Some Reflections on the Role of International Law in Internet Governance
Why Is There No International Law Of Anti-spam?
2011/3/24 9:32:54 点击率[4043] 评论[0]
【法宝引证码】
    【学科类别】其他
    【出处】Sungkyunkwan Journal of Science & Technology Law, Vol.3, No.1, Sungkyunkwan University, South Korea,
    【写作时间】2009年
    【全文】

       Spam, not like governments or courts, does not care about the borders among countries.
     
       Introduction
     
       In 2005, the second session of the World Summit on the Information Society (“WSIS”) convened at Tunis, discussed the issue of internet governance formally and published the final document of “Tunis Agenda for the Information Society”, which was hosted by the International Telecommunication Union (“ITU”)。 However, it did not produce any international legal rules about internet governance substantively.
     
       Based on the background, the paper attempts to examine and analyze the features and potential reasons of the international legal structure of the E-mail regulation and cross-border enforcement as a case study of internet governance.
     
       Some developed countries have begun to make laws and regulate the sending and contents of the E-mails since 2003 in order to promote the development of electronic commerce and reduce the threat and cost of spam. However in practice, the effects of these legislations and domestic regulation are not good no matter what the legal approach and regulation methodology these countries have adopted. One of the reasons is the globalization of E-mails and the non-boundaries of internet.
     
       Therefore some countries began to explore the mechanism of the international cooperation about the E-mail regulation and cross-border enforcement, and thus results in some bilateral and multilateral declarations or memorandum of understanding. However, the international mechanism and structure of current anti-spam regulation and cross-border enforcement cannot solve the problems of global spam. In sum, there are three features of international legal structure about anti-spam. First, there is not any global agreement that is wide enough to cover the global internet. That means there is no international law which is binding. Second, the number of the participants is not only small, but also most of the participating parties are the developed ones. Last, the contents of international cooperation are limited within the legal enforcement, not including the legislation and criminal justice of anti-spam.
     
       Why? The reasons for the legal structure of international E-mail regulation and cross-border enforcement are complex. One reason is the particularity of internet and issue of the spam; other reasons are related with the divergence among the domestic legislation and regulation against spam, which makes the cross-country coordination of the state interests and values in respect of the regulation of E-mails difficult.
     
       Specifically, internet is new and its application in the social life and civil society has lasted no more than twenty years. The international consensus regarding the anti-spam and E-mail regulation does not emerge from the debate and divergence, and the international law cannot come out without the consensus. The second reason for the formation of international legal structure regarding the regulation of E-mail and extraterritorial enforcement is that it is a complex and small issue. That the issue is small means that it is not important enough and prior within the agenda of most countries. That it’s complex means that the regulation of E-mails involves many aspects of rule of law, including the policies of communication, trade and competition, the constitution protection of speech freedom, the protection of privacy (Personal Data), the protection of consumers, and the identification of crimes. So the international coordination of the legislation, enforcement and judicial system of anti-spam is very difficult.
     
       The international regulation of E-mails is one of the sub-topics of internet governance. The current situations and problems of international legal structure of E-mail regulation and cross-border enforcement reflect the barriers to the international cooperation of internet governance in the future.
     
       1. The necessity of international cooperation in national governance of E-mail
     
       The reason for the necessity of E-mail supervision is the majority of E-mails are spams. Spam ,which is also called Unsolicited Bulk Mail, is the mail which violates the desire or is valueless to the receiver with intentions of the senders mainly direct marketing. There is no doubt that the precise definition may be different from country to country. In some country, spam is restrict to the commercial intention of direct marketing, but some other countries are not, but the essential nature of spam is the receives` needlessness, in a word. Never the less, definition diversity do not impact our discussion on the following questions.
     
       1.1    Why do Spam Need Supervision?
     
       Internet and E-mail give facilities to the information communications among people, whereas, spam encumbers the communication function of E-mail and internet. First, it is a kind of intrusion to the internet users. Receivers need both time and energy to eliminate spam, in order to distinguish and pick up the needed ones. It is investigated that 62% of the internet users have to use at least five minutes on the elimination of spam on average. Further more , there is proximately a quarter who needs ten minutes , two percent who needs more than half an hour to distinguish and delete the unneeded mails manually.
     
       This kind of interference does give rise to huge negative impacts to an electronic business operator with E-mail the main methods or even the only way to communicate with its clients and contact business. Just image the necessity for their employees to carefully identify real order forms and picking them out with the caution of not mistakenly deleting them from a heap of spam when they get up to send and receive E-mails but to find the mail box filled with spam, topic as “You Need to Speak Fluent English”, “Secure Authorization Process” ,“Associate Bank eManager Please Update Your Identity”, “Join 21st Century Club, and you will get 21st Century Commercial Comments for half an year for free ” ,“Financing Weekly” etc.
     
