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Capturing Electronic Messages Based on Capture Rules

1. Do you consider spam to be an important issue? Has it significantly affected you in any way?

2. Do you think legislation has a role to play alongside other complementary measures?

3. Do you consider existing privacy protections in this area sufficient?

4. Do you agree that stand-alone anti-spam legislation is preferable to reliance on the Harassment Act?

5. What message mediums should be caught by the legislation?

6. Do the messages caught by the legislation have to be sent/conveyed to many recipients, and if so, how many?

7. Should the messages caught by the legislation be of a commercial advertising and promotional nature only or should other types of messages be caught? Should there be exceptions and if so what should be exempted?

8. Should the legislation extend to coverage of acts done overseas? If so, what acts should be covered?

9. Should all parties involved in the act of spamming, such as the vendor sponsoring the spamming, be covered by the legislation? Should there be express exceptions such as for telecommunications companies and ISPs?

10. Should New Zealand adopt an opt-in, double opt-in or opt-out approach in legislating against spam? Why?

11. If an opt-in or double opt-in approach was to be adopted, what should amount to express consent and what actions and/or relationships should amount to inferred consent to the sending of a “commercial” electronic message?

12. How should the scope of any opt-in or double opt-in assent be framed?

13. Should there be a requirement for commercial electronic messages to accurately identify the sender of the message? If so, what constitutes accurate identification?

14. Should there be a requirement for commercial electronic messages to include a statement to the effect that the recipient may use an electronic address set out in the message to send an unsubscribe message to the sender, and to ensure that such electronic address is functional?

15. Should there be a requirement that commercial electronic messages provide accurate header and subject information?

16. Should there be a requirement for the labelling of advertising or adult messages?

17. Should anti-spam legislation include rules against the supply, acquisition and use of address-harvesting software and harvested-address lists in connection with the unlawful sending of electronic messages?

18. Who should be able to bring an action against an alleged spammer?

19. What agency should have the enforcement role under the legislation?

20. What should be the available penalties and remedies for breaches of antispam legislation and what should be the maximum fine or pecuniary penalty?

21. Should contraventions give rise to criminal or civil penalties?

22. Should the responsible enforcement agency be given the ability to obtain search warrants conferring powers of entry, search and seizure?

Capturing Electronic Messages Based on Capture Rules

The Unsolicited Electronic Messages Act 2007 was established with aim of prohibiting the sending of any unsolicited message which are electronic in nature and provide a legislative stop to the growing industry. The Act is all about curbing unsolicited spam emails. These can the form of any electronic media- like instant message, SMS, MMS or can find their way through nay messaging service system. These email lists were further brought by business and they started using these lists for their own commercial purpose. This resulted in users getting messages they did not sign up for and this grew rapidly. The Government was put in a fix and was challenged to put a stop. Therefore, the Parliament passed the bill to put a stop and to make sure that the people do not receive unsolicited messages. Any message or mail sent to any person without their consent would lead to a breach of the provisions of this act and they would be held liable for breaching the Act. In all other countries like Australia, United Kingdom, anti spamming laws has been adopted.  The legislature has been very careful in placing the Bill in the Parliament with the aim that this Act shall curb spamming and the business practices in New Zealand will be regulated. Business in New Zealand have to ensure that they are following proper guidelines and are not sending emails that will harm the privacy of the people of New Zealand. The senders of these messages have to be very careful and they need to abide by certain requirements that uphold the integrity and primacy of the legislature. The Act is concerned with the sending of electronic messages which are done electronically. This Act does not include in its ambit voice calls and faxes.  The New Zealand Government is faced with severe spam issues and computers users and businessmen are at the receiving end of these increasing spam problems.  Therefore the Parliament decided to pass the Bill so that the people of New Zealand are not disturbed by these unsolicited messages, also termed spam. Therefore, the reason behind passing the Act was to ensure that spam is minimized and the inboxes are not clogged with these unnecessary messages that take up the time of private individuals and also businessmen. Spam has become a big threat to electronic communication and therefore it was high time that the Parliament realized and passed the Act in the best interest of the people of New Zealand. Spam is mostly in the form of pornography, illegal content which are a big threat to a person’s privacy and also a threat to the security and safety of the nation. Therefore the New Zealand Government has green signaled the signing of the legislation so that it becomes effective in curbing spam.

Endorsing Email Messages using Social Network Verification

1. There are two ways to deal with the increasing spam. The recipient of the spam message can either opt in, that is, the messages can only be sent to the recipient if he has expressly consent to it. The other method is the opt out option, which says that the message cannot be sent if the recipient has taken any action towards indicating that the messages sent by the sender is unwanted and unsolicited. There are few problems with the opt out process because it is seen as aggravating the condition further and it allows the sender to send any messages to the inbox and that will not be considered illegitimate. Therefore, the New Zealand Government is inclined towards applying the opt in method.

2. Consent is an important concept in The Unsolicited Electronic Messages Act 2007 because the whole act hovers around the point of getting consent from the recipient of the message before processing a request for getting commercial messages. Therefore, first a consent has to be obtained and then based on that, messages can be sent by the senders. Therefore, by allowing spamming, it is literally making sending unsolicited messages legal.

