By Alex Taremwa
Last week, my close friend Pius Opae received an email from one Kasim Mohamed what he thought was a potential investor based in Burkina Faso in West Africa. Mohamed who claimed to be the Bill and Exchange Manager in a Bank of Africa Branch located in Ouagadougou was persuading Pius to allow him transfer sum of U.S10.5 Million united State dollars that apparently had been abandoned by one of the bank’s foreign customers who died along with his entire family in a plane crash.
In the email, Mohamed further stressed that “if you can assist me to stand to claim the fund I agree that 50% of this money will be for you as a foreign partner, in respect to the provision of a foreign account which you are to provide for the transfer of the fund and 50% will be for me and my Family.”
Upon the face of this information, Pius thought it important to bring this to the attention of his friend Obel Oscar. To his surprise, Obel disappointed Pius’s expectations when he told him that he received the same kind “Spam” emails to a maximum of 20 everyday with almost similar content through from seemingly different people but he always ignored them. He advised Pius not to pay attention to such emails and not to submit any information regarding what the emails asked.
Like Obel and Pius, thousands receive such spam emails. Many due to lack of sufficient knowledge are enticed by their content Uganda Communications Commission unveiled a Computer Emergency Response Team (CERT) under the National Information and Technology Authority (NITA-U) that would among monitor and report high-tech crimes including cyber-based terrorism, computer intrusions, online sexual exploitation, and major cyber frauds including SPAM emailing.
Eng. Patrick Mwesigwa, the UCC Director for Technology and Licensing told me in an interview that UCC had also acquired equipment that would be used to monitor such crimes.
“The expectation was that we would reduce the infiltration of malicious content such as malware, viruses and spam, as well as enhance security of online access in the country with special focus on mobile money and Automated Teller Machine (ATM) fraud, that was responsible for the loss of about sh1.5b last year alone.” he said.
What is spam?
I asked two people to give their understanding of “Spam” and I came up with at least two different answers. Nasser Juuko, a computer technician defined spam as emails that are “unsolicited advertisements for products or services” whereas Charlotte Irigoga, a Mass communication graduate from Uganda Christian University defined spam as “An unsolicited e-mail from which the sender is attempting to gain an advantage (commercial or otherwise) and which the recipient neither asked for nor wanted“.
Charlotte’s definition seems more appealing unlike Nasser’s that is rather catchy but somewhat misleading in a sense that Spam can be a lot more than merely an advertisement for products and services. It’s eminently possible to receive spam mail that actually doesn’t advertise either a product or service.
Having defined “spam” and “spamming”, we now need to determine what constitutes a “cybercrime” in order to be able to determine whether or not “spamming” should be considered an offence in law.
Unlike the definition of spam, there appears to be broad consensus that the definition of cybercrime constitutes “a criminal activity committed on the Internet”. Again, for the purpose of the article, the criminal activity element in the definition of cybercrime is going to be important in deciding whether or not spamming constitutes a cybercrime or merely a time massacre.
Why does it even matter anyway? – the case for criminal law legislation
The ethos of any criminal law is that it protect society from dangerous citizens while punishing those who do not conform to that society’s norms and morals. With our penal system already overflowing, and with millions being spent on building new jails, valid questions may well be asked as to exactly why we need to consider having legislation in place that needs to criminalize the nuisance of spam e-mails.
Advocates for including spamming within the realms of criminal law will tell you that not only is it losing business billions a year, but it is also clearly very dangerous. In most cases it also almost certainly involves one of the principal elements of any criminal behaviour, the intent to cause harm.
Consider this this example of spam e-mail that each of us may have experienced: You open up your e-mail in the morning to see an e-mail from someone you do not know asking you to assist them in extraditing some of their money in return for which you’ll be given a large commission. On answering the email you will be asked for a “small” deposit as a sign of good faith. No harm done, right?
Well, yes, there has/will be. This is the famous Nigerian 419 scam, so-called because it reflects the relevant section of the Criminal Code of Nigeria, and victims of this fraud of been defrauded millions.
Only recently a victim of the Nigerian 419 scam was defrauded $2.1 million. One may argue that the person was greedy and knew they were likely breaking the law themselves.
However, the unsolicited spam e-mail was sent with one intention and one intention only, to defraud the recipient of the email out of their savings. Thus it is a criminal act and there should be criminal law to reflect this.
According to Isaac Singura Kalekoona, a lawyer operating his own firm, any discussion about the Internet, spamming and free speech will centre on two cornerstone issues: (a) what is the content of the spam email; and (b) what is the forum by which the spam email has been disseminated.
Most of us would agree would agree that the right to free speech is not an absolute right per se. Obviously there must be certain limitation on our right to free speech. For example, any spam email that contains content which is clearly bigoted, sexist, racist or inflammatory would constitute a crime nearly every jurisdictions criminal law system, and this should not be any different just because we are on the Internet.
These are fundamental ethos that reflect mankind’s moral code and thus should be regulated.
“Should you send a spam e-mail that contains material which is clearly bigoted, sexist, racist or inflammatory then such spam e-mail should be a breach of criminal law. Here you would even find support among those who argue that criminalizing spam e-mails is an infringement of our right to free speech”, he said.
Unfortunately, however, ninety per cent of all spam e-mails contain none of these; thus no crime, per se, is being committed. After all, would an e-mail from a government agency warning of an impending disaster to unregistered recipients constitute a spam e-mail or a useful dissemination of information?
Throughout this article we have tried to evaluate whether or not the act of spam emailing should constitute an offence in criminal law or whether it should merely be an act of nuisance. Whenever we discuss this subject, important, we need to consider two important issues: (a) should the act of nuisance constitute a criminal act? And (b), should we legislate against the last frontier of man, the Internet?
Since the dawn of time man has, in one form or another, legislated against acts of nuisance. Thus, clearly the answer to (a) is that “yes” we should be legislating, in criminal law, the offence of spamming; especially so where such spam emailing shows intent.
Regardless of this, the answer to (b) is far more complex, because, as with space, the Internet is without boundaries. And herein lies the crux of attempting to make spam emailing a crime in criminal law, if we wish to do this we need to ensure the act is considered an act in criminal law globally, not locally.
And before we can do any of that, we still need to decide how we define what spam emailing is.