       Negative effects of spam is not only intrusion but also real costs of society. Internet transfer loads are increased. More and more powerful filtrating techniques need to be developed by net and E-mail service providers. According to the statistics of 2004, spam gave rise to US companies an extra cost of 9 billion dollars. The costs of broad band and technique update will be a ultimate burden of consumers.
     
       Filtration softwares may make mistakes, such as some over-alert ones` deleting non-spam when filtrating spam, which may undermine the information communication function of internet.
     
       What’s worse, turning from ordinary intrusion , spam has become to a real threat to the internet securitywith phishing E-mails ,porn E-mails, spy software infringing privacy, defrauding consumers, and craplets spreading computer virus even tools of crime.
     
       Cost of spam is burdened by net service provider and E-mail receiver, whereas, the interest is enjoyed by the mail sender. Different from posting mails by postal system in real world with the cost and fees covered by the sender, the service cost of the sender is almost zero, but profits may be huge by sending spam to release commercial advertisements and marketing products, which is the exact foundation of the first successful commercial direct marketing in history. April 12th ,1994 ,is the birthday of spam. On that day, a lawyer named Cater and his wife sent advertisements to approximately six thousand news-consumer groups on internet for the consideration of marketing their legal services on immigration. Though great indignation was evoked, with one hundred million dollars income it was commercially successful. From then on , businessman started to realize the potential of E-mail as low-cost but efficient method to connecting potential customers, so the E-mail advertisement booms.
     
       1.2 The internationality of spam issues
     
       Because of the social harmfulness, many countries frame special regulations for the purpose of supervising and reducing spam. The following parts are examples of United States and Australia which represent two different methods on domestic legislation supervision : the former one belongs to “choose to exit” legal method, putting emphasis on mail contents supervision, and the latter falls into “choose to enter” legal method which prohibit sending direct marketing E-mails contrary to the desire of receivers.
     
       But the implementation effect of internal supervision is not ideal irrespective of applying the “choose to exit” method or the “choose to enter” one.
     
       From a worldwide perspective, spam receiving rate at user ports is an important benchmark of regulation implementation effect. It was a little bit more than fifty percent in 2003, but the average rate was sixty to ninety percent in 2007 after a four-year-debating both in legislative and enforcement fields. Another report from MessageLabs on annual information of 2006 said that world spam rate  was up to 86.2 percent. In addition, the spam block amount by net service provider is also an index to show the severity of this problem. According to a report from Microsoft in 2007, about 3.2billion spams were blocked by their hotmail server filtrate software per a day.
     
       Though there are multidimensional reasons for implementation ineffectiveness, such as economic, technical and legal reasons, from international collaboration and international law aspects, lacking of efficient international supervision and implementation cooperation in fighting against spam is an significant causation.
     
       On the premises that internet is borderless which enables spam to break through form the country with weakest supervision system and diffuse to ever single corner where internet accesses, international cooperation mechanism is important to spam governance. If there is one country with legislation combating E-mails unmatched to their policies or applying strict supervision, the only thing for the sender to do to send E-mails globally is to transfer the platform to another country with less or even no supervision, no matter it is Korea or Germany. The example of Canada, the second largest source of spam in 2004 according to an investigation,where no E-mail supervision prior to 2007, illuminated the global transfer of internet and E-mail problems.
     
       2. Legal Structure of international E-mail regulation and cross-border enforcement
     
       The present international cooperation mechanism and international legal orders are introduced in the following three parts : the coordination work of international organization, bilateral agreements, and multi-lateral agreements.
     
       2.1 Anti-spam coordination and efforts of international organizations
     
       2.1.1 OECD
     
       In order to coordinate the anti-spam work of governments, enterprises and non-governments, Organization for Economic Cooperation and Development(OECD) Task Force to Coordinate Fight against Spam was established by OECD as early as August,2004 ,with the aim of ensuring every participant focusing its efforts on priority areas, improving coordination between different policy communities. Its key objectives include coordinating international policy responses in fight against spam, encouraging best practices in industry and business, promoting enhanced technical measures to combat spam along with improved awareness and understanding among consumers, facilitating cross-border law enforcement,and benefiting  developed and developing economies alike.
     
       OECD further published “Anti-spam Toolkit of Recommended Policies and Measures” in April,2006as one of the main achievements. The toolkit involves eight aspects: regulatory approaches, enforcement, industry-driven initiatives, technical measures, education and awareness initiatives, cooperative partnerships, spam metrics, and global cooperation, etc. It is so comprehensive and specific that almost includes every aspects in supervision.
     
