Evidence of meeting #30 for Industry, Science and Technology in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was spam.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Elizabeth Denham  Assistant Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Duane Schippers  Deputy Commissioner of Competition, Legislative and Parliamentary Affairs Branch, Competition Bureau
Carman Baggaley  Strategic Policy Advisor, Office of the Privacy Commissioner of Canada
Hedy Kirkby  Acting Senior Counsel, Office of the Privacy Commissioner of Canada
Konrad W. von Finckenstein  Chairman, Canadian Radio-television and Telecommunications Commission
Len Katz  Vice-Chairman, Telecommunications, Canadian Radio-television and Telecommunications Commission
John Traversy  Executive Director, Telecommunications, Canadian Radio-television and Telecommunications Commission

5:50 p.m.

NDP

Brian Masse NDP Windsor West, ON

Thank you, Mr. Chair.

5:50 p.m.

Conservative

The Chair Conservative Michael Chong

Thank you very much, Mr. Masse.

Thank you, Mr. von Finckenstein.

Mr. McTeague.

5:50 p.m.

Liberal

Dan McTeague Liberal Pickering—Scarborough East, ON

Commissioner, it's a pleasure to have you here before this committee. I can say with some certainty that your role as former competition commissioner was one that saw a number of changes certainly in my time. I'd like to think that the changes we saw in Bill C-10 were the result of your good work and efforts over the past few years. Congratulations to you. I just realized that 10 years of fighting for this and debates back and forth was all done in one fell swoop without a single debate on it in the House of Commons. I was quite amazed at that, even though there are a lot of things in there that I agree with.

Commissioner, you have suggested something that requires a more fulsome explanation. With this bill, we are giving Canadians the impression that by looking after our own mess in our own backyard we are going to suddenly end spamming in Canada. In 2005 the task force recognized that the amount of spamming in Canada is very limited and the effect on Canadians is rather limited. Much of it does come from international sources. Your second recommendation is music to my ears and very much follows with the observation of the task force. I will read it into the record:

The actions that we take within Canada to reduce the amount of spam will only have a limited effect on the amount of spam arriving in Canadians' email boxes unless these actions are complemented and reinforced by strong, effective international cooperative actions against spammers.

Based on that, sir, not only from the bilateral perspective, but you've suggested that you would be working with the CRTC, the FTC, as well as with the FCC. Who, in your view, would be the lead in coordinating the effort of ensuring that spammers who went to other jurisdictions, not just between Canada and the United States, but...for instance, as I was discussing with my colleague, Mr. Rota, earlier, what if they all wound up in São Tomé?

What reasonable objectives can be achieved in the short term? You've talked about problems of agreements and collaboration and corroboration. How realistic is it that if we provide this legislation, we would stop the spamming in Canada? Also, how likely is it that we would be successful in stopping jurisdictions that have no enforcement responsibilities or any type of agreement in order to put an end to this once and for all?

5:50 p.m.

Chairman, Canadian Radio-television and Telecommunications Commission

Konrad W. von Finckenstein

I think you have to look at it in context. You're talking about commercial spamming, right?

5:50 p.m.

Liberal

Dan McTeague Liberal Pickering—Scarborough East, ON

That's correct.

5:50 p.m.

Chairman, Canadian Radio-television and Telecommunications Commission

Konrad W. von Finckenstein

Why do they do that? It's in order to sell something. In order for them to sell something, it has to be something that people want to buy. If you're in São Tomé, as you suggest, in spam, and if you provide for delivery from Canada, we can go after the people on whose behalf it is done. If you want to ship it from São Tomé, there are very few products that are worthwhile shipping from there. In the end, on spamming and the business case, it is really primarily if you're located in Canada and the U.S. That's why I'm so focused on the U.S. That's why I want to have such an agreement with them.

We are not going to eliminate spamming. There's no question about it. As for the letters you get from Nigerians offering you $20 million if you give them a bank account number or something like that, I can't do anything about them because they have no assets and Nigeria has no legislation.

