Transcript SCAMS and SPAM - Cyberspace Law and Policy Community

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