Industry Committee on June 16th, 2009

[Barry Sookman]

In his testimony--and I think I did see the blog you're referring to--Professor Geist indicated there was no distinction between the ECPA and the Australian legislation, since they both used the same term.

Well, the fact is they use the same defined term in name, but the definitions are actually different. So while they use the same term, in Australia they define it as a specific series of acts that are direct marketing, whereas the Canadian bill, which would include a long list of items--very similar to Australia's--adds this general principle that it could incorporate anything broader.

So they're the same in name but not in effect.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Okay.

The next one is: does the ECPA extend its jurisdictional reach too far beyond Canada's borders? I asked this question. His answer was: “The law requires a connection to Canada to apply. This is consistent with jurisdictional law more generally that mandates a real and substantial connection.”

What would be your comment on that?

[Barry Sookman]

I know a little bit about the real and substantial connection test because I argued the leading case in the Supreme Court of Canada that applied it in the Internet context, and that test has absolutely nothing to do with the interpretation of the territorial scope. The fact is this bill includes routing as being an element that would make foreign direct communications--that is, from a foreigner to a foreigner, an American to an American, not accessed by a Canadian, not sent by a Canadian to the U.S.--subject to the act.

So I think the issue really is the principle's international comity. Should we be extending our legislation to cover matters that really and essentially are only communications between foreigners? To do so would actually have significant detrimental effects on Canadian companies, because there are Canadian companies that actually route, as part of their service, all messages through their relays, which are in Canada, and that would mean that their foreign customers would have problems using certain Canadian companies, and the Canadian companies would have to then move their relays outside of Canada to enable foreigners to use their service.

So I disagree with that comment.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

I asked another one about e-mail harvesting provisions, specifically whether law enforcement would be impeded due to the restrictions on e-mail harvesting. His answer was: “Unlikely. While the ECPA alters PIPEDA to address email harvesting, the numerous police powers to access far more than just an email address remain unchanged.”

[Barry Sookman]

Again, I would disagree with that assertion.

First, PIPEDA set out generally applicable principles that permitted the collection, use, and disclosure of information for the purpose of enforcing Canadian law, and very specifically enabled disclosures for the purposes of complying with subpoenas, warrants, and court orders. Those are the exceptions that courts look to when making orders. Should the law be changed and should these generally applicable exceptions not apply, it could well be argued that law enforcement would not be entitled to the information, because it would be protected by the act.

I have heard concerns from the enforcement community about this, and I think they are extremely concerned that there was the potential here to impede law enforcement on the Internet. Private individuals are concerned as well.

[The Chair, Conservative, Michael Chong]

Thank you very much, Mr. Garneau, for those questions.

Mr. Sookman, thank you.

Mr. Wallace.

[Mike Wallace, Conservative, Burlington, ON]

Thank you very much, Mr. Chair, and thank you to our guests for coming this afternoon.

Mr. Sookman, I'd like to follow up with you, just for my own education. Are you representing the Canadian Chamber of Commerce today?

[Barry Sookman]

Yes, I am.

[Mike Wallace, Conservative, Burlington, ON]

So you're a member of the chamber? They're not your client, as a lawyer?

[Barry Sookman]

McCarthy Tétrault is a member of the chamber.

[Mike Wallace, Conservative, Burlington, ON]

Has the chamber put together a review committee of some sort to look at spam or these kinds of things? People are looking to you as an expert, have actually called you an expert. I want to know about your background and why that is.

[Barry Sookman]

Okay.

Sue.

[Susanna Cluff-Clyburne]

I was going to say that Mr. Sookman sits on our e-com telecom committee as a member, and he is participating with us today because he is an expert on--

[Mike Wallace, Conservative, Burlington, ON]

So he's representing the chamber; whatever he says is the chamber's position. Okay.

[Barry Sookman]

When the bill came out I also did a memo for the chamber, summarizing its effects on the members.

[Mike Wallace, Conservative, Burlington, ON]

It was just because I saw the name of the law firm and I didn't know if you were here with them or what. I might have missed that at the beginning, I'm sorry.

I think we heard from virtually everybody that, in principle, you agree with the bill. Is that an accurate statement or not, or am I misinterpreting what people said? In principle, you agree with the bill. A nod of heads is fine with me, yes or no.

There was a discussion about further discussion. My understanding is that this discussion has been going on since at least 2005, if not before, so in my view I think it's time we moved on.

I actually am a little confused about the discussion between you, Mr. Sookman, and Mr. Courtois. I'm of the view that the broader net, as people like to call it here, is the appropriate way, and that we do make some clarifications on implied consent, and so on and so forth, to be able to capture that. I'm not sure if you agree with that approach, Mr. Sookman, or if you would like to see it much narrower and go in the other direction. Am I reading that testimony accurately or not?

[Barry Sookman]

I'm saying two things. The first thing is that the definition itself of what's caught could be narrowed, as it is in every other jurisdiction that deals with this, so as not to inadvertently catch a wide net. The second thing is to expand the implied consent as well.

[Mike Wallace, Conservative, Burlington, ON]

Right. Okay.