       2.1.2 APEC
     
       Lima Declaration was announced by APEC ministerial meeting in June,2006 with annex E “APEC Principles for Action against Spam”, a set of principles aiming at eliminating spam, and the seven anti-spam principles forms the main contents. They are: cornerstone function of high level government commitment and a multilayered approach to the effective control of spam; key component role of strong domestic anti-spam regulatory measures in the undertaking of anti-spam activity; importance of anti-spam technology and standards in the fight against spam; the identification of an agency/agencies to undertake domestic action and negotiate international coordination and cooperation; the key role of the Marketing, ISP and ESP industries, as well as consumers in promoting anti-spam responses; the essentialness of domestic and international cooperation to control spam and its effects; the work of other organizations, domestic and international, resource function for anti-spam action plans; the necessity of efforts to make proposals and activity coordinated and consistent. There are also implementation guidelines, besides.
     
       2.1.3 ITU, WSIS, and the Internet Governance Forum
     
       The first and second stages of WSIS was held separately at Geneva and Tunis in 2003 and 2005,called by ITU. “Declaration of Principles (Geneva)” and “Plane of Action (Geneva)” were the first staged achievements. “Spam is a significant and growing problem for users, networks and the Internet as a whole. Spam and cyber-security should be dealt with at appropriate national and international levels. ”which was says in “Declaration of Principles (Geneva)” on building confidence and security in the use of Information Communication Technology.
     
       One of the two main topics of World Summit on Information Society( second stage) was internet governancewith anti-spam concrete contents. The importance of multilateral, multi-stakeholder participation and international cooperation was recognized in final documents “Tunis Agenda for the Information Society” by representatives, which also manifested their confidence in dealing with spam issues, suggesting multi-pronged approach to counter spam which includes consumer and business education, appropriate legislation, law-enforcement authorities and tools, continued development of technical and self-regulatory measures, best practice, and international cooperation, etc.
     
       The Internet Governance Forum , function of which was providing a forum for public and private stakeholders to further discuss net governance issues , including spam, after WSIS, was established according to the summit.
     
       2.2 Bilateral agreements
     
       Australia is an active external anti-spam driving force. Memorandum of Understanding Between the Korea Information Security Agency and the Australian Communications Authority and the National Office for the Information Economy of Australia Concerning cooperation in the Regulation of Spam was signed in October,2003, with encouragement of exchange of information about policies and strategies for establishing and enforcing anti-spam regulatory frameworks, information and strategies about the effective use of regulation policies by government and in support of Government enforcement, intelligence relating to a third country gathered as a result of government enforcement, and industry collaboration. Commitments on the establishment of liaison office for information exchange, delegation and visits exchange were made.
     
       US Federal Trade Commission signed bilateral cooperation understanding memorandums on anti-spam with Spain, Mexico separately in 2005. “Memorandum of Understanding on Mutual Enforcement Assistance in Commercial E-mail Matters” was between the Federal Trade Commission(FTC) of US and the Private Data Protection Agency of Spain(AEPD) aiming at strengthening cooperation among government agencies countering spam violation in information disclosure, investigation ,evidence obtaining and other areas. In addition, “Memorandum of Understanding on Mutual Assistance in Consumer Protection Matters ”, parties of which are US and Mexico, put enforcement cooperation of anti-spam into the frame of consumer protection.
     
       2.3 Multi-lateral Agreements and Arrangements
     
       2.3.1 the London Action Plan
     
       “The London Action Plan on International Spam Enforcement Cooperation” was signed by governments and public agencies responsible for enforcing legislations concerning spam form 27 countries in October,2004,London, purpose of which was to promote international spam enforcement cooperation and address spam related problems, such as online fraud and deception, phishing, and dissemination of viruses. It is opened to other interested government , public agencies, and appropriate private sector representatives ,as a way to expand the network of entities engaged in spam enforcement cooperation.
     
       The main contents are as follows: the participating governments and public agencies ,intend to use their best efforts, in their respective areas of competence, to develop better international spam enforcement cooperation, and intend to use their best efforts to designate a point of contact within their agency for further enforcement communications under the Action Plan, encouraging communication and coordination among the different Agencies that have spam enforcement authority within their country or region to achieve efficient and effective enforcement, and to work with other Agencies within the same country or region to designate a primary contact for coordinating enforcement cooperation under this Action Plan. Taking part in periodic conference calls to discuss cases, legislative and law enforcement developments, encouraging dialogue between Agencies and appropriate private sector representatives ,encouraging and supporting the involvement of less developed countries in spam enforcement cooperation. The London Action Plan gives similar appeals to the participating private sectors also.
     
       As to concrete actions, the London Plan Action organized a few successful actions, as well as taking international “cracking down” movement specifically towards spam. More than 300 cross-border spam investigation and enforcement cooperation actions were launched in one day according to the Operating Platform Clean-out Action Plan in February, 2005.
     
