CAUBE vs. Electronic Frontiers Australia on anti-spam proposals

[Declan McCullagh <declan () well com>]

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From: "Troy Rollo - CAUBE.AU Chair" <chair () caube org au>
To: declan () well com
Subject: Australian Spam Bills - CAUBE response to EFA Objections
Date: Wed, 8 Oct 2003 17:16:30 +1000
User-Agent: KMail/1.5.3
Organization: Coalition Against Unsolicited Bulk Email

Last week, Electronic Frontiers Australia released an evaluation of the Spam
Bill 2003 and the Spam (Consequential Amendments) Bill 2003, in which they
stated that the bills were "not anti-spam"
<http://www.efa.org.au/Publish/spambills2003.html>.

The Coalition Against Unsolicited Bulk Email, Australia (CAUBE.AU), has
reviewed the criticisms of EFA, and found that this label is entirely
unjustified. In particular:

- None of the three case scenarios offered by EFA as examples of situations in
which non-spam would be banned are correct. In each case the conduct in
question would be legal under the proposed law.

- The EFA analysis fails to reflect the flexible approach taken in the Bill
which is designed to ensure that even if there are unexpected consequences,
those consequences can be eliminated swiftly.

- The EFA approach gives more weight to the fringes of the legislation than to
the core provisions - indeed not one of the criticisms relates to the core
provisions.

- The feared outcomes pay insufficient regard to the background of the common
law, including the law of consent, administrative law, and the common law as
it relates to seach warrant powers, which render those feared outcomes not
just unlikely, but unlawful.

- The criticisms of the policy based exceptions fail to acknowledge that the
law is to be reviewed two years after the penalties come into effect, which
will include reconsideration of those policy exceptions, and to recognise
that most of the exempted groups have strong reasons not to spam.

While there is room for improvement, the Bill sets the right base standard -
opt-in. It provides a framework in which almost all of the concerns that EFA
has with the fringe areas can be fine-tuned by executive regulation. It is
wrong to claim that the Bill is "not anti-spam". The Bill does ban spam. Not
all spam, but the largest categories of spam. Its impact on non-bulk
commercial email is minimal, and adequate measures have been included to deal
with unforeseen consequences.

Although CAUBE.AU does not agree with all of the policy decisions made in
drafting Spam Bill 2003, its variances are not such as to warrant the
conclusion that it should not be supported.

Accordingly, CAUBE.AU continues to support the Spam Bill 2003 in its present
form.

A full reply is available at <http://www.caube.org.au/efa-reply.htm>.
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__________________________________________________________________________
Troy Rollo, Chairman, CAUBE.AU                  chair () caube org au
   Fight spam in Australia - Join CAUBE.AU - http://www.caube.org.au/
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