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Date: Fri, 19 Sep 2003 07:14:39 -0700 (PDT)
From: "Ole J. Jacobsen" <ole@xxxxxxxxx>
Reply-To: Ole Jacobsen <ole@xxxxxxxxx>
To: Dave Farber <dave@xxxxxxxxxx>
Dave,
Here is some feedback from a person in the UK:
---------- Forwarded message ----------
Date: Fri, 19 Sep 2003 14:36:27 +0100
From: Christian de Larrinaga <cdel@xxxxxxxxxxxxx>
To: 'Ole Jacobsen' <ole@xxxxxxxxx>
Subject: RE: [IP] BBC: UK bans spam messages (fwd)
Ole
If you think anything here is relevant to Dave and the list please forward.
I've had a look over the statutory instrument and the following report has a
reasonable summary of the obvious points.
http://www.silicon.com/news/165-500001/1/6067.html?nl=20030919
But there is a bit more to it from a net head perspective.
From a policy perspective the crucial issue here remains the opt in / opt
out argument. US companies with European subsidiaries may find themselves
in a grey area.
However with the recent history of "spam" of all sorts it would have to be a
particularly bone headed commercial operator who today insists on opt out.
So hopefully the opt in perspective will come to be seen as just good longer
range commercial good sense as well as good manners.
From an enforcement perspective we will have to see what prosecutions
result.
From an Internet perspective the statutory instrument refers more to legacy
voice and fax services than it does specifically to electronic mail. It
deals with telephone and fax with some fairly specific items but email is
much less closely defined.
The definition of electronic mail is in itself quite interesting:
"electronic mail" means any text, voice, sound or image message sent over
a public electronic communications network which can be stored in the
network or in the recipient's terminal equipment until it is collected by
the recipient and includes messages sent using a short message service;"
...so nothing Internet specific here. Indeed mentioning SMS by name
indicates that mobile phone services are high in the mind of the drafter
whereas Instant Messaging is included only by interpretation in the round.
...and again in terms of directory information:
"(8) In this regulation, "telephone number" has the same meaning as in
section 56(5) of the Communications Act 2003(a) but does not include any
number which is used as an internet domain name, an internet address or an
address or identifier incorporating either an internet domain name or an
internet address, including an electronic mail address."
So telephone directory information appears to be impacted but not whois or
email directories Quite what happens with ENUM in regard e164 numbers in
NAPTR I need to think about! and perhaps so will a judge in due course.
...and on disguising the source of an email:
"23.A person shall neither transmit, nor instigate the transmission of, a
communication for the purposes of direct marketing by means of electronic
mail-
(a) where the identity of the person on whose behalf the communication has
been sent has been disguised or concealed; or
(b) where a valid address to which the recipient of the communication may
send a request that such communications cease has not been provided."
...which suggests that some types of remailers may be included in the
provision unless the content makes it clear who the sender is which is in
anycase now required as below.
" 24.-(1) Where a public electronic communications service is used for the
transmission of a communication for direct marketing purposes the person
using, or instigating the use of, the service shall ensure that the
following information is provided with that communication-
(a) in relation to a communication to which regulations 19 (automated
calling systems) and 20 (facsimile machines) apply, the particulars
mentioned in paragraph (2)(a) and (b);
(b) in relation to a communication to which regulation 21 (telephone calls)
applies, the particulars mentioned in paragraph (2)(a) and, if the
recipient of the callso requests, those mentioned in paragraph (2)(b).2)
The particulars referred to in paragraph
(1) are-
(a) the name of the person;
(b) either the address of the person or a telephone number on which he can
be reached free of charge."
Whether remailer services that change header information get caught up in
the provisions or not probably is worth a further look. The only way round
is to vet each mail has the correct identity in the content or to amend the
content to place the original header information as a section in the copy,
which would be very controversial.
The Regulator OFCOM is also required to do some work as in
"Register to be kept for the purposes of regulation 21"
which
"26.-(1) For the purposes of regulation 21 OFCOM shall maintain and keep
up-to-date, in printed or electronic form, a register of the numbers
allocated to individual subscribers, in respect of particular lines, who
have notified them that they do not for the time being wish to receive
unsolicited calls for direct marketing purposes on the lines in question.
(2) OFCOM shall remove a number from the register maintained under paragraph
(1) wherethey have reason to believe that it has ceased to be allocated to the
subscriber by whom they were notified pursuant to paragraph (1).
(3) On the request of-
(a) a person wishing to make, or instigate the making of, such calls as are
mentioned in paragraph (1), or
(b) a subscriber wishing to permit the use of his line for the making of
such calls, for information derived from the register kept under paragraph
(1), OFCOM shall, unless it is not reasonably practicable so to do, on the
payment to them of such fee as is, subject to paragraph (4),required by
them, make the information requested available to that person or that
subscriber."
...to understand the reference to lines rather than numbers the definition
is earlier given as:
"(4) Any reference in these Regulations to a line shall, without prejudice
to paragraph (3), be construed as including a reference to anything that
performs the function of a line, and "connected", in relation to a line,
is to be construed accordingly."
...again this is pure PSTN circuit based thinking.
the rationale for this seems to be that potential spammers will exclude
these numbers from their databases. Whereas the rationale of many email
spammers seems to have been to harvest such useful "addresses" to spam.
So there seems to be a conflict of expectations between what the pstn
provisions suggest and those for "electronic mail".
Again we may find this creating some further complications with ENUM
implementation for +44 which is now in Trials until the end of 2003.
What this Instrument is doing is defining "spam" as un-solicited and not by
content, but requiring certain contact data in the content of solicited
(allowed) spam.
I don't see it having a big short term impact, which explains the recent
bids at the Information Commissioners Office for an information resource on
spam to aid consumers.
It is more interesting to me to see how not very far government thinking has
come in regards a packet switching world rather than circuit switching.
Christian
Christian de Larrinaga
Network Brokers Ltd
+44-7989-386778