Law
Campaign
Transboundary
Cyber Crime
Spammers!
Beware
Abu
Hena Mostofa Kamal
Spamming
is the worse kind of cyber crime. The commonly accepted
definition of 'spam' is an electronic mail message sent
without the recipient's expressed permission for the purpose
of promoting real property, goods, or services for sale
or lease. Spam often is referred to more formally as an
unsolicited commercial electronic message. Now a days,
a large percentage of e-mailer often loathe the time spent
sorting through, identifying, and deleting unwanted and
unsolicited emails and fret over exceeding email storage
quotas resulting from the onslaught of unwanted messages.
Most important of all, spam creates distrust among internet
users in the digital economy, which could have an adverse
impact on the development of e-commerce. Spam can increase
'the online consumer reluctance' to participate in the
internet commerce. As we said earlier, spamming is a crime,
but spamming is not same as real world crimes. Real-world
crimes have several defining characteristics which a cyber
crime like spamming does not possess. Let us have an example:
Imagine
this stomach-churning scenario: Your company e-mail account
is receiving 1000 anonymous e-mail offering access to
adult sites, low-price drugs such as Viagra, DVD-copying
software, e.t.c. everyday. Due to this unwanted intrusion
it becomes impossible for your office stuffs to find out
important business e-mails from bulk of spam mails. So
you decide to report this misdemeanour to proper law enforcement
authority. In order to trace and punish the offender the
law enforcement authority faces the following legal predicaments
arising from the lack of 'four predominant fundamental
characteristics' which a real, real-world crime possesses
but a cyber crime doesn't. These are:
(a)
The most fundamental characteristic of real-world crime
is that the offender and the victim are physically proximate
to each other at the time when the felony is committed
or attempted. For instance, it is physically impossible
for Asif to kill Mezba if Asif (assassin) and Mezba (victim)
remains in different countries. But a spammer can send
spam from any part of the world to a genre of recipients.
All the he requires is unlimited access to a computer
that is linked to the Internet. With the aid of the net,
he may send spam to any e-mail account holder, he can
inflict "harm" upon anyone's reputation directly;
he may obtain information from the victim's computer by
hacking it and he may use the victim's credentials to
commit fraud on a grand scale. So the rule of proximity
is not affecting cyber crime at all.
(b)
A real world crime consists of an event involving one
victimiser and one victim. For example, if Nafees intentionally
kills his long term rival Feroz, the "crime"
- commences when the victimisation of the target (Feroz)
is begun and ends when it has been concluded (when Feroz
is murdered by Nafees); during the event Nafees focuses
all of his attention on the consummation of killing Feroz.
When the "crime" is complete, Nafees is free
to move onto another victim and another "crime."
This one-to-one character of real-world crime derives
from 'the constraints physical reality imposes upon human
activity': i.e. one can't commit two offences at the same
time. For example, a shoplifter cannot still from more
than one shop at a time; it should be noted that this
rule is not applicable to all situations. Prior to the
development of firearms and similar destructive weaponry,
it is possible for one person to cause the simultaneous
deaths of more than one person at one time. In cyber zone,
crimes like spamming is free from the 'one-to-one character
of real-world crime' as a single perpetrator can commit
thousands of net- crimes in a short period of time because
of its automated nature.
(c)
Every real-world crime requires some level of preparation,
planning and implementation and these activities must
be conducted in physical space, actual space. But spamming
is free from such physical constrains. For example, spamming
is committed in an electronic environment; since a perpetrator
is not physically present when the crime is committed,
one can no longer assume she/he will leave trace evidence
at the crime scene. Moreover, cyberspace lets perpetrators
conceal their identities; a spammer can enjoy anonymity
on a scale that is not possible in the real-world.
(d)
In Real-world only a small segment of a functioning society's
total populace are persistently engaged in criminal activity.
This means that much of the "crime" in a society
will be concentrated in specific areas, such as at Mirpur
or Jatrabari areas most of notorious crimes take place.
But it is still impossible to derive conclusions as to
how spam-circulation or other types of cybercrime manifests
themselves geographically and demographically. Consequently,
criminologists failed to develop the type of crime maps
(for cybercrime, especially spam-circulation) which law
enforcement authority uses to allocate its resources in
dealing with real-world crime.
