Shock, horror finding: spam disliked!

Most submissions on NZ draft report prefer an opt-in requirement, but not all

It will hardly be a surprise but those minded to comment to the government on spam dislike it.

All of those who responded to the draft spam report published in May by a team under associate IT minister David Cunliffe say spam is “an important issue”. Its prevalence has “markedly eroded people’s confidence in the reliability of email” says a digest of responses published last week. The most serious effect is through false-positive spam detection and anti-spam measures that misfire, so valid emails are missed, destroyed or wrongly stigmatised. Respondents say the prospect of being accused of spamming in the course of attempting productive communication is an “intimidating deterrent” to using email as a marketing tool.

“While effective filtering reduces the overall quantity of spam reaching the end user, this is merely a movement of the burden, not a solution,” the analysis of responses says. Almost all responses favour legislation as at least part of the approach to spam.

Some organisations favour self-regulation, but understand the need for legislation to signal New Zealand’s willingness to co-operate internationally in anti-spam measures and to avoid the prospect of the country becoming a “spam haven”.

Some respondents add, however, that Australian anti-spam law, which came into force in April is “a disproportionate solution”.

Current laws, such as Privacy and Harassment Acts were labelled ineffective by “all respondents except two”. (There were 42 responses in total, says Philip Toye at the Ministry of Economic Development). It was agreed that the number of repeated emails should not be a crucial determinant of whether a message is spam or not; rather the basic issue is one of consent or lack of it to receiving the email.

The validity of a distinction between electronic spam and physical junk mail has been a contentious point and respondents clearly went both ways. “Many … said that legislation should be technology neutral, but most felt that electronic media, especially those which involve little costs to the sender and/or the burden of costs falls upon the recipient, should be the focus of legislation,“ says the summary.

Some business respondents say it is crucial that spam be defined narrowly, so as not to inadvertently capture normal business communications. They suggest that the majority-favoured definition “unsolicited messages of a commercial or promotional nature” could be further qualified with the statement “where no prior consent or relevant relationship exists”. Several respondents mention the basic right to “impart and receive information of any kind” provided in the Bill of Rights (see Cunliffe interview, Computerworld October 13, 2003, p3).

Cunliffe seems to have won only a partial victory for his preference to frame the law around an opt-in condition. “Most respondents preferred an opt-in approach, with a few preferring double opt-in [where a user appearing to have opted in must be asked for a confirmatory email to prevent forged messages]. The respondents who wanted an opt-out approach were mainly concerned with being able to legitimately and cost effectively market or provide information on their products and services to their customer base.” Marketing people including a Microsoft representative were strong on this point at the Wellington workshop held on the subject (Computerworld July 5).

All the respondents say messages should have a genuine sender identifier, though views differ on what fields this should include. No consensus was reached on the need to include identifying tags for advertising or “adult” emails.

Acquisition and use of address-harvesting software for spam purposes is universally opposed. As to penalties for spamming: “most respondents recommended escalating pecuniary penalties depending on the severity of the breach. The penalties also should be commensurate with those under the Fair Trading Act and Commerce Act. It was also suggested that monies earned from, and equipment used in, spamming could be seized,” says the report.

The digest of responses can be read at www.med.govt.nz/pbt/infotech/spam/submissions-summary/index.html.

Individual submissions will be published on the MED website “in a couple of weeks”, Toye says.

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