Spam has leapt from a minor annoying byproduct of e-mail to an epic business problem. Unsolicited e-mail is growing at a rate of five per cent per month. This equates to thousands of unwanted e-mails per week often totalling 75 per cent of messages an enterprise e-mail gateway must process clogging downstream wires and servers. Nucleus Research claims nuisance e-mail costs up to $1,500 per person annually in lost productivity which is why it has emerged as a global issue at the forefront of the government agenda. The Australian government began its anti-spam campaign in early 2002 with the then IT Minister Senator Richard Alston calling on the National Office for the Information Economy (NOIE) to investigate the growing spam menace and to propose recommendations. This culminated in the introduction of the Spam Bill 2003 to Parliament on September 18.
At the forefront of this campaign was NOIE's manager of online policy Lindsay Barton who, along with his team, drafted the legislation after it received Cabinet approval on July 22.
Barton said submissions were prepared in close consultation with industry including a half day workshop which canvassed the views of bodies such as the Australian Direct Marketing Association (ADMA), Internet Industry Association (IIA), Microsoft, Symantec and Yahoo. "Balance was the key to getting legislation which protected legitimate business practices while targeting spam, and spammers, and this broad-based consultation was essential in finding that balance,” he said. “All parties put their cases forcefully. We did not provide any concessions to any group.
“Where someone made a suggestion that would improve the legislation we took it on board, or if they expressed a concern about a possible untoward consequence we would examine that too."
Although there was no official advisory board, organisations such as the IIA were in constant communication with government departments. For example, a roundtable was held at Parliament House in late June to consider the form, scope and implementation of the Government's proposed legislation.
Participants included Freehills and Norman Waterhouse Lawyers; ISPs such as OzEmail and Telstra; content providers AOL/7 and ninemsn; and vendors Symantec, Yahoo, Microsoft, MessageCare. NOIE was an observer.
IIA chief executive Peter Coroneos said at the time that the legislation "must strike a balance".
"Some of the views aired at that meeting fed into my thinking and helped provide some nice tweaks to the legislation, but by that stage its form was largely set," Barton said.
Penalties under the legislation include fines of up to $1.1 million for each day messages are sent and will link in with other strands of a multi-layered strategy including government sponsored education campaigns, anti-spam filtering industry codes and international cooperation.
Announcing the Bill the former IT Minister Richard Alston said he expects the legislation to set an example for overseas jurisdications currently drafting their own laws.
"While legislation on its own is not a silver bullet which will instantly stop the spam influx, it is a critical part of the solution and is the only effective way to stop spam at the source," he said.
"Technical solutions can eliminate a lot of spam, but only after it has been sent; there is a clear need to stop it from being sent in the first place."
Some of the key features of the legislation include: an opt-in regime for commercial electronic messaging firmly based on the prinicple of consent; a requirement for accuracy and a functioning unsubscriber facility; a ban on electronic address harvesting tools, their use for the purpose of spamming and harvested address lists; the development of industry codes and; a civil sanctions regime including warnings, infringement notices and court awarded penalties. The courts can also compensate those who have suffered losses, and recover the financial gains made by spammers.
There will be a 120-day grace period after the Bill receives Royal Assent, for businesses to bring their practices into line with the legislation's requirements.
The government will use that time to provide additional information and education on how to avoid receiving spam, and how to ensure that outgoing commercial messages meet the legislative requirements.
The Australian Communications Authority (ACA) will receive an extra $300,000 in funding to enforce the bill.
ACA executive manager of consumer and universal service obligation John Haydon said further funds will be made available in consecutive years to implement a range of domestic spam countermeasures.
He said this includes targetting weaknesses such as ISPs and telcos that allowed open relays.
"There are a range of measures we are looking at, for example prohibiting the charging for downloaded material that is spam; when we do encounter spammers we will have a full range of powers from enforceable undertakings to court action. These people will have to ask themselves if it is worth it, because the court action could prove very expensive," Haydon said.
Haydon said the ACA will leverage its experience with the telecommunications industry and expects to have a forensic capability to investigate the origins of spam and addresses weaknesses on the Internet such as open relays.
Spam busting vendors like SurfControl managing director Charles Heunemann are cautiosly applauding the Bill.
"At least the government are doing something about it; what it will stop is Australia becoming a haven for spam-friendly ISPs. Spammers will be driven into the Badlands," he said.