Administrative fines better than criminal prosecution to combat spammers: Industry Canada ADM

Canada’s top anti-spam bureaucrat says a Senate bill proposing to give ISPs the power to cut off spammers is on the right track, but it needs proper enforcement mechanisms to be effective. Helen McDonald, assistant deputy minister for spectrum, information technologies and telecommunications at Industry Canada, appeared before the Standing Senate Committee on Transport and Communications last week to discuss the similarities and differences between the Senate Bill S-220 and the government’s own Electronic Commerce Protection Act (ECPA) C-27 that was tabled in the House of Commons on April 24. Liberal Senator Yoine Goldstein spoke to the committee about S-220 at the end of last month. McDonald told committee members that pursuing spammers under the Criminal Code as is contemplated by S-220 won’t work. “We believe this type of private right of action falls outside the rules of law as private rights of action need to be tied to administrative penalties,” she explained. “ECPA would provide for a viable private right of action under an administrative regime and would allow businesses, network providers and consumers to take civil action against anyone who violates the act.” Bill C-27 proposes an administrative approach under which compliance would be encouraged through administrative monetary penalties. Fines would range from $1 million for individuals to $10 million for organizations. Under questioning, the Industry Canada ADM said using an administrative regime rather than a criminal approach would also make it easier to cooperate with other countries in combating spam. If it was up to law enforcement, McDonald suggested it would be difficult for the police to set up cooperation arrangements. “It is easier for Competition Bureau to set up an arrangement with its complementary agency in another country, so we think that will also be more effective,” she said. Goldstein had his chance to question McDonald about some aspects of C-27 during the session. He asked why a criminal code approach to spam enforcement wouldn’t work and why a private right of action had to be tied to an administrative enforcement regime. “If you have declared something to be a crime, then you do not often couple that with a private right of action,” McDonald responded. “We are trying to couple the actions by the regulatory agencies with a private right of action to allow, as the US has found, both of these approaches to take place.” By opting for an administrative type of regime, more duties will be passed on to the CRTC, the Competition Bureau and the Office of the Privacy Commissioner, raising the issue of adequate resources at each of those agencies. McDonald acknowledged that the ability of these organizations to exercise their new responsibilities would hinge on the allocation of additional financial commitments from the federal government. McDonald praised Senator Goldstein for his work on the anti-spam filing, noting that the government has listened and based its own bill largely on this Senate bill and two previous ones. “Combining the strengths of each, it is comprehensive yet broad in its approach, swift in its application, strong yet fair in terms of penalties and multi faceted in terms of an enforcement approach. It will thus ensure a safer and more secure online environment for the conduct of e commerce,” she said. Key provisions of an administrative regime under C-27 The CRTC would get new powers to pursue violators who send spam and access computers and networks without authorization. Spam, malware and other network-based conduct would fall under the CRTC’s jurisdiction. The Competition Bureau would use existing, and new powers under Bill C 10, to pursue violators of provisions relating to deceptive representations in online commerce. Counterfeit websites and making false and misleading representations online would be addressed by the Competition Bureau. The Privacy Commissioner would use existing powers under the Personal Information Protection and Electronic Documents Act (PIPEDA) to enforce new violations regarding the electronic compiling of email addresses. Address harvesting, dictionary attacks and unauthorized compiling of personal information without consent would be covered by the Privacy Commissioner.

Administrative fines better than criminal prosecution to combat spammers: Industry Canada ADM

News | 05/11/2009 5:54 pm EDT

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