By J. D. Obenberger, Attorney at Law
© MMXII J. D. Obenberger, All Rights Reserved

Unsolicited Adult Bulk Email - Yes, It's Legal, But . . .

There are adult webmasters who have gone to federal prison as a result of their unsolicited, obscene bulk email solicitations. When they went on trial for obscenity, the Justice Department had no shortage of volunteers ready to travel to Phoenix and testify about opening these emails and the shock they encountered. You can read about it all, here, in the words of the United States Court of Appeals for the Ninth Circuit.

The adult Internet ultimately depends on the good will, toleration, and forebearance of the people of the United States. When adult operators get into trouble, they sit before juries composed of those Americans. That's how the laws are enforced in the end. To offend and shock unwilling persons by uninvited, explicit and graphic images under the cover of innocent-sounding and misleading subject lines is as stupid as urinating in a well that you and your neighbors must drink from. Those illegal spammers poison everyone's water supply, hurting themselves and everyone around them - and they create hostile jury pools.

On January 1, 2004, the CAN-SPAM Act came into force and effect, followed by final rules of the Federal Trade Commission regarding adult sexually explicit advertising, effective May 19, 2004. They should be carefully read in consultation with a lawyer before unsolicited commercial advertising email is transmitted. It is dangerous to do this at home on your own. 

No piece of legislation and no piece of regulation as complex as these matters are can be accurately and safely summarized in any online article intended for a general readership, and I make no attempt to do that here. Just to put the casual reader on notice of some general landmark features of this area, the following general summary is laid out. 

The special FTC Regulations promulgated for email containing sexually oriented material will normally apply for unsollicited advertisging email, not otherwise execpt from the act. For the purposes of CAN-SPAM ‘‘sexually oriented material’’ means 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 language at 2256 is the same definition that defines the scope of Section 2257 coverage. Be careful, there are actually two definitions in that statute, the second of which concerns only child pornograph, not the scope of Section 2257 or CAN-SPAM.)

1. Unsolicited, commercial bulk email aimed to sell sexually expicit materials can be accomplished lawfully. As for sexually explicit advertising, the special FTC Regulations provide:  

2. The header line must contain the phrase, "SEXUALLY-EXPLICIT". 

3. Neither the header nor the "initially viewable area" may contain sexually-oriented materials. 

4. The initially viewable area must also contain the same phrase, clearly identify itself as an advertisement, provide a conspicuous notice inviting the use of a protocol to avoid receiving further advertisements, provide an Internet-based mechanism for opting-out which must remain operational for thirty days after the email in question is transmitted, display a valid postal address (which may be a post office box), clear instructions on how to access the sexually explicit materials, preceeded by a statement that, in order to assure that those materials cannot be accessed, the recipient should delete the email. 

The general provisions of CAN-SPAM can be summarized as set out below. Obviously, adult operators must comply with both the rules of the FTC (all of them, not just the adult rules) and the statute itself. 

        1. Don’t use false, dishonest or misleading header information. Tell it like it is. You do the contrary, you break the law.

        2. Don’t use dishonest, deceptive subject lines. Just the facts, Ma'am. No malarky.

        3. Identify the message as advertising. If you followed the special adult rules above, you've got that covered.

        4. Tell recipients where you receive mail. Physical address. Post Office Box. Registered mail receiver under the USPS regs. If you folllowed the special adult rules, you've got that covered, too.

       5. Tell recipients how to opt-out. Again, the special adult rules require that, too. Make it simple and easy - or else it will be simple and easy for you to go to places you don't want to visit.

          6. Honor opt-out requests promptly. You must keep the mechanism operational for 30 days; you can't require any information beyond the email address. You can't charge for this. You can't require that the opt-out person do anything more than visit a website and make a choice. Once they opt-out, you can't send them any more email or sell or transfer their email addresses to anyone else, except to your email contractor to remove their names from your list. You must comply within ten days.

         7. You are responsible for what your email contractor does. You cannot contract away your liability. It's you and him together, on this one. 

 The law creates crimes, typically misdemeanors, but which can become "aggravated" into greater offenses, and can be enforced by both the FTC and by aggrieved private individuals. 

Sentences of 70 months confinement have been handed down and arrest warrants for foreign nationals outside the United States have been issued, and trials in abstentia have been conducted, with sentencing conducted under seal. The United States aggressively acts in this regard without consideration of any territorial limit on its power. 

Whether this law has achieved any measurable success and whether its provisions may be unconstitutional are outside the scope of this article.

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This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is