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					Anti Spam Team Case Studies
     International Training Program



           Bruce Matthews
      Manager, Anti Spam Team
      Converging Services Branch
               ACMA
Key points to understand
Australia’s Spam Act has number of key requirements
• Messages must be ‘commercial electronic messages’
• ONE message is sufficient – does not rely on ‘bulk’
• Australian legislation is ‘OPT IN’ legislation, not ‘OPT
  OUT’ – consent to receive the message must be ‘prior’
  to the sending of the message
• Does allows the sending by a business when existing
  business relationship
Enforcement Options under Spam Act

       1. Educational contact
       2. Formal Warning Letters
       3. Enforceable Undertakings
       4. Fines
       5. Prosecution in Federal Court
Complaints Process
  Complaint Received



                                     No Action Possible –
                                   Eg. Outside of Act Scope



                                       First / Minor Complaints



                                                                  Educational Contact



                                 Multiple / Serious Complaints



                       Formal action                    Refer to Investigations Team
1. Educational Contact
• ACMA seeks to assist legitimate companies to
  comply with the Spam Act
• If a complaint is the first lodged about the company,
  ACMA contacts the sender to:
   – Inform them of the Spam Act requirements
   – Let them know there has been a complaint
   – Give them general information to assist them to comply
     with the Act, and specific information to address
     complainant’s issue
• Over 900 companies contacted since 2004
2. Formal Warning Letters

• Similar to Educational Contact
• Often used when a company makes serious errors in
  Spam Act compliance in first use of e-marketing
• 11 Formal Warnings issued since commencement of
  Act
3. Enforceable Undertakings

• Permits company or individual to enter into
  agreement with ACMA about matters regulated by
  Spam Act
• If the company or individual then breaches the
  undertaking, they can be pursued in the Federal Court
• Used 6 times since commencement of Act
4. Fines
• ACMA has the ability to impose fines
• Can only be used when there has been a clear breach
• Often used when a new practice has emerged that is
  in breach of the Act
   – Resultant publicity sends strong message to other relevant
     businesses that may seek to use the same practice
• Fines have been issued to 5 companies/individuals
5. Prosecution in the Federal Court

• Only expected to be used for ‘professional’ spammers
• Very long and resource intensive process
• ACMA has only initiated one case in the Federal
  Court to date, against Mr Wayne Mansfield and his
  company, Clarity1 (trading as Business Seminars
  Australia).
 Business Seminars Australia / Wayne Mansfield
• BSA / Mansfield were at the time listed on Global spam
  watchdog Spamhaus.org as a top 200 known spam
  operation
• Prior to commencement of the enforcement provisions
  of the Act in April 2004, ACMA wrote to over 200
  businesses to ensure they were aware of the
  requirements of the Act
• BSA / Mansfield received one of those advisory letters
• BSA / Mansfield responded stating that they complied
  with the Act
Business Seminars Australia / Wayne Mansfield

• Formal complaints and reports of spam from
  Business Seminars Australia and co trading company
  Maverick Partnership were lodged both before and
  after the commencement of the Act
• An investigation was commenced
• Examination of emails identified that they were
  clearly ‘commercial electronic messages as defined
  under the Act as they were advertising either business
  seminars or products sold by the company
The Investigation – in general
The investigation was resource and time consuming:
• Witnesses were spread throughout Australia
• Mansfield had previously taken court action against
  an Anti Spammer –which Mansfield lost – but
  witnesses were reluctant to give evidence against him
• Complainant’s would often only forward one
  complaint of hundred’s that they received because
  ACMA did not have a user friendly reporting method
   – Now SpamMATTERS available for multiple reports
The Investigation – continued

• Being new legislation, it was important to ensure that
  the strongest possible case was presented
• This meant that on a number of occasions witnesses
  made three and four statements to update further
  UCEM that they received
• Mansfield was the Sole Director of Clarity1, the
  parent company of Business Seminars Australia and
  Maverick Partnership
The UCEM sent by Mansfield

Common traits of messages sent by Mansfield included
• The use of a different yahoo.com or yahoo.com.au for
  each email campaign
• Different subject lines for each email
• Often unsubscribe addresses that directed back to
  servers overseas - often in China
The UCEM sent by Mansfield
• IP addresses not consistent with the alleged senders –
  Mansfield claims ‘rotating IP addresses’
   – ACMA believes compromised machines were used
• Whilst the content of the email clearly identified the
  sender, that was only apparent when the email was
  opened
• The use of different yahoo addresses prevented the
  recipients blocking particular email address
• The yahoo addresses were all registered by Mansfield
  but under vague details
The Investigation – BSA

• Formal notices under s.522 of Telecommunications
  Act 1997 were issued for BSA / WM to attend and
  produce documents in October 2004

Why section 522 Notices and not Search Warrants?

