SCAMS and SPAM

1
SCAMS and SPAM

• John Corker
• Senior Associate

2
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.

3
Scams

• Nigerian Diplomats
• E-Bay hijacking
• Outing of cyber-stalkers
• Abuse of open relays

4
SPAM

• Definitional issues (UCE/UBE)
• Who is affected
• Destination Operators
• Relay Operators
• Forgery Victims
• ISPs
• End-Users

5
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

6
Existing Australian Laws

• Content based leguslation
• Privacy Legislation
• Criminal Legislation
• Consumer Protection
• Commercial terms in ISP/subscriber contracts

7
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

8
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

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US Approach (cont)

• Senders details and opt-out option.
• ISPs mandatory notification of policies to
  clients
• Prohibits cell phone spam

10
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

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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

12
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

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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

14
Licensing Scheme

• Cons
• Cost to industry
• Possibility of driving industry offshore

15
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