Interpretation of Rules and Guides for
Secretary, Federal Trade Commission
Thank you for the opportunity to comment on your proposed policy statement regarding the applicability of your rules and guidelines to newer forms of electronic media. The Internet Mail Consortium is a non-profit trade association whose members cover the entire range of the Internet mail industry. Below are a few brief comments on the proposal; they are numbered based on the Request For Comments at the end of the notice in the Federal Register.
The definitions of the terms "Internet", "Web", and "e-mail" that appear in the notice have serious problems. Without correct definitions, the FTC will not be able to extend its rules and guidelines to new media in ways that will be understood by Internet users.
In the second sentence of "I. Introduction", e-mail is considered separately from the Internet. This is absolutely wrong, since the vast majority of e-mail is delivered over the Internet. Footnote number 1 is similarly wrong in not listing e-mail as part of the Internet.
Another significant error in definition appears in "I. A. 1. Technological Advances", where the Web is defined as the "graphical segment of the Internet". All common e-mail software handles the same kinds of graphical content as common Web software; in fact, many Internet users use the same software to access their e-mail as they do the Web. It is wrong to portray the Web as graphical and e-mail as non-graphical, and all FTC actions that deal with graphical display of information should apply equally to the Web and to email.
The more common way to define "Internet", "Web", and "e-mail" is as follows. The Internet is a means for transmitting electronic content. Content can be transmitted using different technical protocols and software. The two most common protocols used on the Internet are e-mail and the Web. The basic difference between e-mail and the Web is that e-mail is delivered to the electronic mailboxes of users, while Web content is actively fetched by users. In other words, email comes to a user, but the user goes out on the Web to browse for content.
7. Interpretation of "direct mail"
In the second paragraph of "II. B. 2 The Term 'Direct Mail'", the FTC says
that electronic direct mail is "individually addressed", which is often not
true. Further, the first sentence of the third paragraph of this section is also
incorrect, because it is easy to create mailing lists so that a sender can send to a
single address (that of the mailing list) that will then be retransmitted to numerous
individuals. Saying that direct mail is that which is "individually addressed"
leaves a significant loophole for senders, because they can send mail to mailing lists to
avoid individually addressing each message. This is clearly not what the FTC intends.
9. Bulletin boards and USENET news
The notice in the Federal Register is correct in not including bulletin board systems and USENET news in the interpretation of direct mail. Both of these media are much more akin to magazine content and magazine advertising than they are to bulk postal mail. Note, however, that many bulletin board systems also provide personal electronic mail, and mail sent to that portion of the service should be considered the same as other e-mail.
10. Targeted Web content
A Web user goes out an looks for content on the Web. Thus, targeted content, whether it is on Web pages or in the advertising that is presented with non-targeted content, is more similar to advertising in specialized magazines than it is to direct postal mail.
15. Format of disclosure
Again, the FTC should not limit its consideration of formatted or graphical content to the Web. Every day, Internet mail users receive tens of millions of mail messages that contain formatted and/or graphical content that would be regulated by the FTC if they were on paper. These e-mail messages contain active content, such as links to Web sites and buttons that can be pressed, just like on Web pages.
Paul Hoffman, Director