• Tactical decision made between investigators and
  legal. Neither way was right or wrong. Search
  Warrant had no power to require the answering of
  questions, wherein section 522 Notices did
Standard of Proof

• As the penalties were ‘civil’ penalties, the required
  standard of proof was ‘on the balance of
  probabilities’

• Investigators from commencement of investigation
  aimed for the higher criminal standard of ‘beyond
  reasonable doubt’ as far as possible
The section 522 process
• Service of notices were on both the company and the
  individual to maintain control of the process
• Notices had extensive requirement to produce
  documents including financial records
• Mansfield was totally co-operative during the
  interview, conducted in presence of his solicitor
• AMCA also had Legal Representative present
• Interview conducted on triple deck simultaneous
  recorder to ensure accuracy and expediency
• Respondent given copy of tapes after interview
Referral to Australian Government
Solicitor (AGS)
• Brief of evidence reviewed by In-house legal team
  and then referred to AGS in Perth
• Complaints still continued to come in even after the
  formal section 522 interview
• AGS, in-house legal and investigators decided
  because the breaches were ongoing to obtain search
  warrants under the Telecommunications Act
• Services of an external forensic investigation
  company was obtained to conduct the imaging of the
  computers and forensic analysis
Execution of Search Warrant
• Search warrant conducted in April 2005 on business
  premises of Clarity1 and Mansfield’s home address
• Mansfield present during search at business premises
• Approximately 300 gb of data was imaged by the
  forensic specialists from about 13 computers
• Forensic investigators also accessed computer servers
  run by Mansfield overseas under the powers of a
  Section 547J Telecommunications Act Access Order
  and took a snapshot of the contents of the sites
Prosecution of case - timelines
• July 2005 - Federal Court in Perth granted interim
  injunction
• August 2005 – Court granted interlocutory injunction
• December 2005 – matter listed for two day hearing
• Respondent requested adjournment at last moment as
  he wanted to cross examine all ACMA witnesses and
  produce witnesses of his own. He also advised the
  court that his partner in the business was recovering
  from surgery and would not have sufficient time
Prosecution of case - timelines

• Court allowed adjournment till February 2006
• Mansfield to lodge his witness affidavits by end of
  December
• Mansfield lodged nine affidavits with 8 basically
  advising that whilst they did not give permission
  originally, they have attended his seminars or made a
  purchase of his products
Court Case

• Mansfield represented himself and Clarity1
• Australian Govt. Solicitor represented ACMA
• All ACMA witnesses gave evidence and were subject
  to cross examination
• Evidence given from witness box, by Video link for
  most interstate witnesses, and one country Victoria
  witness by telephone conference
Court Case - continued

Defence relied on
• ‘inferred consent’ particularly as witnesses had ‘conspicuously
  displayed’ their email addresses on the web
• Mansfield had obtained their address prior to commencement
  of Act and had sent the recipients email telling them that if
  they did not wish to receive his mail to unsubscribe
• Mansfield lodged 8 of 9 affidavits into evidence and not
  objected to as they confirmed ACMA’s view of the law
Court Case - continued
• ACMA wished to examine one defence witness, previously
  Clarity1 System Administrator whom WM lodged an affidavit
  for. As WM was unable/declined to produce the witness the
  evidence in the affidavit was not admitted
• At conclusion of hearing Judge directed that written final
  submissions were to be lodged by both parties
• Note – The judge did indicate to Mansfield that normally he
  required final submissions at the conclusion of the evidence
  but as he represented himself, he decided on written
  submissions to give the respondent Mansfield time to prepare
  his submission
Determination of Court
On 13 April 2006, the Federal Court handed down the
  decision
Key Points
• Both C1 and WM were in breach of both s.16
  (sending UCEM) and s.21(use of harvested address
  lists)
• The judge found that in the respondent’s submissions
  there were a lot of assertions not based on any
  evidence by the respondent
Determination of Court - continued

• The legislation is OPT IN and respondent could not
  require a person to opt out

• The respondent sought to show consent by inference,
  but no evidence to support such inference
Awaiting Penalty decision
• The applicant and respondent have lodged their
  submissions on penalty (June 2006)
• There is a clear gap between what both parties believe
  is an appropriate penalty
• For a first offence for a business entity, the possible
  penalty can be up to $220,000 per day
• The Federal Court (as of 12 September 2006) is still
  to hand down their decision on penalty
Further information


ACMA webpage on spam
www.spam.acma.gov.au

				
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