       2.3.2 Europe and Asia Cooperation
     
       EU promulgated Directive Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector(“Directive on privacy and electronic communications”) in 2002, E-mail supervision involved. Its member states are required to prohibit direct marketing E-mails concealing the identity of the sender or without a valid address to which the recipient may send a cease request of further communications.
     
       On behalf of promoting governance on spam, 13 European Countries reached an agreement of anti-spam agencies sharing information and handling cross-border E-mail complaints in 2005, purpose of which was to make the identification and prosecution of spammers easier and establish a common procedure dealing with cross-border spam complaints at the same time. However, the agreement is not compulsory which only require participants to try their best effort to assist other members prohibiting spam.
     
       Asia-Europe (ASEM) eCommerce Conference was held afterwards, and a joint statement on international anti-spam cooperation was signed. The participants consented to taking action to combat spam nationally and to promoting constant cooperation of international organization and efforts on anti-spam.
     
       2.3.3 African Countries Cooperation
     
       Nineteen CAPTEF countries signed a declaration on recognizing the importance of anti-spam, which emphasized collecting national contacts responsible for different areas ,and their dissemination to international organization. it also reinforced the cooperation in sharing information on legislation, specific country needs, and anti-spam technologies.
     
       2.3.4    Asia-Pacific Cooperation
     
       For the sake of more countries and regions participation, “Seoul-Melbourne Memorandum of Understanding on Anti-Spam Multi-lateral Cooperation ” a multi-lateral arrangement was developed on the blueprint of Australian anti-spam bilateral agreement, members of which are Australia, China, Japan, Korea, Hong Kong(China), Malaysia and some other associations and organizations up to the end of 2007. The contents are mainly about anti-spam legislation, supervision ,information and intelligence sharing, exchange channels  establishment, similar to Seoul-Melbourne Memorandum of Understanding on Spam Supervision Cooperation singed by Australian Communications Authority (ACA) and the Korean Information Security Agency (KISA) in 2003.
     
       2.3.5 Tri-lateral Arrangement
     
       On the premises of recognizing the respective domestic regulations, along with strengthening cooperation in E-mail international supervision and enforcement, “Memorandum of Understanding on Mutual Enforcement Assistance in Commercial E-mail Matters ” was signed by the US Federal Trade Commission, the UK Fair Trading Office, the UK Information Commissioner, the UK Secretary of State for Trade and Industry, the Australian Competition and Consumer Commission and the Australian Communication Authority in 2004.
     
       It is probably the most comprehensive international documents on international cooperation of E-mail in area of transnational supervision and external enforcement.
     
       Cooperation with best efforts in the implementation of another member’s anti-spam regulations by assisting requester to obtain evidence and conduct investigation, providing or obtaining evidence on determining whether a person has committed or is about to commit a spam violation on reciprocal basis, facilitating the administration or enforcement against spam violations, informing each other about spam violation occurring or originating in the its territory, are the main contents, in addition to evidence sharing and information exchange.
     
       Enforcement assistances are detailed as follows: (a)using best effort to disclose, provide, exchange, or discuss evidence in the possession of any Participant ; (b) using best effort to cooperate in the detection and investigation of spam violation; (c) using best effort to obtain or arrange the obtaining of evidence at the request of a Participant, including testimony, documents, records or other forms of documentary evidence, locating or identifying persons or things; (d) using best effort to assist in service of process; (e) using best effort to share information provided in complaints by users; (f)in appropriate occasions, coordinating enforcement against cross-border spam violations.
     
       In addition to substantive assistance above, there are also articles on procedure in the memorandum, though a little sketchy, which include request sending out procedure, identification of the person subject to investigation , general description of the subject matter, general description of the evidence needed, description of the requesting action , investigation procedural or evidentiary requirement description, confidential treatment requirements and any other information that would be helpful in facilitating review or execution of a request.
     
       Enforcement assistance is not unconditional, a participant shall deny a request on some occasions . “Memorandum of Understanding on Mutual Enforcement Assistance in Commercial E-mail Matters ” does not require participants to cooperation in every aspects of spam enforcement, but focusing on extremely severe aspects. moreover, the preliminary issue is the consistency to its domestic laws, international obligations, enforcement policies and other important interests, otherwise, the requested participant shall decline to provide assistance. More specifically speaking , on conditions of certain information exchange is prohibited by the  national law of the requested participant or the share of information incompatible with the requested participant’s important interests, the participant shall choose not to share. Sometimes the requested participant shall only consider part of the assistance requirements. But the memorandum requires the requested participant to provide the requesting participant with an written explanation of the basis for refusal.
     
