The Information Commissioner's Office (ICO) said this week it lacks the power to fight spam because the government has not had time to discuss implementing effective powers.
According to a senior member of the ICO, the regulator lacks the necessary 'stop now' powers to be effective against spammers because the government has still not timetabled discussion — three years after the ICO first asked for such powers.
The ICO recommended in its annual report of June 2002 that it be given stop-now powers under the Privacy and Electronic Communication Regulations (PECR). These powers were granted under a small percentage of the PECR, but go nowhere near far enough to combat spam, according to the ICO.
Stop-now powers would allow the ICO to prevent suspected spammers from conducting mass emails while it conducted an investigation. At present companies accused of spamming are under no obligation to cease the activity even after receiving notice from the ICO, as they have the right of appeal. The appeal process can easily take more than a year, the ICO says.
At present the powers of the ICO "are effectively nullified until [the case is] heard by the Information Tribunal", Phil Jones, assistant information commissioner, told ZDNet UK. "An important practical point is that the tribunal takes time to be convened — it doesn't sit regularly like a court."
The ICO needs more injunctive powers Jones said. He believes that greater powers to issue injunctions would greatly extend the reach of the ICO.
The government was criticised when it introduced the PECR into law for not giving the ICO stronger powers. In October 2003, the All Party Parliamentary Internet Group said the DTI had erred by not providing the resources and powers needed to enforce the law.
"'Stop now' orders would make a big difference," said David Evans, senior guidance and promotion manager for the ICO, at a Westminster eForum event last week. "Spam moves very quickly, and issuing enforcement orders is time-consuming."
The difficulty encountered by the ICO is that in order to gain more powers the PECR "would need to be discussed in Parliament, or at the very least laid before Parliament" as part of a bill.
"We are always up against the fact that government time is limited," Jones said. "We have wish lists, but lots of other people have wish lists," he added.
"You might argue that spam is an irritant over other things — you can just delete spam. The government might have more pressing priorities," Jones said.
David Evans said last week that his office lacked the jurisdiction, resources and time to deal with the problem of spam.
According to Jean-Jaques Sahel, head of international communications at the DTI, the legal review of the ICO's enforcement powers is still ongoing, and a decision may be taken later this autumn.
"The legislative framework is complex, so it is a long process to give the ICO better enforcement powers," Sahel told ZDNet UK.
There are various deficiencies with the current legislation, according to Evans, including the size of the maximum fine.
"£5,000 for a spammer who is making hundreds of thousands [of pounds] is not much — they can write it off as a loss. There needs to be proportionality in the legislation," Evans said. The fine should be on a sliding scale according to the amount of spam sent, he added.
Talkback
One of the biggest problems is that of jurisdiction, the government has no control over the majority of spam as it originates from outside the UK... often from China or Russia.
For these spammers the only control the government could possibly have would be to block the spam at entry... which then causes enormous problems both technically and morally.
From my (Biased) point of view, the only sure way to stop spam is to use a system such as www.ClearMyMail.com... this gives control of the inbox back to the user.