The CAN-SPAM Act, passed in 2003, outlaws fraudulent e-mail and requires marketers to include an unsubscribe option; but it continues to allow legitimate, albeit unsolicited, commercial e-mail.
The Act also directed the Federal Trade Commission to adopt a rule requiring a mark or notice to be included in spam that contains sexually oriented material. The purpose of the notice is to inform recipients that a spam message contains sexually oriented material and to make it easier to filter out messages they do not wish to receive.
Establishing the mark was one of several actions Congress directed the Commission to undertake by enacting the CAN-SPAM Act. The CAN-SPAM Act required the Commission to prescribe the mark or notice within 120 days after passage of the Act.
Finalised after a period of public consultation, the FTC's rule requires the phrase "SEXUALLY-EXPLICIT: " to be included both in the subject line of any e-mail message that contains sexually oriented material, and in the electronic equivalent of a "brown paper wrapper" in the body of the message.
This "brown paper wrapper" is what a recipient initially will see when opening a message containing sexually oriented material. The wrapper will include the prescribed mark or notice, certain other specified information, and no other information or images.
The rule excludes sexually oriented materials from the subject line of a sexually explicit e-mail message. It also requires the mandatory disclosure of the sender's "valid physical postal address" to be "clear and conspicuous," like the other required disclosures. Finally, it requires that the mark appear using elements of the American Standard Code for Information Interchange ("ASCII") character set.
The requirement covers both visual images in e-mails and written descriptions of sexually explicit conduct.