       2.4       Legal Structure of E-mail International Supervision and Cross-border Enforcement
     
       Theoretically speaking, for the purpose of effective governance of spam at the link of international cooperation mechanism, no matter what the legal binding effect of international documents on global  supervision and cross-border enforcement is, transnational cooperation mechanism should deal with issues as follow: First, a binding international agreement with all internet accessed political regions as participants should be made. Second, it should coordinate legislations of different regions, including the definitions of illegal E-mail, the contents on legal responsibilities of violated E-mail from both civil and criminal aspects. Third, on enforcement, dealing with jurisdiction conflicts, a cooperation mechanism on cross-border investigation, evidence obtaining and violation complaining should be established. Forth, on juridical aspect,  conflict law problems such as jurisdiction conflictions, choice of law ,recognition and enforcement of juridical judgments, should be resolved.
     
       Present transnational cooperation mechanism could not handle effectively facing the globality of spam issues, international sources and transnational impacts included, The characters of current legal orders on anti-spam collaboration field are as follows.
     
       First, current international cooperation documentations on E-mail supervision and cross-border enforcement are just loose framework of cooperation at the rudimentary stage. Names of the documents are mainly ” memorandum of understanding” or “declaration ”, and there would always be flexible wording, ex. “using best efforts” or “intend to” ,in the content of the documents. Moreover, lots of memo of understanding on enforcement cooperation have “unbinding force” written in their main text.
     
       Second, participants of cooperation in E-mail supervision and external enforcement are mainly developed countries who take up a very small amount of the net-covered countries, for example, there are only less than thirty countries (regions) involved in the London Action Plan till present, which probably enjoys the broadest participants.
     
       Third, the current international cooperation is limited to enforcement collaboration of implementation agencies leaving blank of legislative and criminal juridical cooperation, etc. at present, cooperation mainly involves two parts. The first part is information exchange, which includes legislative information, policy information and technical information exchange, notification of anti-spam action for example. The other part of cooperation is assistance of investigation and obtaining evidence in the territory of a contracting party for the sake of facilitating anti-spam enforcement action of another participant. There is no international cooperation in juridical assistance and legislative coordination on E-mail, which should include the unification of existing E-mail legislations and urging the relevant countries on making spam supervision regulations.
     
       3. The Determinants of Legal Structure of International E-mail Regulation
     
       Strictly speaking, there is no international law within contemporary order or system of international regulation of E-mail. Then, the next question is what factors contribute to the system. The following will show that there are two factors related to the system of international spam regulation. One reason is that the differences of values, policies and laws on the control of E-mails are big, and the cross-country coordination of nation interests is difficult; another reason is that the regulation and control of E-mails is a complex and small issue, and it is difficult for the international law to emerge in the field.
     
       3.1. The differences of legislation relating to anti-spam among countries are big
     
       We can demonstrate the legal differences related with anti-spam from three perspectives: (a) whether one country has the legislation related with E-mails, (b) the difference in the regulation approach and the specific contents of the legislation in the countries which have the legislation about anti-spam, and (c) the difference in the legal liability against spam.
     
       First, most of the countries or areas in the world do not make laws against spam.
     
       Only a few countries or areas have legislations against spam in the world currently. The website of ITU has updated the survey of the domestic legislation about anti-spam. According to the information collected and surveyed by ITU, there are about twenty eight countries or areas that have the legislations in the field of E-mail regulation worldwide. They are Argentina, Canada, Chile, China, Columbia, Denmark,Estonia, European Union, Finland, France, Iceland, Italy, Japan, South Korea, Hong Kong, Lithuania, Malta, Mexico, New Zealand, Portugal, Russia, Singapore, Spain, Swiss, United Kingdom, and United States. Thus, most of the countries (and areas) do not have the legislation against spam. That’s to say, the behavior of sending E-mails, no matter sending the unsolicited bulk E-mails in order to market or other bulk information, is the sphere of the freedom of citizens, and legal. So it is difficult for these countries where sending E-mails are free, to become a party of the multilateral framework or convention against spam.
     
       Second, the legal approach to the E-mail governance is not the same.
     
       It’s different in the logic of legislation on how to regulate the E-mails and govern the internet even though in the countries with the anti-spam legislation. The United States and Australia may be the earliest ones with law and regulation against spam, but they believe in different philosophy of regulation and adopt different legal approach respectively. The U. S. is fairly typical of the countries that choose the regulation approach of opt-out. The countries such as the Australia adopt the one of opt-in. The anti-spam approach of opt-out is different from the one of opt-in.
     
       Generally speaking, the legal approach of opt-out means that only if the receivers choose not to be put in the list of the senders or give senders a notice that the receivers hope not to receive the E-mails from the E-mail address, it is illegal for the senders to continue to send the unsolicited E-mails to the recipients. That means sending E-mails is the sphere of speech freedom and legitimate commercial freedom, and each senders at least have one chance to send a marketing E-mail to each E-mail addresses.
     
