Canadian privacy, criminal laws already protect Canadians from spam: Geist

Canada has the legal tools necessary to combat spam, although the government has not used the law against spammers yet and has left the battle to the private sector,University of Ottawa law professor Michael Geist told the New Developments in Communications Law and Policy conference held in Ottawa April 23-24. "For the moment," he said, "we have the tools in existing laws like privacy, deceptive practices and the Criminal Code." Stressing the importance of being "aggressive in what is allowed" Suzanne Morin, a lawyer for Bell Canada and a commentator on Geist’s presentation, agreed that there is great potential in Canadian law to fight spam. While also talking about the merits of creating specific anti-spam laws, Morin said the government should first enforce relevant existing laws and "tweak them as necessary." Although Geist also noted that anti-spam legislation might be necessary in the future, he said that currently the government has many legal tools it could apply against spammers. "The Canadian legal framework features many of the tools needed to launch anti-spam legal actions, despite the absence of specific anti-spam legislation. Rather, the challenge rests with our willingness to enforce the existing laws by engaging in aggressive anti-spam national enforcement as well as cooperating with global anti-spam enforcement initiatives," he wrote in the paper that accompanied his presentation. The main existing laws that Geist applied to spammers are privacy laws, deceptive practices laws, various sections of the criminal code and section 41 of the Telecommunications Act. In privacy law, he said that some email addresses, if they can be used to identify an individual person, could fall under the Personal Information Protection and Electronic Documents Act. This Act could be used for a variety of legal purposes like preventing spammers from collecting email addresses without the holder’s consent, and requiring in some cases that spammers obtain an opt-in from individuals before sending them email. In practice this means that through the Privacy Commissioner of Canada an individual could launch a complaint against a spammer, or the commissioner could investigate and launch legal action against a Canadian spamming organization, according to Geist. The deceptive practice laws in the Competition Act say that a person cannot for the sake of business interests make "a representation to the public that is false or misleading in a material respect." These types of breaches are usually punished with steep fines. Geist said that because spam can have false headers and sometimes even contain false information, spammers could be brought to court under this Act as well. Similarly, certain sections of the Criminal Code dealing with fraud and false messages could also apply to spam with misleading information. Section 41 of the Telecommunications Act gives the Canadian Radio-television and Telecommunications Commission (CRTC) the power to regulate unsolicited telecommunications messages on Canadian carriers. Although the Act was meant to control telemarketing, Geist believes it could be extended to cover spammers as well. Despite these laws, according to Geist and the other speakers, the Canadian government has done little in the face of a growing spam problem. Two bills have also been presented in Parliament. While there seems to be no progress on either bill, Geist and Morin both said that new legislation is not necessary to fight spam at this time. They said the government simply needs to enforce laws that already exist.While Michael Eisen, executive director at Microsoft Canada, the other commentator on Geist’s paper, agreed that there is a need for increased government support, he also emphasized the ways that new technologies can help deal with spam. Explaining the various filters and techniques that Microsoft has developed to help block spam, he said that government, industry and new anti-spam technologies should all play a role in controlling spam. "(Microsoft) is more optimistic to the way new technological tools will help the spam problem," he said. What is the scope of the spam problem? According to anti-spam service provider Brightmail, while 8% of U.S. email traffic in 2001 was spam, it accounted for 60% of all emails by January 2004. Many Canadians also believe that most spam originates in other countries, said Geist. While the U.S. is by far the largest producer of spam, according to the Spamhaus Register of Known Spam Organizations, Canada placed second on its list of the top 200 spam organizations worldwide. One panelist outlined reasons for taking legal measures against spam that reach beyond the inconvenience of unwanted mail. Quoting the example of Japan, Morin said that spam can become a far more serious social issue. Spammers in Japan have been linked with aiding child pornography, taking advantage of seniors and facilitating group suicides. Communication is the cornerstone of the spam issue for both Geist and Eisen, who fear that the overwhelming quantity of spam will discourage people from using e-mail.Placing spam in context of communication technologies from the beginning, Geist asked in the opening lines of his speech, "How can we save email?" Although the answer to that question involves many legal and enforcement issues, he summarized, "At the end of the day (spam) is deception and fraud . . . (that leads to) lost confidence in using email as a tool of communication." The panel itself was also an important event, according to Morin, who said that it was the first time Canadians had met to discuss what should be done about spam in Canada. Closing his speech by comparing the fight against spam with a scene in the movie The Untouchables when a federal agent realized it was well known where notorious mafia boss Al Capone kept his bootlegged alcohol, Geist said, "Everyone knows where the booze is. It’s a matter of what we are prepared to do about it."

Canadian privacy, criminal laws already protect Canadians from spam: Geist

News | April 28, 2004

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