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.
Archive for the ‘CASL’ category
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.
The Government just revised the fightspam.ca website. The site now has more information about CASL and how it will be enforced. In addition, and likely because of the heavy criticisms of CASL, the site purports to clarify some “myths” about CASL.
The new website does give facts about CASL, although they are incomplete. Some of the so called myths about CASL are more fact than myths. For example:
The first week under Canada’s anti-spam legislation (CASL) is nearly over. The media and blogosphere gave CASL a lot of coverage. Much of it was negative. Here is a summary of some of the highlights.
I was interviewed on The Current, Metro Morning, and CJAD Radio. The Current and Metro Morning radio shows also featured individuals who voiced concerns about CASL’s impacts on small businesses. Michael Geist was also interviewed on The Current. He defended CASL claiming it was not onerous for small businesses who were already collecting express consents under PIPEDA. Peter Nowak also defended CASL in a post in Canadian Business Why Canada’s Anti-Spam Law won’t harm small businesses.
CASL’s rules apply to any person that sends commercial electronic messages to members of the public including charities and other not for profit organizations. The indiscriminate targeting of everyone from real spam culprits to genuine commercial communications is one of the reasons that Terrance Corcoran from the Financial Post recently called Canada’s new anti-spam law “a Monty-Python-esque farce”.
CASL, in its present form, should never have targeted charities or not for profit organizations. According to some, CASL punishes charities for no good reason.
Check out Terrence Corcoran’s opinion article on CASL in this morning’s Financial Post: Spamaflop! Why Ottawa’s spam ban law is absurd and should be overturned. Here are a few choice quotes:
“I could say that Canada’s new anti-spam law is both horrifying and stupid, but Mark Joseph Stern, writing in Slate Magazine, already said that the other day. One could also call it absurd, interventionist, controlling, costly, offense and an all-too-typical Tory mega-solution to a mostly non-problem.”
The “anti-spam” portion of Canada’s anti-spam/spyware law (CASL) comes into effect on July 1, 2014. 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.