       On the other hand, others adopt another different logic and approach to regulate E-mails. For instance, the anti-spam legislation of Australia may be the most advanced ones in the world. It forbids all the E-mails without the consent or permission of the recipients. “Consent” includes the express consent and the non-express consent of the recipients, to which the judgers can reach only by the objective and extrinsic situations.
     
       Furthermore, different approaches to regulate E-mails would lead to the different contents of specific legislations. For instance, the specific contents of the U. S.’ legislations concentrate on what is forbidden. That means the behaviors which are outside the forbidding stipulations are legal and free. The legislations of the U.S. forbid the wrong or misleading header information, forbid the use of fraud head, forbid the misleading contents of E-mails or the topics of E-mails, and forbid selling the E-mail addresses to others. By comparison, the legislations of Australia with the legal approach of opt-in focus on listing what are legal, and the E-mails which come from or send to territory of Australia must comply with these rules. Under the legislations of Australia, the E-mails must show and confirm the way in which receivers could contact and notice the senders apparently; the contents of E-mails could only include two kinds of information, the factual information and the information about the senders. In sum, these differences are the reflections of the regulation philosophies.
     
       Third, the rules about liability for violating the related laws exists some differences.
     
       Generally, these differences in the legal liabilities of illegal E-mails are shown in two aspects. One divergence is that whether the illegal senders sustain the criminal responsibilities. As for the point, countries such as the U.S.A and Italy stipulate that the illegal senders would have the criminal liabilities in addition to the administrative sanctions if the illegal situations are serious. On the other hand, there are no criminal liabilities for illegal E-mails in Australia, but only the administrative liabilities led by the Communication and Media Department of Australia. These administrative sanctions include warning, the notice of violation of law, or the fine on the illegal senders which is through the judicial system and needs the consent of the court (the biggest fines are 222.000 of Australian dollars)。
     
       Besides, another divergence in the liabilities for violating related anti-spam rules is whether the private litigation is allowed legally. For instance, the legislations of the U.S.A allow the Internet Service Providers sue the spam-senders in order to compensate the loss. Conversely, the internet users do not have the right to sue and get the compensation from the spam-senders according to the rules of the U.S.A. In contrast, anyone who has losses due to the E-mails which violates the laws has the right to sue and get the compensation under the legislation of Australia.
     
       3.2. The issue of anti-spam has some particularities itself.
     
       In general, there are three features of the anti-spam issue.
     
       First, it has been not long since the appearance of internet and the debates about how to govern internet are fierce.
     
       The final declarations of the two sessions of the WSIS did not clarify what is internet governance. According to the definition proposed by the Work Group of Internet Governance, internet governance is the development and application by Governments, the private sector, and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programs that shape the evolution and use of the Internet. The definition may be obscure in some sense. In practice, the specific issues under the subject of internet governance are internet crime, spam, the protection of privacy, the protection of intellectual property rights, and the management of the Domain Name System.
     
       Internet is new. The application of the internet in the civil society and social life began at about the mid of 1900s’ and lasted just a little less than 20 years. The time span is short for the international society to form the cross-country governance consensus regarding the internet and spam. In fact, there are totally different views about how to solve the problems the internet brings about and whether there is need and feasibility for the nations’ regulation. Even it is debatable whether it is possible for the government to play a role in the internet community. One view is that there is no need for the nations to intervene and the problems that emerge from the internet society can be solved by autonomy and only by this can the openness and freedom of the internet society maintain. Of course, another view is that internet needs the intervening of the nation power and government regulation. The divergences in the methodology of internet governance directly lead to just only some non-binding principles or declarations in the final documents of the WSIS, not a binding convention on any sub-topic under the subject of internet governance. And finally the Forum on the Internet Governance was established to continue the discuses of issue in order to arrive at consensus.
     
       Second, the issue of E-mail regulation involves many aspects of rule of law.
     
       Towards the new problem of unsolicited bulk E-mails, the domestic attitudes and policies have been related with many legal aspects and specific contents, as following: the policy of communication, trade, competition law, the constitution protection of freedom, the privacy protection, the consumer protection, the identification of crimes and so on. As the methods or ways of marketing and advertising, the E-mails are related with two aspects: on the one hand it is involved with the consumer protection, on the other hand the country need to protect and promote the competition behaviors of enterprises. The E-mails are the methods or ways to express ideas and speeches, and the regulation of E-mails is related with constraint on the speech freedom. The regulation measures and the methods of filtering the E-mails are also involved with spying on the E-mails and the related privacy……
     
       Especially, the regulation of E-mails is involved with the constraint on the speech freedom inevitably, which has the top priority in some countries’ views of values such as the U.S.A where the regulation of E-mails must be within the sphere of the first amendment of American Constitution. That’s why the latter article which stipulates that participants must protect and respect the privacy and the speech freedom as contained in the relevant parts of the Universal Declaration of Human Rights and the Geneva Declaration of Principles follows the former article that propose the participants to counter spam and take “measures undertaken to ensure Internet stability and security, to fight cybercrime and to counter spam” closely.
     
