The FTC yesterday issued its proposed rule on email that contains "sexually oriented material."  The complexity of the scheme is mind-boggling, and I'm not sure how an emailer would know that his/her/its message is subject to the rule.

Stay with me here.  As USA TODAY reports,

Unsolicited pornography will have to bear a label reading "SEXUALLY-EXPLICIT-CONTENT:" in the subject line and the messages themselves will not be allowed to contain graphic material, the FTC said.

Sexually oriented material is defined by the CAN SPAM Act to be "any material that depicts sexually explicit conduct (as that term is defined in section 2256 of title 18, United States Code), unless the depiction constitutes a small and insignificant part of the whole, the remainder of which is not primarily devoted to sexual matters." 

The Title 18 definition includes "simulation" of various acts.  In a footnote, the FTC says that "[a]lthough the definition of "sexually oriented material" refers to "sexually explicit conduct," the Commission proposes substituting the word "content" for the word "conduct" in the Proposed Mark because the substance of an e-mail message is more accurately defined by use of the word "content."

So a message that "contains" a description of sexually explicit conduct is covered by the Rule, unless this description is a small part of the message, and has to bear the Proposed Mark.  What about messages that advertise related products or movies?  They don't "depict sexually explicit conduct," so don't have to be labeled, it seems.  What about messages that describe simulated sexually explicit conduct?  Do they need to be labeled?

More confusingly, isn't all of this a form of forced speech?  The labeled messages, once you decide to open them, can't contain any "sexually oriented material."  Instead, they can only include the phrase "SEXUALLY-EXPLICIT CONTENT" in some large font, plus opt out information and a mechanism for accessing the sexually oriented material.  Very boring messages.  Can this scheme possibly be constitutional?  And why would a message that only contains a link to the material be subject to the Rule in the first place?

What's additionally bothersome about all this is that the unsolicited commercial email camp made sure that it would never be subject to a labeling rule.  The CAN-SPAM Act says that

(a) IN GENERAL.—The Commission may issue regulations to implement the provisions of this Act . . .

(b) LIMITATION.—Subsection (a) may not be construed to authorize the Commission to establish a requirement pursuant to section 5(a) to include any specific words, characters, marks, or labels in a commercial electronic mail message, or to include the identification required by section 5(a)(5)(A) in any particular part of such a mail message (such as the subject line or body).

So that portion of the industry can't effectively be filtered out, even though it is probably much easier for a sender to know when it's sending an unsolicited commercial email than it is to know that it's sending "sexually oriented material."  Not that any labeling requirement makes legal sense, of course.

The USA TODAY story ends with a startlingly candid discussion with an FTC spokesperson:

Hile said the agency is especially interested to hear whether the measure will encounter any technical hurdles. Free-speech arguments will carry less weight as the agency has been directed by Congress to develop the labels, he said.

"We don't have a whole lot of discretion in this," Hile said. "I guess we can't prevent commenters from saying, 'What a stupid idea,' or 'It violates the Constitution' or whatever, but we can't do anything with that."

Or whatever.