This article has been written by Bhavna Ganesar during her internship.
Spamming most commonly relates to Electronic spamming. This problem has become so widespread that it’s begun to burden our information infrastructure. The most widely known sort of spam is email spam. However, what constitutes ‘unsolicited messages’ might be subject to diverse opinions. Spam would be far more than merely a billboard for products and services since it might be possible that there might be unsolicited messages that don’t advertise a product or service. The word “Spam” is known as after a lunch meat, by way of a Monty Python sketch a few menu that has Spam in every dish. The food is disliked by everyone hence the word came to be transferred by analogy. With the increasing number of Internet users in India, the absence of any legislation prohibiting spamming and therefore the dearth of other spam-control measures, it’s time the government took note of this menace.
It is defined as unsolicited bulk e-mail [UBE] or unsolicited commercial e-mail [UCE].
• UBE- It is an email message send to numerous email addresses where the receivers have no direct prior relationship to the topic of the communication.
• UCE- It is basically an UBE with contents which are commercial in nature.
The contents of UBE and UCE mat range from scams, sale of various products, illegal medicines, and false antivirus notifications etc. the person who creates and send the spam is called as spammer. Spamming remains economically viable for advertisers since they need no operating costs beyond the management of their mailing lists, servers, infrastructures, IP Ranges and domain ranges. Due to this reason, it becomes difficult to carry senders in charge of their mass mailings.
The first known history of email spam dates back to 1978, when a message advertising the supply of a replacement model of digital equipment corporation was sent to 393 recipients on ARPANET. A single mass email was sent instead of a separate message to every person. Though the reaction from internet community was negative, the spam did manage to get some sales. Spamming was being practiced as a prank by people to fill their rivals’ account with unwanted junk emails. The first known electronic chain of unwanted junk emails was titled ‘make money fast’ released in the year 1998. The first major commercial spam incident was when a team of lawyers started using the majority Usenet to advertise immigration law services. This event was commonly termed because the ‘green card spam’ because it is said to the topic line of the posting. In the wake of widespread criticisms, the lawyers claimed that that they had the proper to free speech including the proper to send unwanted commercial messages. By 2009, the bulk of the e-mail spam sent round the world was in English and hence spammers began using automatic translation services to send spam in other languages.
WHY SPAM IS HARMFULL?
Having defined Spam and Spamming, primarily now, in what ways it is harmful to people:
Many of the complaints arise in spam is related to its content. these objections to commercial messages, promote unclear ventures and messages that contain sexually explicit material, are commonplace. However, the only most vital objection is as far as messages containing contain harmful embedded code and hostile file attachments.
• Consumption of Internet Resources:
Spam represents a big proportion of all e-mail traffic, consuming massive amounts of network bandwidth, memory, space for storing, and other resources. Internet users and system administrators spend an excellent deal of your time reading, deleting, filtering, and blocking spam, as a result of which they pay more for Internet access.
Threat to Internet Security:
Spammers frequently make use of Simple Mail Transfer Protocol (SMTP) Servers and direct them to send copies of a message to an extended list of addressee. Third-party relaying generally represents theft of service because it is an illicit appropriation of computing resources. A company’s reputation could also be damaged if it’s related to spam due to third party relaying.
WHETHER IS IT CRIME?
There is a broad consent that the definition of cybercrime constitutes ‘a criminal activity committed on the Internet’. The element of criminal activity within the definition of cybercrime may be a deciding factor on whether spamming constitutes a cyber crime or is simply a time massacre. The main problem is the way to criminalize email spamming just in case it’s considered as a cyber crime. In other words, how wouldn’t it be possible to make a decision whether a criminal activity has taken place within the case of email spamming?
Criminal law, while encountering the matter of categorizing of offenses, usually refers to antiquated legislations that fit the fashionable crime. Hence, within the case of email spam, the road of attack is to label spam emails as an offense of trespass. However, the offense of trespass would hold good as far because the Internet Service Provider cares, and not the recipient of spam and junk email stands on the same footing as far because the recipient cares . Most opponents not favoring legal code legislation argue that to criminalize spamming would be restricting the proper to free speech. The argument put forth is that primarily the utilization of Internet is for sending and receiving emails and since it’s an unregulated domain and hence there’s a right to free speech. This contention is also cannot be ignored.
There are two cornerstone issues that form a neighborhood of spamming and free speech:
• The content of the spam mail.
• Forum by which the spam email has been circulated.
It should be noted that the proper to free speech isn’t an absolute one since it’s evident that there are certain limitations on the proper to the liberty of expression. Therefore, any spam email containing content which is sexist or inflammatory remark would be in breach of code. However, 90% of the emails that we receive as spam contain none of such content. Hence no crime has been committed. One must also note that the forum by which spam email has been sent is more important as is its content. Here the ultimate target would be whether the spam message constitutes public message or private message.
The law clearly states that the forum is public if:
• The forum is used for gathering and expression.
• The principle purpose of the forum is to permit the exchange of ideas.
