Presentation Nairobi 9 September 2013. Joint workshop on spam(law) of African Telecommunication Union and the Internet Society

Spam legislation in the
Netherlands: the law, results,
approach and lessons learned
Wout de Natris
De Natris Consult
Joint ATU ISOC meeting on combatting spam
Nairobi, Monday 9 September 2013

Introduction
1. Consultant at De Natris Consult
2. Member of London Action Plan
3. Asked to represent the Dutch Ministry of
Economic Affairs (and LAP)
4. Background in spam enforcement, national
and international cooperation spam and
cyber crime at OPTA
2

An overview
1. Dutch anti-spam law 2004
2. Approach by OPTA
3. Results
4. Lessons learned
5. Advanced Cyber DefenceCentre (ACDC)
3

The law 2004, Art. 11.7,1
Telecommunications Act (Tw)
1. The use of automatic calling systems without human
intervention, faxes and electronic messages for
transmitting unrequested communication to subscribers
for commercial, idealistic or charitable purposes will
only be permitted if the sender can demonstrate that the
subscriber concerned has given prior consent for this,
notwithstanding that laid down in paragraph 2.
4

The law 2004, Art. 11.7,2
2. Any party who has received electronic contact information for electronic
messages as part of the sales of his product or service may use this
information for transmitting communication for commercial, idealistic or
charitable purposes in relation to his own similar products or services,
provided that with the obtaining of the contact data the customer is
explicitly given the opportunity to submit an objection in a straightforward
manner and free of charge against the use of his electronic contact
information and, if the customer has not taken up this opportunity, he is
offered the opportunity with each communication transmitted to submit an
objection against the further use of his electronic contact information under
the same conditions. Article 41, paragraph 2, of the Personal Data
Protection Act is applicable mutatis mutandis.
5

The law 2004, Art. 11.7,3
3. The following information should be stated at all times
when using electronic messages for the purposes as
referred to in paragraph 1:
a. the actual identity of the party on whose
behalf the call is being made, and
b. a valid postal address or number to which a
recipient may direct a request to stop such
communications.
6

The law 2004, Art. 11.7,4
4. The use of means other than those referred to in paragraph 1 for
transmitting unrequested communication for commercial, idealistic
or charitable purposes to subscribers is permitted unless the
subscriber concerned has stated that he does not wish to receive
communications by such means and if the subscriber is offered the
opportunity with each communication transmitted to submit an
objection against the further use of his electronic contact
information. In that case, the subscriber will not be charged for the
facility that prevents such unrequested communications being
made to him.
7

The law 2004, Art. 11.8
The application of Article (…) 11.7 shall be limited to
subscribers who are natural persons.
8

The law 2004
 Basically one article, 11.7Tw on spam
 (One article on malware 4.1 BUDE (Decision
Universal Service End users))
 Tw empowers OPTA (Independent Post and
Telecommunications Authority), now ACM
 OPTA already has many enforcement powers
and they all applied to spam!
9

The law specified
 Automated calls, faxes and electronic
messages
 Subscribers
 Without prior consent
 Opt-in regime
 Commercial, idealistic and charitable
 Natural persons
10

The law specified interlude
 There is no definition of spam in the law.
 It’s on unsolicited electronic communications
 Whether by fax, computer, device or phone
 So, much broader than “spam”
11

The law specified, 2
 The exception:
 Existing customer “as part of a sale”
 Similar products
 His own products
 Explicitly asked for consent
 Easy and free to stop the mailing
 Opportunity to object with each mailing
12

 An electronic message must contain:
 A valid postal address or number to which a
recipient may direct a request to stop such
communications
 I.e. it is forbidden to send anonymous
messages and/or use spoofed headers
 Separate violation from just sending
13

The law specified, 3:
beyond 11.7 Tw
 All powers invested in OPTA as post and
telecommunications regulator were in place for
spam fighting
 Administrative coercion to enforce the
obligations
 Allowed to prevent to provide services
 (Periodic penalty) fines
14

 is authorised to seal off business premises
and objects ;
 Authorised to enter business premises;
private homes only with consent
 Seize or copy information
 OPTA is authorised to demand information
from anyone at any time (18.7)
 General Administrative Act Law
 OPTA law: allowed to share data
15

 Conclusions in general:
 Concise
 Effective
 Successful
16

 Conclusions:
 One, comprehensive, article is enough to
start
 Attribute one organisation
 Right to enquire information from every one
 Fine, stop, disrupt and seize where necessary
 Right to visit
 (International) cooperation
17

OPTA’s approach
 Asked for a budget
 € 300.000,= for 2004
 8 people for 50% of their time
 Complaint system opened on day 1
 Two hired, temporary forensic experts
 First forensic gear bought
 Active in international cooperation
 Active in national cooperation
18

Results
 85% of identifiable Dutch language spam was
gone in 6 months
 First fines given after 6 months
 Fraud cases involving Premium Rate Service
Numbers dissappeared within first year
However:
 It did nothing for international spammers
 ISP filters tackle these
 Country cooperation should too
19

Case examples
 Straight commercial e-mails
 Fraud in combination with newspaper print
 SMS spam in combination with PRS numbers
 War drive
 Lottery scam/autodialers
 Fax-to-e-mail spam
 Cross border cases
 Malware spreading
 Hosting of spammers
20

2013, lessons learned
 Costumer/subscriber is not enough
 Include legal persons
 Six months for two cases was not
enough time
 Cases involve fraud and crimes, up to
serious organised crime
 Tw was unclear on attribution
21

2013, lessons learned, 2
 Territoriality is a major problem
 Three major cases rejected in court
 Should ACM be able to deal with the
content of messages?
 Internet fraud and police do not match
 Spam law no longer effective for NL?
22

2013, lessons learned, 3
 But,
 First successes remain
 Dutch spam was halted
 Many frauds were stopped
23

2013 My advice to you
 Start simple and concise
 Work from there
 Celebrate early successes and build
on them
24

2013 My advice to you, 2
 On a model law
 Define what you think spam is
 Define a “spammer”  attribution
 Protect companies as well
 Give all reasonable enforcement
and inquiry powers needed
 Allow cooperation/data
exchange
25

ACDC
 Advanced Cyber Defence Centre
 EU co-funded botnet mitigation
program
 Open to all
 How could your country profit?
 www.botfree.eu
26

Conclusion
 Spam law works
 Law and enforcement tools need to be
in balance
 Effective enforcement does not come at
highest cost
 Find out about cooperation and training
 Be ambitious
27

Art. 4.1 BUDE
Section 4.1 of the Decision universal service
and endusersinterests (Bude) i.e.
implementation of art. 5, section 3 of
Directive 2002/58/EC (Directive on privacy
and electronic communications)
Section 4.1 Bude prohibits storage of
communications without prior consent:
OPTA authorized
28

De Natris Consult
 National and international cooperation
 Reach out officer for ACDC botnet program
 Internet governance
 Blogger
 Today represents the Dutch government
 Ex enforcement officer spam at OPTA (ACM)
29

More information
De Natris Consult
Wout de Natris
denatrisconsult@hotmail.nl
+31 64838 8813
http://woutdenatris.wordpress.com
www.circleid.com
30

Presentation Nairobi 9 September 2013. Joint workshop on spam(law) of African Telecommunication Union and the Internet Society

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