"SCAMS and SPAM"
SCAMS and SPAM John Corker Senior Associate Oz NetLaw National Internet legal practice of the Communications Law Centre. Website at oznetlaw.net started March 2001. Legal information and response to email requests for advice. 6000 visitors a month 50% queries from regional Australia. Scams Nigerian Diplomats E-Bay hijacking Outing of cyber-stalkers Abuse of open relays SPAM Definitional issues (UCE/UBE) Who is affected – Destination Operators – Relay Operators – Forgery Victims – ISPs – End-Users Australian Approach NOIE Interim report published 1 August 2002 Final report expected in November Legal options – Outright prohibition on UBE – Requirement for greater transparency in nature and origin of UBE – Creation of new offence of using carriage service to commit a Commonwealth Offence Existing Australian Laws Content based leguslation Privacy Legislation Criminal Legislation Consumer Protection Commercial terms in ISP/subscriber contracts Other Australian Laws Trespass to chattels and conversion Trade Mark Infringement and passing off Nuisance Not addressed: – Lack of consent of recipient – Option to opt-out US Approach 26 US States have specific laws No Federal Laws but currently 8 Bills. Main issues addressed – False headers, routing information or subject lines – Labelling of ADULT and ADVERTISING material – Use of email addresses harvested from the web US Approach (cont) – Senders details and opt-out option. – ISPs mandatory notification of policies to clients – Prohibits cell phone spam European Laws E-Privacy Directive July 2002 – Applies to automatic calling machines used for direct marketing – Prior consent of recipient required – Opt out on the occasion of each message for clients. – Concealing identity of sender prohibited Existing member country laws Issues Lack of prior consent and need for opt-out Lack of disclosure of identity of sender Use of false information Lack of disclosure of content of message Unauthorised use of carriage service Harvesting email addresses Need for consistency across all personal electronic messaging systems Options Spam is a rogue commercial phenomenon Consumer Protection laws main focus Criminal laws to be used sparingly Opt-out/Opt-in key issue for Australia Licensing Scheme Pros – Provides options of real enforcement – Establishes a co-ordinator – One stop complaint centre – Code can apply to all providers not just industry association members Licensing Scheme Cons – Cost to industry – Possibility of driving industry offshore Conclusion Legislative solution must address all affected Issues largely consumer protection issues Licensing scheme worth considering Based on AC Neilsen research for NOIE, would expect comprehensive US and Australian federal laws to have a significant impact. Law provides a framework, rules and boundaries