Spam or unsolicited mail is sent to a wide number of Internet users. Spam is mainly used for commercial promotion. Its other uses include social activism, political campaigning, and the distribution of pornographic materials.
Spam is one of the Internet governance issues that affect almost everyone who connects to the Internet. However, whereas 10 years ago spam was one of the key governance issues, it is today a less prominent issues thanks to highly sophisticated technological filters.
According to statistics from 2014, 66% of e-mail traffic is spam. Besides the fact that it is annoying, spam also causes considerable economic loss, both in terms of bandwidth used and lost time spent checking/deleting it.
Spam can be combated through both technical and legal means. On the technical side, many applications for filtering messages and detecting spam are available. Several best practices have been developed by the technical community, include those by the Messaging, Malware, and Mobile Anti-Abuse Working Group (M3AAWG), the Spamhaus Project, GSMA, and the Internet Society.
The issues of spam or unsolicited mail
There are various issues associated with spam. From a technical perspective, one of the main problems with filtering systems is that they are known to delete non-spam messages, too. For instance, Verizon’s anti-spam filtering led to a court case as it also blocked legitimate messages causing inconvenience for users who did not receive their legitimate e-mail. The anti-spam industry is large, and employs increasingly sophisticated applications capable of distinguishing spam from regular messages.
Another issue arises from the different definitions of spam. Different understandings affect the anti-spam campaign. In the USA, a general concern about the protection of the freedom of speech and the First Amendment affect the anti-spam campaign as well. US legislators consider spam to be only ‘unsolicited commercial e-mail’ leaving out other types of spam, including political activism and pornography. In most other countries, spam is considered to be any ‘unsolicited bulk e-mail’ regardless of its content. Since most spam is generated from the USA, this difference in definitions seriously limits any possibility of introducing an effective international anti-spam mechanism.
One of the structural enablers of spam is the possibility of sending e-mail messages with a fake sender’s address. There is a possible technical solution to this problem, which would require changes in existing Internet e-mail standards. The IETF has been considering changes to the e-mail protocol, which would ensure the authentication of e-mail. This is an example of how technical issues (standards) may affect policy. A possible trade-off that the introduction of e-mail authentication would bring is the restriction of anonymity on the Internet.
Most spam originates from outside a given country. It is a global problem requiring a global solution. There are various initiatives that could lead towards improved global cooperation. Some of them, such as bilateral MOUs, are mentioned below. Others measures include capacity building and information exchange. A more comprehensive solution would involve some sort of global anti-spam instrument. So far, developed countries prefer the strengthening of national legislations coupled with bilateral or regional anti-spam campaigns. Given their disadvantaged position of receiving a ‘global public bad’ originating mainly from developed countries, most developing countries are interested in shaping a global response to the spam problem.
The legal response to spam
Technical methods have only a limited effect and require complementary legal measures. On the legal side, many states have reacted by introducing new anti-spam laws. In the USA, the Can-Spam Law involves a delicate balance between allowing e-mail-based promotion and preventing spam. Although the law prescribes severe penalties for distributing spam, including prison terms of up to five years, some of its provisions, according to critics, tolerate or might even encourage spam activity. The starting, default, position set out in the law is that spam is allowed until the receiver of spam messages says ‘stop’ (by using an opt-out clause).
In July 2003, the EU introduced its own anti-spam law as part of its directive on privacy and electronic communications. The EU law encourages self regulation and private sector initiatives that would lead towards a reduction in spam. In November 2006, the European Commission adopted its Communication on Fighting Spam, Spyware and Malicious Software. The Communication identifies a number of actions to promote the implementation and enforcement of the existing legislation outlined above, as the lack of enforcement is seen as the main problem.
Both of the anti-spam laws adopted in the USA and the EU have one weakness: a lack of provision for preventing cross-border spam. The Canadian Industry Minister, Lucienne Robillard, stated that the problem cannot be solved on a ‘country by country’ basis.
A global solution is required, implemented through an international treaty or some similar mechanism. An MoU signed by Australia, Korea, and the UK is one of the first examples of international cooperation in the anti-spam campaign.
The OECD established a task force on spam and prepared an anti-spam toolkit. The ITU was also proactive by organising the Thematic Meeting on Countering Spam (2004) to consider various possibilities of establishing a global Memorandum of Understanding on Combating Spam. At regional level, the EU established the Network of Anti-Spam Enforcement Agencies, and APEC prepared a set of consumer guidelines.
Another initiative is the International Cybersecurity Enforcement Network implementing the London Action Plan. The network, established in 2004, gathers regulatory authorities, the technical community and the business sector to collaborate on cross-border spam enforcement.
More recently, measures against spam were introduced in the International Telecommunication Regulations which were amended in 2012. Among the new articles, two new provisions deal with the ‘security and robustness of networks’ (Article 6), and the prevention of ‘unsolicited bulk electronic communications’ (Article 7). However, the latter provision on spam does not contain binding language; rather, it merely states that states ‘should endeavour to take the necessary measures’ and encourages them to cooperate together. Similarly, Resolution 52 of the World Telecommunication Standardization Assembly ‘invites’ states to take appropriate steps to combat spam, and refers only to national frameworks.