[IP] Canadian Task Force on Spam Releases Report
Begin forwarded message:
From: Michael Geist <mgeist@xxxxxxxxx>
Date: May 23, 2005 8:04:22 AM EDT
To: dave@xxxxxxxxxx
Subject: Canadian Task Force on Spam Releases Report
Dave,
I don't recall seeing a posting on last week's release of the
Canadian National Task Force on Spam's Final Report. The report
calls for the establishment of tough new anti-spam law that features
an opt-in regime by making failure to obtain appropriate consents
before sending commercial email an offence, thereby taking the
pressure off the current national privacy statute, which is ill-
equipped to deal with serious spam issues.
My weekly column provides a further review (I was a member of the
task force) including recommendations for additional provisions
creating a private right of action to facilitate lawsuits as well as
provisions targeting false or misleading headers, dictionary attacks,
and the harvesting of email addresses. The Task Force also
recommends creating a central co-ordinating body to foster greater
collaboration between enforcement agencies and to provide oversight
to ensure that anti-spam actions receive appropriate resources and
prioritization.
The final report is at
http://e-com.ic.gc.ca/epic/internet/inecic-ceac.nsf/en/h_gv00317e.html
Freely available hyperlinked version of column (posted below) at
http://www.michaelgeist.ca/resc/html_bkup/may232005.html
Toronto Star version at
http://geistspamreport.notlong.com
MG
REPORT A ROADMAP TO CANNING SPAM IN CANADA
Lost amidst the high drama on Parliament Hill last week was the
release of Stopping Spam, the National Task Force on Spam's final
report. Established in May 2004 by the Minister of Industry, the
Task Force was comprised of Internet service providers (ISPs),
marketers, consumer groups, and academic experts (I was a member of
the Task Force and served as co-chair of its Law and Enforcement
Working Group).
The Task Force provided Industry Minister David Emerson with a 60-
page report featuring 22 recommendations, including a call for a new
spam-specific law and a central co-ordinating body to improve
enforcement. Its work was guided by three key principles: (i) that
no country can single handedly eliminate spam but that each must do
its part to curtail the spam that originates from within its borders;
(ii) that any spam solution must include effective laws,
technological solutions, as well as better business and consumer
practices; and (iii)) that new laws should only be pursued if the
current Canadian legal framework is ineffective.
The magnitude of the Canadian spam problem quickly became apparent.
We heard from ISPs burdened by enormous costs trying to block
billions of spam messages each day, from marketers discouraged that
the promise of email as an effective marketing channel was rapidly
eroding, and from individual Canadians struggling under a daily
deluge of junk email. Moreover, we learned that Canada is a leading
source of spam, typically ranked among the top six sources
worldwide. Given that situation, all agreed that Canada must take
steps to clean up its own spam problem, while working with other
countries on international solutions.
Technological and business solutions will clearly play critical roles
in combating spam. Working with the Task Force, the ISP community
developed a series of best practices that I believe should be
considered mandatory by Canadian ISPs since they provide a framework
for dramatically reducing the amount of spam that leaves their
networks. Similarly, individual Canadians should take note of the
costs of responding to spam messages and be guided by the maxim found
in a Task Force education campaign of "don't try, don't buy, and
don't reply."
Alongside technological and business solutions, Canada also needs an
effective anti-spam legal framework. With national privacy
legislation, the Competition Act, and the Criminal Code, many of the
provisions contained in other countries' anti-spam statutes are
admittedly already part of Canadian law. The challenge was therefore
to test the effectiveness of current Canadian law in order to
identify any gaps or shortcomings.
Together with officials from the Competition Bureau, the Privacy
Commissioner of Canada, and law enforcement, the Task Force targeted
the provisions that might be used to launch cases against Canadian
spamming activity. The Competition Bureau completed its case in
December, demonstrating that the law could be used to counter spam
containing false claims. That same month, the Privacy Commissioner
released her first spam decision, responding with a well-founded
finding to a complaint that I launched against the Canadian Football
League's Ottawa Renegades. Despite many meetings, the law
enforcement initiatives languished, however, leading to a Task Force
conclusion that little progress was made due to a lack of
prioritization and jurisdiction questions.
The test cases demonstrated that while existing laws address specific
aspects of spam, they are not sufficient to achieve the overall goal
of deterring spammers in Canada. The report therefore recommends
legislative and enforcement changes to remedy the problem.
From a legislative perspective, we recommend that the federal
government enact a spam-specific law. That law should establish an
opt-in regime by making failure to obtain appropriate consents before
sending commercial email an offence. Such an approach would
distinguish the Canadian law from its U.S. counterpart, which
contains only an opt-out requirement. Moreover, an opt-in system in a
spam specific law will take the pressure off the current national
privacy statute, which is ill-equipped to deal with serious spam
issues since it does not provide the Privacy Commissioner with the
ability to levy tough penalties or exercise order making powers.
The task force identified additional gaps in the current statutory
framework. New provisions are needed to address issues such as false
or misleading headers, dictionary attacks, and the harvesting of
email addresses. Underlying all of these provisions would be tough
penalties, modeled after the Australian system. Backed by a statute
that features potential multi-million dollar penalties, Australia has
enjoyed some success in ridding itself of local spammers.
In order to engage the private sector in the legal fight against
spam, the Task Force is also calling for the establishment of a
private right of action that could facilitate lawsuits against
spammers. This would make it far easier for all Canadians,
particularly ISPs, to use national law for spam suits, rather than
relying on U.S. law, as has been the recent practice.
While a better legislative framework is essential, a more proactive
enforcement system is also needed. The Task Force recommends
creating a central co-ordinating body to foster greater collaboration
between enforcement agencies and to provide oversight to ensure that
anti-spam actions receive appropriate resources and prioritization.
The central co-ordinating body would also keep private sector parties
accountable by issuing regular public reports and would assist the
public by establishing education programs and a central complaints
mechanism.
The Task Force report provides a roadmap to creating a spam-specific
statute and enforcement framework that would be far more robust than
our current system. Implementing new legislation may be difficult in
the current political environment, but given the rising costs
associated with spam, failure to act is not an option.
--
**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Law School, Common Law Section
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319 Fax: 613-562-5124
mgeist@xxxxxxxxx http://www.michaelgeist.ca
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