A website would be a public forum. On the opposite hand, email accounts wouldn’t qualify the above two criteria. Hence they are designated as a private forum.
METHODS EMPLOYED BY SPAMMERS
1) User newsgroup posting
2) User registration at unscrupulous sites.
3) User chat sessions
4) From email lists the spammer boys.
5) From spam bots that crawl the online for any @ sign
6) From mailing lists to which users subscribe.
7) By harvesting all the e-mail addresses on your company’s server
8) By randomly creating name combinations for your domain.
HOW SPAMMING IS DONE
There are various methods through which spamming are done. The usually used ones are:
1) Rogue ISPs: Spammer with sufficient funds run rogue ISP. This enables them to use multiple domain names. It collect its own network numbering and multiple domain names from the inter NIC. It is possible to block a domain but not an ISP provider.
2) On-the fly’ Spammers: Such type of spammers, register themselves as multiple genuine users with different IPSs. They forge an identity or steal credit cards and use them to determine identities. They then use these accounts to start spamming. By the times, the ISP realizes that they are hosting a Spam run, the spammer switch to another account.
3) Blind Relays: Some poorly configured servers allow blind relaying i.e. sending messages without authentication. Spam is routed such blind relays.
LAWS AGAINST SPAMMING IN INDIA
Spam legislation is non-existent in India. Only the Information Technology Act 2000, section 79 and 43a suggest that an intermediary dealing with personal data has to pay compensation, in case it fails to protect the data. As well as, under section 67 punishments can be imposed if obscene content is published or transmitted via electronic means. Section 66A of the IT Act defines the punishment for sending offensive messages through any communication device kind of a mobile or a tablet. Penalties include fines up to INR 5, 00,000. In case of second or consecutive conviction, a fine up to 10, 00,000 and up to 5 years of imprisonment apply. However, the law is defined very in general and is only rarely enforced in email marketing cases.
There are many reasons for having a thorough legislation on controlling and punish spammers-
• The Delhi high court acknowledged the absence of appropriate legislation concerning spam in a recent case wherein Tata sans ltd and its subsidiary pantone finwest ltd filed a suit against McCoy Infosystems pvt ltd for passing of spam. It was held that within the absence of legal protection to see spam mails on internet, the normal law principles of trespass to goods also as law of nuisance should have to been used.
• With the growing number of internet users everyday and the increasing proportion of junk email, it is essential that measures be taken to curb spam before it assumes huge proportions like in the United States.
The Ministry of Information Technology has started to discuss the incorporation of provisions against the spammers. However, the Ministry is yet to make a decision whether the punishment against spammers should be punished out after verifying the character of the spam, that is, whether the act of spamming was done on purpose. In addition to the above effort, the Indian arm of the alliance against unsolicited emails has been established to form efforts to combat the spam danger. However, within the absence of rigorous laws and technical advancements, all the efforts to fight spam would be tough.
SUGGESTION FOR ANTI- SPAM LAW IN IT ACT, 2000
Globally, quite 50% of all e-mail traffic is now spam. The problem in India is increasing, at high cost to business and consumers. An alliance of Internet-related businesses must be formed to help consumers and businesses by countering spam in India. Permission to send a mail to any stranger must be obtain and just one reminder are going to be call such permission. On decline to send the permission it might be anticipate that the request has been turned down and use of the id except self must be strictly prohibited Spammers use tactics like to avoid the detection and to encourage unsuspecting consumers to open spam mail. With every mail detail id of sender made compulsory in order that his identification could also be traced Sending mail containing the false information should be consider as a significant offence. Any vague mail shouldn’t to be sending to anybody, if any people acted upon the assumption of any mail send to him, he should be compensated keeping within the mind, the common understanding by the intelligence of everyone. Any greedy or tempting mail shouldn’t be send to a person by making it an offence. There should be discussions and development of industry to produce best practices for commercial e-mail. Appraisal of extent of the spam problem in India through both longer and short term projects. In India, we can identify the effectiveness of anti-spam legislation through wide survey. The sharing of data would help to require an implementation action against high-volume spammers. Legislation associated with anti-spam must apply to companies also as a private who shall use false subject lines in their Email. There should be criminal and civil penalties imposed for fraudulent e-mails.
Exhaustive assessment should be made to stop reaping and therefore the use of “dictionary attacks and prohibitions on the utilization of scripts to determine large volumes of e-mail accounts from which to send spam. To control the spam e-mail government is additionally making his involvement during a wide selection of actors, including:
1) Facilitator and giver of anti-spam technologies Internet service providers (ISPs); commercial e-mailers
2) Many policy departments, regulatory bodies and enforcement agencies of national governments;
3) Intergovernmental and other international organizations involved in policy coordination and the development of technical standards.
4) Civil society organizations that represent consumer and business interests; who monitor and report spam.
Law associated with anti-spam shouldn’t occupy only organizations and individuals whose products are promoted in spam mail but also others who deliberately help within the transportation of unlawful spam.