Therefore,
it is wise to conclude that spams are free from any prevailing
crime pattern. Furthermore, spamming violates the assumption
of real-world crime in two ways:
(i)It is committed on a scale far surpassing that of real-world
crime; and
(ii) It represents an entirely new class of "crime"
that is added to the real-world "crimes" with
which law enforcement has traditionally dealt and with
which it must continue to deal.
As
a result, existing law enforcement authority's ability
to react to crime erodes because the resources which were
adequate to deal with the incidence of real-world crime
are insufficient to deal with real-world "crime"
plus cybercrime like spamming (The ISP AOL has reported
that it intercepts a billion spams a day. World-wide,
more than 13 billion spam e-mail messages are sent each
day. According to a 2001 European Union study, spam costs
internet users an estimated $10.6 billion a year world-wide
due to expenses for anti-spam equipment, manpower and
lost productivity). Moreover, spamming facilitates the
criminal conduct in such a way via matrix of Internet
that it is become a transnational problem for governments
and the individuals.
How
spamming becomes transnational problem:
Ali is a cyber merchant; his earns $ 50,000 a month from
his spam - business based in USA. Recently, America enacted
an 'anti-spam' bill and his business became illegal .So,
he bought a domain name and kept sending illicit e-mails
from Bangladesh to USA's cyber-consumers. As prevailing
Bangladeshi legislation failed to provide appropriate
remedies against those loopholes that still authorises
'spamming' from the soil of Bangladesh ,Ali's action becomes
legal .And American court cant not impose any restriction
against Ali for spamming. This makes spamming a transboundary
crime. Therefore, a transnational co-operation is highly
recommended to prevent spamming. Unfortunately, existing
international law is rudimentary in providing remedies
against spamming because it is difficult to identify standards
of conduct, or to secure preventive or anticipatory remedies
for spamming as techniques of handling multiple spam claims
are not well developed in the international law. Therefore,
co-operation with the nations for prevention of spamming
is required.
Law
against spamming at a glance:
In order to prevent spamming, the Australian House of
Representatives recently passed The Spam Bill 2003 and
The Spam Bill 2003 has now passed into the Senate for
consideration. If the Bill is passed by the Senate, it
will become law in Australia. The Bill regulates, not
just spam, but all commercial electronic messages. In
the United Kingdom, the Government introduced the Electronic
Commerce (EC Directive) Regulations 2002. These required
"unsolicited commercial communications" to be
clearly identified and identifiable as such, upon receipt.
The responsibilities of UK advertisers in relation to
email were increased further on June 4, 2003 when the
new Sales Promotion and Direct Marketing Code came into
force. USA has enacted into law a new Act regulating the
sending of commercial emails. The Controlling the Assault
of Non-Solicited Pornography and Marketing Act of 2003
(CAN-SPAM) came into effect on January 1st 2004. The CAN-SPAM
Act does not prohibit the sending of commercial email.
It does, however, prohibit certain fraudulent and misleading
practices and requires senders of commercial emails to
label these messages accordingly and give recipients a
means to opt out of future mailings from those senders.
The CAN-SPAM Act will have little impact on unethical
businesses that already engage in fraud or deception by
means of email. Those enterprises will locate their servers
offshore or take other measures to avoid prosecution,
and simply will continue to operate as usual.
Courts
approach towards spammers: the buffalo spammer case
In 2003 Howard Carmack, known as Buffalo spammer was charged
for sending of hundreds of millions of spam emails through
accounts Mr.Carmack sent about 825 million spam emails
offering for sale spamming software, herbal sexual stimulants,
and bulk email lists and he took a share of profits from
these sales. NY State Police, and the FBI's 'Buffalo Cyber
Task Force' were successful in penetrating his electronic
camouflage used by Mr.Carmack and arrested him. In this
case the plaintiff has won a $16 million judgement against
the defendant.
Willis-
griffin lawsuit [2003]:Paul Willis and Claudia Griffin
were charged for sending millions of unsolicited email
advertisements promoting products. The Santa Clara County
Superior Court ordered Mr.Paul Willis and Mrs.Claudia
Griffin to pay $2 million in civil penalties for violating
state laws prohibiting unsolicited commercial email, false
advertising, and unfair business practices.
The
author is studying Bar Vocational Course at the University
of Northumbria,UK.
