Industry Committee on June 11th, 2009

[Kevin Sorenson, Conservative, Crowfoot, AB]

Well, let's put it a different way, then. If I'm selling something, not as my business, or not as how I would earn my livelihood, but just selling some used product--a boat--and a buddy said the same thing Mr. Vincent said to a friend, and I then sent him an e-mail, does the legislation in any way prevent me from doing that?

[Prof. Michael Geist]

There is an exception in here as well for that sort of consumer-to-consumer personal correspondence. The issue is whether this now rises up to the level of clear commercial activity. I think there's some question as to whether or not it rises to that level. There is also, though, realistically, the question as to whether we are talking about any kind of real risk. I mean, is your buddy going to file an anti-spam complaint against you for telling him that your boat's for sale?

[Kevin Sorenson, Conservative, Crowfoot, AB]

No, no, but my question is about the guy who's sending the e-mail. Is he going to feel that he can't even do that, that he had better pick up the phone and phone the guy, because who knows how many other calls this guy has had? Is there any way that what he is doing is contravening what this bill sets out?

[Prof. Michael Geist]

I don't think there are many individuals who are going to look at that and think twice before they send out a message to their friend saying--

[Kevin Sorenson, Conservative, Crowfoot, AB]

That's it. I mean, it's clearly not going to take this guy who is.... In criminal law, you talk about mens rea, where it's a criminal intent. Obviously, the guy is trying to do a favour and has no intentions of breaking this law.

[Prof. Michael Geist]

Let me just give you the specific provision, because I think it will cover most of what you're talking about. It's paragraph 6(5)(a): “This section does not apply to a commercial electronic message...that is sent by an individual to another individual with whom they have a personal or family relationship...”. So if you're talking about anyone with whom.... That's as defined by the regulations, so it can be a commercial message, but so long as you have a personal relationship with that person, it's outside the--

[Kevin Sorenson, Conservative, Crowfoot, AB]

In other words, there are proper safeguards in this legislation to prevent that type of thing from happening.

I just have one other question, and I don't know if you guys are the ones to answer it or not.

A number of times we've referenced Utah. In the United States, is it state law? I know that here, all communications fall under federal law. Is it different in the United States? Does each state have different laws? Do some states have a spam law and other states not?

[Dennis Dayman]

There's a patchwork of laws. Typically, in the U.S. we've always kind of broken down laws almost by industry type, such as in the case of the telecommunications act and the health act. It's a patchwork either by federal law or by state law. The Utah one that keeps popping up is a state law. There are privacy issues as well. A lot of states have different privacy legislation as well to control exactly what you can do with that. Yes, there is a breakdown by state.

[Prof. Michael Geist]

To supplement that, it's essentially shared responsibility. You can get federal law and state law. Under pre-emption rules in the United States, if the federal law wades into an area, it will pre-empt the state law, which, as we mentioned, is what happened when they brought in CAN-SPAM. They had a multiplicity of different standards, and CAN-SPAM was used as an attempt to try to create a uniform standard.

Subsequent to that, we've now heard a number of states say that CAN-SPAM doesn't do a good enough job. We're starting to see state-based anti-spyware legislation and even state-based anti-spam legislation that has attempted to address what they saw as holes within CAN-SPAM. Sometimes there's been litigation as to whether or not it is a valid state law in light of the fact that there is a federal statute with CAN-SPAM. Thankfully, we don't have to deal with quite that complexity.

[Kevin Sorenson, Conservative, Crowfoot, AB]

In the United States there may be many different types. Some states may have an effective law, in other states it's not as effective, and some states may not have any.

[Dennis Dayman]

That's correct.

[Kevin Sorenson, Conservative, Crowfoot, AB]

This concept of a federal law--one suiting the whole country--is very positive, in your opinion.

[Dennis Dayman]

Yes.

[The Chair, Conservative, Michael Chong]

Thank you, Mr. Sorenson.

Mr. Lake.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

On the consent side of things, I'm thinking about the realtor example, because I think that is a relative example and may be a legitimate concern for some folks.

To clarify--and maybe you can give me your understanding of this--if a realtor asks a friend for a list of ten e-mail addresses of that guy's friends that he can e-mail looking for a potential client, sending out an e-mail like that would be restricted under the legislation.

If two friends are talking, and one of them says they're in the market for a house and is looking for a realtor, and the second friend passes that e-mail address on to the realtor with the consent of their friend after asking if it's all right to pass it on and have the realtor send an e-mail or phone them, then that would be exempt under the legislation. That would be expressed consent. Even though it's not directly expressed to the realtor, it's still expressed consent via the friend.

[Prof. Michael Geist]

I think the realtor would be comfortable, assuming they had asked the person if they had permission to send it on to the friend.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

It's important to note that's not dissimilar to how I think most of us would probably handle that. It happened to me the other day. A friend sent me an e-mail asking if, since I knew this other guy, I could send his e-mail address. I didn't just automatically send his e-mail address. I sent an e-mail to my other friend and asked if he minded if I sent his e-mail address to this friend. It was about business. He wanted to do some business, but they didn't know each other directly. I think that's sort of a common-sense way of doing things. He said yes, and I fired off the e-mail, and they made contact. I think it's just sort of common sense in terms of the way we deal with it.

I have one last question for Dennis and Matthew. You made your statement, and we talked throughout very positively about the legislation. Are there any concerns, major or minor, that you have with the legislation? I don't think I've heard any yet.

[Matthew Vernhout]

We've had a couple concerns, and we've sent them in in separate documentation.

The first one is about forwarding to a friend. It's similar to the idea that you were just talking about in regard to introducing a friend to a product or to another individual. The way the “forward to a friend” traditionally works is that if I'm on a website, and I like the news article that Mr. Geist wrote, and I want to send it to my privacy person at work, then I enter his e-mail address and name on the form, and I type, “you should read this article” and I hit “send”. There's no clarification concerning who the original sender is because the message didn't originate from my local computer. It originated from another server, which is managed by a website.

I think the idea behind this is that if the message is delivered and the address is not kept or recorded--it's just used to deliver a link that says go read this article with my message included--then it's not really clearly defined who the sender of the message is. I initiated the message, but it was delivered through another network. That's something we have mentioned that should potentially be clarified in the act.

There's also the identification of a sender. What's clarified as an identification? Is it the logo in a message? Because if it's an image, a lot of e-mail clients block images. That's something that needs to be looked at. You can't spam-address stuff by using a postal address, by putting a clear text postal address in a message.

Regarding the idea behind anti-spam filters, there was wording around changing the content of the message during transmission. A lot of spam filters will put headers in that say “we suspect this is spam”. Those types of things need to be clarified as well.

[The Chair, Conservative, Michael Chong]

Thank you very much, Mr. Vernhout, Mr. Dayman, and Dr. Geist. Thank you very much for your testimony.

This meeting is adjourned.