3. It is very important for the provisions of the Act to ensure that transparency is maintained. If there is lack of transparency, the sender shall never be identified and then it will be nearly impossible to stop the spamming. The issue of transparency is that the sender is never identified. The anti spam filter mechanism is avoided and also the identification of the sender is not properly. Therefore to avoid issues of transparency the senders must include the labels of ADVT and ADLT. Transparency is a big requirement in the purpose of minimizing spamming. The legislature does not acknowledge the issue of spamming and there are no options of unsubscribing from the messages and also no way to avoid misleading and inaccurate headers.

4. The Act applies to unsolicited and unnecessary messages that are electronic in nature and are sent in the form of SMS, MMS and without the consent of the recipient. These are in the form of spam and these are commercial in nature.

5. Minimum number requirement is no provision under The Unsolicited Electronic Messages Act 2007. The act does not talk about any number of messages that should be sent which will qualify as a spam. There is no upper cap on the number of messages neither is there a minimum number of messages requirement. Sending of messages without the consent pf the recipient shall deem it a spam.

Effectiveness of Anti-Spam Legislation

a. Section 4 of The Unsolicited Electronic Messages Act 2007 talks about consent whereby it is held that express consent can be inferred from the conduct of the parties and express consent is given by the electronic address holder. From the relation the recipient and the sender shares, it is easier to ascertain whether there is an express consent to receive messages. In the present case, the ones who have entered their details on the data base have expressly mentioned that they want to be told about the new stock and therefore sending messages to notify that new stock has arrived cannot be held to be spam. Therefore in the present case, by conduct, the customers have consented to receive messages regarding new stock and hence the messages cannot be considered to be unsolicited. Other than consent, it also needs to be checked if the messages are relevant to the particular business or trade. The messages sent in the present case are related to the business the sender is dealing in, and therefore, it cannot be held to be unsolicited and unnecessary.

b. Section 12 of The Unsolicited Electronic Messages Act 2007 talks about the defenses that are present with the sender of unsolicited messages. In cases when the sender of unsolicited messages sends an electronic message has a defense to prove himself innocent. He can do so by stating that the messages were sent by mistake or the messages were sent without the knowledge of the sender. The defenses are that the messages were sent because of either a virus or any other software programme. Section 12 (1) helps in defending the sender of messages under circumstances which are out of the sender’s powers. In the present case, hacker infected Anne’s computer and large volume of emails were sent out to her customers. Anne does not use emails in the general course of her business. the messages were sent to Anne’s customers without her consent and therefore Anne can use the defense of section 12 (1) of The Unsolicited Electronic Messages Act 2007. The onus of proof is on the person who wishes to rely on the defenses of section 12(1). Therefore, it can be said that since the messages were sent without the knowledge of Anne, she has not breached the provisions of The Unsolicited Electronic Messages Act 2007.

c. According to section 4 of The Unsolicited Electronic Messages Act 2007, until and unless a person consents to receive messages, the sender shall be liable for sending messages. These messages will be considered spam and unsolicited. In the present case, the provision of address harvesting shall be used which states that any software that is equipped to find out the address by searching the internet. Harvested address means a list or collection of email addresses. According to section 13 of The Unsolicited Electronic Messages Act 2007, a person is prohibited from sending unsolicited messages by searching the internet and using the address harvesting software. Therefore, in the present case, the address was found by searching the internet and therefore address harvesting method was used. Messages sent using the address harvesting software is illegal and a contravention of the Act.

d. Section 6 (ii) states that an electronic message is one that helps a person in obtaining dishonestly any financial advantage over another person. In the present case, the email did not contain the right information and was used as a bait to dupe readers into believing something that was not true. The message was deceptive and sent with an intention to get undue advantage. Moriarty has sent the email which does not contain all the right information and therefore it can be said that he has breached the provisions of The Unsolicited Electronic Messages Act 2007.

References

Golan, Lior, et al. "System and method of addressing email and electronic communication fraud." U.S. Patent No. 9,076,132. 7 Jul. 2015

Heikes, Brian Dean, et al. "Methods for capturing electronic messages based on capture rules relating to user actions regarding received electronic messages." U.S. Patent No. 9,070,118. 30 Jun. 2015.

Jania, Frank J., and Ruthie D. Lyle. "Endorsing E-mail messages using social network verification." U.S. Patent No. 9,471,898. 18 Oct. 2016.

Ju, Jaehyeon, et al. "Competing with Spams More Fiercely: An Empirical Study on the Effectiveness of Anti-Spam Legislation." (2017).

Kigerl, Alex C. "Email spam origins: does the CAN SPAM act shift spam beyond United States jurisdiction?." Trends in Organized Crime 21.1 (2018): 62-78.

Kigerl, Alex C. "Evaluation of the CAN SPAM ACT: Testing deterrence and other influences of e-mail spammer legal compliance over time." Social Science Computer Review 33.4 (2015): 440-458.

LeVasseur, Thierry, et al. "Secure electronic mail system with thread/conversation opt out." U.S. Patent No. 9,401,900. 26 Jul. 2016.

Logan, James D., and Charles G. Call. "Methods and apparatus for controlling the transmission and receipt of email message." U.S. Patent No. 9,363,084. 7 Jun. 2016.

Nikolayev, Alexander V., Weisheng Li, and Mauktik Gandhi. "Filtering electronic messages based on domain attributes without reputation." U.S. Patent Application No. 14/941,975.

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