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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 176
February 6, 2005

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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.



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