
- (ii) clear and conspicuous notice of the opportunity under paragraph (3) to decline to receive further commercial electronic mail messages from the sender; and
- (iii) a valid physical postal address of the sender.
The Federal Trade Commission issued a final rule, effective May 19, 2004, requiring that sexually oriented spam “exclude sexually oriented material from the subject heading . . . 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.” The rule also requires —
- 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;
- (ii) clear and conspicuous identification that the message is an advertisement or a 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 recipient may use to submit . . . a reply . . . requesting not to receive future commercial electronic mail messages from the sender . . . .”