Principles for Spam Policies
This page outlines guiding principles for spam policies for political parties. These principles are intended to be used as guidelines for political parties that are incorporating a position on spam legislation into their platform or policy documents.
The Core Problem To Address
The practice to be restricted is the sending of an email message to large numbers of recipients who have not requested it - that is, Unsolicited Bulk Email (UBE). "An email message" means messages containing either the same, or substantially the same meaning.
Bulk Vs. Commercial
The content of those messages is irrelevant. While it has become common to use the term "Unsolicited Commercial Email", or "UCE", this term arose in the United States, where it is believed unconstitutional to ban any kind of messages from non commercial interests. UBE that is not commercial exists, and is just as much a part of the problem as the commercial versions. Additionally, CAUBE.AU feels that the banning of single commercial messages would ban some non-abusive behaviour.
Determining Bulk
The rule of thumb we use is that "if a human makes a conscious and informed decision, on a message by message and recipient by recipient basis, that the individual message should be sent to that individual recipient, it is probably not bulk" Unfortunately, this definition is not useful in a legislative context, so a number must be chosen. Allowing for an eight hour working day, and ten minutes of research per recipient address to determine that they should receive the message, we come to a figure of 48 messages per day, which rounds conveniently to 50 messages per day.
Co/Self-Regulation vs. Legislative Proscription
Self-regulation relies on the existence of barriers to entry, and a need to protect an existing business investment. Neither of these factors exists for UBE, where there is no significant barrier to entry and no significant investment need be made on the part of participants. As such, legislative proscription of UBE is an absolute requirement for any approach to dealing with the problem to have any chance of success.
Penalties
Since the amount of damage caused by a sender of UBE is proportional to the number of messages transmitted, the penalty should increase with the number of recipients of a message. Additionally, since the root of the problem is the economic fact that email costs essentially nothing to transmit, cash penalties that alter these economics should be sufficient.
Enforcement
While some level of government enforcement may be a part of any regulation of UBE, it is unlikely that enforcement by government alone will be effective in this case. Government enforcement of UBE regulation is likely to be of a similar nature to enforcement of pyramid scheme laws, and the comparison would be a good one since both are characterised by damage being done cumulatively by large numbers of people, however pyramid scheme enforcement is sparse, as the fair trade departments which police these laws lack the resources to prosecute all of the people who participate in these schemes. Accordingly, government enforcement alone would be likely to result in UBE laws which are ineffective.
In the case of UBE, the recipient of a transmission can be identified as a wrong party, as the message has been transmitted without their permission. Consequently there is room for justification of a statutory award of damages against a transmitter of UBE to the recipient. Such a provision could be used either in place of, or as a supplement to, government enforcement.
Other Activities To Consider Proscribing
Unauthorised Relay
Unauthorised relay is the abuse of unrelated third party systems by spammers to deliver messages in a volume that they could not deliver using their own resources. This is a blatant form of theft of resources, and is also believed to be illegal under the existing computer crimes provisions of the Crimes Act 1914, however the only conviction to date for unauthorised relay under these provisions is the result of a guilty plea.
There would be significant benefit to an explicit ban on unauthorised third party relay of bulk messages.
Forgery
Federal forgery provisions are currently limited to forgery of Federal and foreign government instruments. Forgery of the email address of another, or any other forgery specific to telecommunications and postal services, is an area restricted by the Constitution to the Federal government, and is an area where there is currently a significant gap in the criminal legislative regime.
Spammers frequently forge email addresses belonging to others in order to get their message delivered, therefore there would be some benefit to criminalising the forgery of the identity of another in telecommunications, including the forgery of the email address of another in order to falsely imply that the message came from the owner of that email address.
Weaker Alternatives To Proscribing UBE
If a political party finds itself unable to support the legislative proscription of UBE, a weaker but marginally acceptable alternative would be to require senders of UBE to honour pre-emptive notice mechanisms, such as the SMTP banner as described in a proposal by CAUCE. This would still require legislative proscription against failure to respect such notices, penalties that increase with number of recipients, and individual enforcement either on its own, or alongside government enforcement.