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. [28]
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.