       Third, the issue of anti-spam is not important and prior enough at the same time with its complexity.
     
       After all, the issue of counter-spam is just a small one. Most of countries do not list it as the top priority within the agenda and arrangement of government. The pressure for the government to counter spam and make legislations to control spam is mostly from the interest group of the electronic business and the industry of internet business. For example, one survey demonstrated that only about one of the fourth thought the spam as a problem. The governments have more prior issues listed in the governments’ agenda with limited resources. It is not realistic for governments to invest many resources into the international cooperation for anti-spam and cross-border enforcement.
     
       4. Conclusion: Internet Governance and the Role of International Law
     
       The emergence and application of internet has brought about many international issues and problems. The domestic endeavors just with one country or a few ones cannot solve the problems thoroughly without the effective mechanism of international cooperation and the help of other countries. Thus, the solution of new problems and internet governance is in much need of an effective mechanism of international legal cooperation.
     
       However in reality, there are not a few international law of international cooperation in the new field of cyber space, but following the historical order mostly. For instance, in respect of naming and numbering governance on the internet, the EU once recommended that the ITU should substitute for the Internet Corporation for Assigned Names and Numbers controlled by the U.S.A., and thus the ITU standing for not only the developed countries but also the developing ones would have the universal power to manage the Domain Name System. This proposal was refused by the U.S.A., so the international legal structure of naming and numbering governance on the internet was not substantially changed towards the multilateral level.We can see from the case study of anti-spam that it is a harsh and highly variable in what the role and function of international law in the field of internet governance in the future.