Unfortunately, I was away last Thursday when we dealt with this bill, but in the previous meeting I was here as a member of the industry committee. I asked specifically the minister and his officials about a five-year review. I remember you had talked about whether we should do this and that this might happen. Some change might happen; it might be an issue. The word “might” comes up quite a bit. In my view--I've been here only three years, and I was on the PIPEDA review--for us to have a bill, we would be here forever trying to get it absolutely specific and nothing would happen, not just here in this committee but in government in general.

My suggestion was that we would have a five-year review so that we put this in place, we get this passed, we get it operating, and we get the regulations in place, which obviously takes some time afterwards. In the bill right now there's no such thing as a five-year review. I would like your opinion about whether an addition of a five-year review would be worth it or not to this particular piece of legislation.

I'll take anybody's answer.

[Bernard Courtois]

Yes, I think a five-year review will be useful. These are things that change significantly. I would say, however, that you have to put flexibility in the bill right now, because there can be a lot of harm caused on one side or the other during those five years that you don't want to happen. So you need to set it up correctly going in, and yes, you can review it after five years, but you have to have the flexibility in the bill itself. For example, you say we have been debating this since 2005. I was on that task force. As I say, we spent a lot of time just on the basic principles of spam, opt-in versus opt-out. We spent no time covering these kinds of provisions because we had never seen them, of course. We thought something should be done about spyware, but even the task force didn't go down to say, how exactly do we approach that?

What we want now is not to have the case of the person I've known for 20 years go and set up their own firm and all of a sudden he's susceptible to $10 million in civil lawsuits for sending out notices that I want to receive--as to where they're operating from now--or for things that can be downloaded onto my computer, or for perhaps the kind of unsubscribed mechanism that you can do on the computer that is not going to work well on the BlackBerry.

[Mike Wallace, Conservative, Burlington, ON]

Sir, do you think that's actually definable in a piece of legislation, to get to that fine detail?

[Bernard Courtois]

In the sense that you can define “implied consent” in a way that at least you know you haven't covered the bad stuff. You can define the types of bad behaviour that you're going after so that you know you're not going to catch some of the good behaviour. That's why I'm saying you need a provision there that says if there's some new bad thing that comes up that we have not foreseen--and of course the bad guys are always trying to think up new variations as well--you put in the regulation that you can cover that. So it's going to happen for a month, or two or three, and you've covered it.

What you can't do is inadvertently catch something day in and day out that is perfectly legitimate and take three months to correct that.

[The Chair, Conservative, Michael Chong]

Thank you very much, Mr. Courtois.

We'll now go to Monsieur Vincent.

[Robert Vincent, Bloc, Shefford, QC]

Thank you, Mr. Chair. I'd also like to welcome the witnesses.

My question is for Mr. Sookman. I think you are caught in the middle, so to speak. You represent the Chamber of Commerce, whose members include industries. You spoke of business to business contacts and all of the members of your association that want to send e-mails. However, at our last meeting, mention was made of a problem. The fact is that many businesses do not like to receive e-mails, even those sent by another business. Take, for example, someone who has a contract to build a 10-storey building. Suppose door and window manufacturers across Canada and the United States decide to e-mail this business and it receives about 500 e-mails in all. There is a cost to the business because someone needs to open and read all of these e-mails. Time is lost in the process.

How do your partners feel about this? In a way, they are not in a conflict of interest situation, but in another way, they are because they can no longer send out an e-mail without violating the terms of this act?

[Barry Sookman]

I think it's true that some businesses will not want to receive certain business e-mail. The objective here is to find the right mix, because many companies would.

Many companies--in fact, many members of the chamber--establish websites for the very purpose of developing a relationship with those they don't know yet. They have a description of their products and services. They publish their e-mail addresses and very much welcome a new supplier or a new buyer of their products and services. This is a situation where there is no pre-existing relationship. Those companies have made investments for the very purpose of having people they don't know contact them to buy these new Canadian products or services. They would be delighted to get these e-mails.

As the bill is currently drafted, because of the express consent, they wouldn't even be able to click on the e-mail address that's on the website for the purpose of communicating with them, making an order, or sending them an RFP or RFQ. I think that's the problem we're trying to solve. The implied consent rule would help in that kind of situation.

Australia deals with that situation by recognizing an express exception for e-mail addresses that are conspicuously published on websites.

[Robert Vincent, Bloc, Shefford, QC]

You say that some people are happy to receive these e-mails, but what about the businesses that are unhappy over the large number of e-mails they receive? What do you say to those who do not want to receive spam?

You are on the horns of a dilemma. You claim that a balance needs to be struck, but it only works one way. The people who want to receive e-mails from business associates ultimately end up getting e-mails from people with whom they do not want to associate.

How do you strike a balance? A business will no longer be free to choose the party with whom it wishes to associate because it will be receiving between 500 and 1,000 pieces of spam per day, unless it hires someone to open these emails all day long to see if they contain any interesting offers, or chooses to open them itself to see if there is anyone they may want to work with.

How do you respond to that? How is it possible, in your opinion, to strike a balance? I consulted you website to see the recommendations put forward by the Chamber of Commerce. You haven't mentioned a single one of these recommendations today.