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Spam: Is it time to legislate?

Written by: Rahul Donde - Government Law College, Mumbai
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"Spamming is truly the scourge of the Information Age. This problem has become so widespread that it has begun to burden our information infrastructure. Entire new networks have to be constructed to deal with it, when resources would be far better spent on educational or commercial needs." - United States Senator Conrad Burns

Unsolicited Electronic Mail also called "spam" is a growing concern among corporations and individuals. Spamming, once viewed as a mere nuisance, is now posing some alarming problems. In the year 2002 alone, losses to US Corporations due to spamming were a staggering $8.9 billion. In 2003, spam costs to all Non-corporation Internet users were an estimated $255 million . With the increasing number of Internet users in India, the absence of any legislation prohibiting spamming and the dearth of other spam-control measures, it is time the Government took note of this menace.

What exactly is Spam?

Spam may be defined as Unsolicited Bulk E-Mail (UBE) or Unsolicited Commercial E-Mail (UCE). In either case, it is important to note that Spam is "Unsolicited" which means that there is no prior relationship between the parties concerned and the recipient has not explicitly consented to receive the communication.

Why is Spam harmful?

1. Content
Many of the objections to spam relate to its content. Objections to commercial messages, which promote dubious ventures and messages that contain sexually explicit material, are commonplace. However, the single most important objection is as far as messages containing contain harmful embedded code and hostile file attachments.

2. Consumption of Internet Resources
Spam represents a significant proportion of all e-mail traffic, consuming massive amounts of network bandwidth, memory, storage space, and other resources. Internet users and system administrators spend a great deal of time reading, deleting, filtering, and blocking spam, as a result of which they pay more for Internet access.

3. Threat to Internet Security
Spammers frequently tap into Simple Mail Transfer Protocol (SMTP) Servers and direct them to send copies of a message to a long list of recipients. Third-party relaying usually represents theft of service because it is an unauthorized appropriation of computing resources. A company’s reputation may be damaged if it is associated with spam because of third party relaying.

What are the methods of dealing with Spam?

I. Technical Methods
The first line of defense against spam normally consists of self-help and other technical mechanisms. These mechanisms can be implemented by individual Internet users, ISPs and other destination operators, as well as by various third parties, some of which specialize in battling spam.

A. Filtering and Blocking

i. End User Filtering and Collaborative Filtering
End User filtering entails the recipient simply ignoring unwanted messages while collaborative filtering consists of filtering done by Internet Service Providers (ISP) and proxy filtering services like Brightmail.

ii. Blocking
Blocking involves enabling destination operators to refuse delivery of spam. Many databases sometimes referred to as blacklists or "blackhole lists," list Internet hosts frequented by spammers. Destination operators can use these databases to identify and refuse delivery of selected incoming messages.

B. Hiding from Spammers

This process involves concealing e-mail addresses by the recipients thus making harder for the spammers.

C. Opting Out
This procedure involves requesting the spammer to remove the recipient from the mailing list. Of all the measures stated above this is the most ineffective as spammers almost never remove a mail address from their mailing lists.

Problems with Technical Approach:

The Technical Approach has several fallacies especially in India:

* Technical approaches are unlikely ever to eradicate spam, partly because of the time and resources that spammers devote to their activities (and the economies of scale from which they benefit) and partly because of the inherent openness of the Internet and e-mail protocols.

* Technical approaches have deleterious effects that they can have on legitimate communications. Blocking e-mail traffic from a spam-friendly site often means blocking a great deal of legitimate email, for example.

* Mordern Anti-spam technology is expensive and it further burdens the netizen

* There is lack of transparency and accountability consequently spammers continue to act with impunity

II. Legal Methods

In the absence of adequate technological protection, stringent legislation is essential to deal with the problem of spam. Several spam-related Bills have been introduced in the United States Congress , of which only CAN-SPAM Act of 2003 has come into force.
The European Union and other countries have also enacted anti-spam legislation. Australia which contributes to about 16% of the total spam in the world has the most stringent spam laws under which spammers may be fined up to $1.1 million a day. Although anti-spam legislations are found all over the world, the methods of combating spam are virtually similar as is evident from the following:
1) Prohibition:
The state of Delaware in the United States has stringent anti-spam legislation , which imposes a virtual ban on Unsolicited Bulk Commercial E-mail messages The European Union does not prohibit unsolicited commercial email, but permits individual member states to do so. Finland , Germany , and Italy all have laws prohibiting UCE, while Austria prohibits both UCE and UBE.

2) Enforcement of Anti-Spam policies:
ISPs and other destination operators generally have policies that govern the use of their facilities for various purposes, and nearly all of them prohibit spamming in particular. Consequently in some legislations emphasis is laid on following these policies.

3) Opt-out clause
Several Legislations including the US CAN -SPAM Act provide for an Opt-out procedure wherein senders may communicate with anyone except those who have explicitly opted out.

4) Other Statutory Provisions
Data protection laws in some States regulate the collection, use, and transfer of personal information that may include e-mail addresses, and legislation has been proposed in the United States Congress to restrict the ability of spammers to harvest e-mail addresses from domain name registration records.

5) Enforcement Mechanisms
Several jurisdictions provide for criminal penalties or other governmental enforcement mechanisms in addition to or in place of private actions.

The large number of Anti-spam legislations passed and the severe punishments meted out to spammers are indicative of the fact that the International Community has recognized the spam menace and is taking steps to combat it effectively. It is time that India too joined the bandwagon.

India And The Spam Menace:

Spam legislation is non-existent in India. The much-touted Information Technology Act of 2000 does not discuss the issue of spamming at all. It only refers to punishment meted out to a person, who after having secured access to any electronic material without the consent of the person concerned, discloses such electronic material to any other person. It does not have any bearing on violation of individual's privacy in Cyberspace. The illegality of spamming is not considered.

Other cogent reasons for introducing comprehensive legislation to curb, control and penalize spammers are:
• The Delhi High Court acknowledged the absence of appropriate legislation concerning spam in a recent case wherein Tata Sons Ltd and its subsidiary Panatone Finwest Ltd filed a suit against McCoy Infosystems Pvt Ltd for transmission of spam. It was held that in the absence of statutory protection to check spam mails on Internet, the traditional tort law principles of trespass to goods as well as law of nuisance would have to be used.

• With the growing number of Internet users every day and the increasing proportion of junk e-mail, it is essential that measures be taken to curb spam before it assumes gargantuan proportions like in the United States.

With the establishment of the Indian arm of the Coalition Against Unsolicited Commercial E-Mails (an International Organization against spam) some efforts are being made to combat the spam menace. However, in the absence of stringent laws and technical advancements, the proliferation of spam seems inevitable.

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