    【作者简介】
    沈朝晖,北京大学法学院金融法中心博士生。
    【注释】
    [1] World Summit on the Information Society, Tunis Agenda for the Information Society, 2005, Online: ITU http://www.itu.int/wsis/docs2/tunis/off/6rev1.html, Last Visited Sep.18, 2008.
    [2] World Summit on the Information Society, World Information Society Report 2007, Chapter 5, at 85, Online: http://www.itu.int/osg/spu/publications/worldinformationsociety/2007/WISR07_full-free.pdf,Last Visited Sep.17, 2008.
    [3] Karla Dane, CONTROLLING SPAM: THE PROSPECT OF LEGISLATIVE SUCCESS, 6 Asper Rev. Int'l Bus. & Trade L. 241, 2006, p.243.
    [4] John W. Daniel, Has Spam been Fried? Why the CAN-SPAM Act of 2003 Can't: Regulation of Unsolicited Commercial Electronic Mail and the CAN-SPAM Act of 2003, 94 Ky. L.J. 363, 2005/2006, p.367
    [5] ITU, World Information Society Report 2007, Chapter 5, at 84, online: <http://www.itu.int/osg/spu/publications/worldinformationsociety/2007/WISR07-chapter5.pdf>, Last Visited Sep.15, 2008.
    [6] Adam Hamel, Will the CAN-SPAM Act of 2003 Finally Put a Lid on Unsolicited E-mail?, 39 New Eng.L. Rev. 961, 2005, p.966.
    [7] John Soma, Patrick Singer and Jeffrey Hurd, SPAM STILL PAYS: THE FAILURE OF THE CAN-SPAM ACT OF 2003 AND PROPOSED LEGAL SOLUTIONS, 45 Harv. J. on Legis. 165, 2008, p.166.
    [8] MessageLabs Intelligence, "A Year of Spamming Dangerously: The Personal Approach to Attacking (2006 Annual Security Report)" (December 2006), online: MessageLabs http://www.messagelabs.com/resources/mlireports?page=2&threat=&month=, Last Visited Sep.19, 2008.
    [9] John Soma, Patrick Singer and Jeffrey Hurd, SPAM STILL PAYS: THE FAILURE OF THE CAN-SPAM ACT OF 2003 AND PROPOSED LEGAL SOLUTIONS, 45 Harv. J. on Legis. 165, 2008, p.166.
    [10] Perry Cheung, A CALL FOR ACTION: THE NEED FOR CANADIAN SPAM LEGISLATION, 7 Asper Rev. Int'l Bus. & Trade L. 227, 2007, pp.231-232.
    [11] Organization for Economic Co-operation and Development, August 12, 2004, Online: OECD
    <http://www.oecd.org/document/7/0,2340,en_2649_22555297_33656711_1_1_1_1,00.html>,Last Visited Sep.13, 2008.
    [12] OECD, Online: http://www.oecd.org/dataoecd/63/28/36494147.pdf, Last Visited Sep. 17, 2008.
    [13] THE SIXTH APEC MINISTERIAL MEETING ON THE TELECOMMUNICATIONS AND INFORMATION INDUSTRY (TELMIN6), 2005, online: http://www.apec.org/apec/ministerial_statements/sectoral_ministerial/telecommunications/2005/annex_e.html, Last Visited Sep.17, 2008.
    [14] World Summit on the Information Society, Declaration of Principles, 2003, at 37, Online: ITU<http://www.itu.int/wsis/docs/geneva/official/dop.html>, Last Visited Sep.18, 2008.
    [15] The other topic is financial mechanism for bridging the digital divide.
    [16] World Summit on the Information Society, Tunis Agenda for the Information Society, 2005, at 41, Online: ITU http://www.itu.int/wsis/docs2/tunis/off/6rev1.html, Last Visited Sep.18, 2008.
    [17] Memorandum of Understanding Between the Korea Information Security Agency and the Australian Communications Authority and the National Office for the Information Economy of Australia Concerning cooperation in the Regulation of Spam (October 20, 2003), Online: ITU<http://www.itu.int/osg/spu/spam/contributions/Attachment%20Memorandum%20of%20Understanding%20Between%20KISA%20ACA%20and%20NOIE.pdf>, Last Visited Sep.10, 2008.
    [18] http://www.ftc.gov/os/2005/02/050224memounderstanding.pdf, Last Visited Sep.18, 2008.
    [19] http://www.ftc.gov/os/2005/01/050127memounderstanding.pdf, Last Visited Sep.18, 2008.
    [20] http://www.londonactionplan.org/,Last Visited Sep.18, 2008.
    [21] http://www.londonactionplan.org/?q=node/1, Last Visited Sep.18, 2008.
    [22] Samuel Boone-Lutz , JUST SAY YES: DRUG TRAFFICKING TREATIES AS A MODEL FOR AN ANTI-SPAM CONVENTION,39 Geo. Wash. Int'l L. Rev. 367, 2007, p.385.
    [23] EU, Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) , Online: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32002L0058:EN:HTML, Last Visited Sep.16, 2008.
    [24] http://www.londonactionplan.org/?q=node/1, Last Visited Sep.18, 2008.(check plz)
    [25] http://www.itu.int/osg/spu/spam/intcoop.html, Last Visited Sep. 18, 2008.
    [26] http://www.itu.int/osg/spu/spam/intcoop.html, Last Visited Sep. 18, 2008.
    [27] Seoul-Melbourne Multilateral Memorandum of Understanding on Cooperation in Countering Spam(Dec.4, 2007), Online: <http://www.acma.gov.au/webwr/_assets/main/lib100234/multilateral_mou_seoul-melbourne_4dec07.pdf>, Last Visited Sep. 13, 2008.
    [28] Memorandum of Understanding On Mutual Enforcement Assistance in Commercial E-mail Matters among the Following Agencies of the United States, the United Kingdom and Australia: the United States Federal Trade Commission, the United Kingdom’s Office of Fair Trading, the United Kingdom’s Information Commissioner, Her Majesty’s Secretary of State For Trade and Industry in the United Kingdom, the Australian Competition and Consumer Commission and the Australian Communications Authority, online: <http://www.acma.gov.au/webwr/consumer_info/spam/spam_mou-aus_uk_usa.pdf >, Last Visited Sep. 13, 2008.
    [29] http://www.londonactionplan.org/?q=node/5, Last Visited Sep.13, 2008.
    [30] Adam Hamel, Will the CAN-SPAM Act of 2003 Finally Put a Lid on Unsolicited E-mail?, 39 New Eng. L. Rev. 961, 2005, p.995.
    [31] http://www.dbcde.gov.au/communications_and_technology/policy_and_legislation/spam/anti-spam_legislation>, Last visited Sep.13, 2008.
    [32] Federal Trade Commission <http://www.ftc.gov/bcp/conline/edcams/spam/rules.htm>, Last Visited Sep.13, 2008.
    [33] http://www.dbcde.gov.au/communications_and_technology/policy_and_legislation/spam/anti-spam_legislation>, Last visited Sep.13, 2008.
    [34] Internet Governance Forum<http://www.intgovforum.org/>,Last visited Sep.13, 2008.
    [35] World Summit on the Information Society, Tunis Agenda for the Information Society, 2005, at 41 and 42, Online: ITU http://www.itu.int/wsis/docs2/tunis/off/6rev1.html, Last Visited Sep.18, 2008.
    [36] Grant A. Yang, CAN-SPAM: A First Step to No-Spam, 4 Chi.-Kent J. Intell. Prop. 1, 2004, p.4.
    [37] Mayer-Schoenberger, Viktor and Malte Ziewitz, Jefferson Rebuffed -- The United States and the Future of Internet Governance, Working Paper RWP06-018, Cambridge, Mass.: John F. Kennedy School of Government, Harvard University, 2006 May.

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