Another day, another article slamming CASL. Yesterday it was called “a bad law” in an FP Comment. Today’s article titled CASL: A high-level look at the looming disaster called CASL “draconian” and stated “It’s hard to believe that antispam legislation can be this disastrous, but it’s true.” Well these authors can join an esteemed club. CASL has been ridiculed by the press which has called it, among other things, a Monty-Python-esque farce and Spamaflop, deeply stupid, and a sledgehammer that is ludicrous regulatory overkill. Its all that and more including almost certainly being unconstitutional.
Archive for the ‘CASL’ category
CASL is a bad law and cannot reasonably be justified on any basis. On that issue, I recommend you read a feature article in the Financial Post today The great anti-spam cash grab. Here are a few choice extracts from the article.
CASL is a bad law. It offers no benefit to consumers, yet imposes red tape and additional costs on businesses. Worse still, it reduces competition, actually harming consumers. Finally, it is inconsistent with Canada’s free market economy and very likely unconstitutional…
CASL cannot work. It is incapable of stopping most spam…
Meanwhile, CASL imposes large costs on businesses…
The CRTC announced yesterday that it bagged another CASL pelt – this time Rogers Media. The company agreed to an undertaking with the CRTC and to pay $200,000 to avoid expensive enforcement proceedings.
Rogers Media allegedly sent commercial emails (CEMs) containing an unsubscribe mechanism that did not function properly or which could not be readily performed by the recipient. In some instances, the electronic address used to unsubscribe was allegedly not valid for the required minimum of 60 days following the sent message. Rogers Media also allegedly failed to honour, within 10 business days, requests from some recipients to unsubscribe from receiving future commercial emails.
The “anti-spam” portion of Canada’s anti-spam/spyware law (CASL) came into on July 1, 2014. The “malware/spyware” computer program provisions come into force on January 15, 2015.
Most organizations are having very difficult times adapting to CASL’s confusing and prescriptive rules. According to a recent mini-survey conducted by the Canadian Chamber of Commerce of over 160 of its members, from responses to questions answered over 90% of Canadian organizations believe that CASL should be scrapped, amended, or at least be subject to a Parliamentary review before it becomes law. Over 80% believe it will not be effective against the most harmful sources of spam. 63% believe that it will make business more difficult for them. Most believe CASL’s consent, disclosure and unsubscribe requirements are disproportionate and unreasonable. 56% believe CASL will impede the creation of a business environment driven by entrepreneurs that encourages jobs, growth and long term prosperity for Canadians.
The computer program provisions in Canada’s anti-spam law (CASL) are very hard to apply in practice. One of the most difficult interpretive challenges involves determining what the phrase “install or cause to be installed” means. CASL only applies where a person installs or causes to be installed a program on someone else’s computer. The CRTC released a Guideline that attempts to clarify what CASL means by that phrase. In information sessions last week to IT.Can and ITAC members, Dana-Lynn Wood and Lynne Perrault of the CRTC attempted to provide even further guidance on this issue. However, after fielding a series of questions on the issue, they agreed the issue was still unclear and that it was necessary for them to give further consideration to the issue.
I have argued many times on this blog that Canada’s anti-spam law (CASL) would not survive a Charter challenge. It’s “ban all” approach to regulating commercial speech, with limited exceptions, cannot be justified. Professor Emir Crowne, Associate Professor, University of Windsor, Faculty of Law, just published a paper together with Stephanie Provato agreeing with this opinion, Canada’s Anti-Spam Legislation: A Constitutional Analysis, 31 J. Marshall J. Info. Tech. & Privacy L. 1.
The abstract of the article says the following:
This week has been eventful on the CASL front with the CRTC providing guidance on how it is likely to interpret CASL’s computer program provisions. Monday evening the CRTC published a new guideline on the interpretation of CASL. This was followed by a presentation given to IT.Can members by Andy Kaplan Myrth of Industry Canada and Dana-Lynn Wood and Lynne Perrault of the CRTC. The presentation was a follow-up to an earlier IT.Can meeting where the CRTC asked for and received a list of questions for which guidance is being sought by the public. This information session was part of a cross country tour by the CRTC to provide information to the public about CASL.
With the computer program sections of Canada’s anti-spam/anti-malware law (CASL) coming into force in January 2015, the CRTC has now started reaching out to the public for questions they want guidance on in FAQs or bulletins. I attended such a session last week (on September 9, 2014) at an IT.CAN Public Affairs Forum Roundtable. The attendees were Dana-Lynn Wood (Senior Enforcement Officer, Electronic Commerce Enforcement, CRTC) Kelly-Anne Smith (Legal Counsel, Legal Sector CRTC), and Andre Leduc (Manager of the National Anti-spam Coordinating Body, Industry Canada).
Michael Geist loves Canada’s anti-spam law (CASL). He was one of the first witnesses called by the Government to support it (then Bill C-27) when it came before the Standing Committee on Industry, Science and Technology. He told the Committee to resist attempts to change it. He later urged Minister Moore not to listen to the tsunami from across all sectors of Canadian society to fix CASL calling the criticisms Festivus grievances, Now that CASL is law and the public is ridiculing it calling it, among other things, a Monty-Python-esque farce and Spamaflop, deeply stupid, and a sledgehammer that is ludicrous regulatory overkill, he once again tries to defend it. If anyone could defend CASL, it would be Michael Geist. However, CASL is indefensible and his attempts to defend it clearly show there is no policy basis on which it can be justified and that It should be scrapped or amended.