But on the commercial spamming, if people offer you a product you don't want, we can deal with it. We're going to deal with people who try to put stuff on your computer without you knowing it, or the phishing, etc. I think by far the largest source of all of this is in our country or the country to the south, and that we will be able to deal with.

5:55 p.m.

Liberal

Dan McTeague Liberal Pickering—Scarborough East, ON

Thank you.

Are you concerned with any parts of the legislation that might be construed as overly broad? My colleague, Ms. Coady, had earlier referred to this.

First of all, on your position on administrative monetary penalties, if they go back to general revenue, how does that assist in targeting finances to the various three agencies that could be involved? Would there not be an understanding, or at least an attempt, to ensure that AMPs go directly to certain departments involved with combatting spam? Would you see something like this as practical?

5:55 p.m.

Chairman, Canadian Radio-television and Telecommunications Commission

Konrad W. von Finckenstein

Not at all. We never have had that, and we never will, because it gives the agencies the wrong incentive. It basically suggests that the more you convict, the more money you're going to have, and that's wrong. You want to make sure that the person who has the power acts objectively in view of the result to be obtained and this has absolutely no direct effect--

5:55 p.m.

Liberal

Dan McTeague Liberal Pickering—Scarborough East, ON

How about the party affected?

5:55 p.m.

Chairman, Canadian Radio-television and Telecommunications Commission

Konrad W. von Finckenstein

Well, the party affected can themselves sue. As I mentioned in my opening remarks, there is a private right of action. If you've suffered and you sue, whatever you recover is yours. But you have to prove the damages, of course.

5:55 p.m.

Liberal

Dan McTeague Liberal Pickering—Scarborough East, ON

Yes, beyond a doubt, and this is my point, which I think Ms. Coady has made, given that these high penalties can be exacted. As for the penalties that are required here in the form of an AMP, which are up to $1 million in the case of an individual or $10 million in the case of a non-individual, they tend to be without any right of trial.

I know there are concerns about the ex parte type of information being drawn without the person being present. There's merely a right to make representation, and a conviction would be entered on proof of only a balance of probabilities. Are you concerned about that given the concerns you just raised about the ability to do these things based on evidence of private right of action? In your experience, do you not think this is overreach?

5:55 p.m.

Chairman, Canadian Radio-television and Telecommunications Commission

Konrad W. von Finckenstein

No. First of all, it's “up to”, right? As I mentioned, really, like any other enforcement agency, you have a continuum of enforcement, and you go to the maximum only in the most egregious cases where you really want to set an example.

Secondly, the way the process works is the examination by one part of the organization and then a decision to proceed with actually a levying of an AMP, of suggesting an AMP. One of my colleagues--actually, it's Mr. Katz here--will make that initial decision. The other parties can then make representations saying that's inappropriate, and that either the facts are wrong or the amount is wrong, etc. Then we will send it to a panel of three commissioners who, until that point in time, know nothing about it and will look at it totally objectively.

Essentially, they hear the accusation and they hear the defence, and they decide. If they decide to levy an administrative monetary penalty, you have the right to appeal to a Federal Court of Appeal. The Federal Court of Appeal will set us straight if we get it wrong.

5:55 p.m.

Conservative

The Chair Conservative Michael Chong

Thank you, Mr. von Finckenstein.

Thank you, Mr. McTeague.

Mr. Wallace.

5:55 p.m.

Conservative

Mike Wallace Conservative Burlington, ON

Thank you, Mr. Chair.

Thank you, gentlemen, for joining us on this topic on what is now this evening. I have only a couple of questions. My one comment, though, based on what was just said, is that I can guarantee you we won't eliminate any spam if we don't get this legislation passed. That's an absolute guarantee. We cannot often guarantee too much, but that we can.

There are a couple of clarifications and then an example that I used before with the Competition Bureau. I just want to be sure I understand the ramifications.

First of all, on the first recommendation in terms of an amendment, you talk about the 30-day issue. I just want to be clear. You have that in other legislation and other requirements. That 30 days is a sort of standard that you would normally work by. Is that correct?

5:55 p.m.

Chairman, Canadian Radio-television and Telecommunications Commission

Konrad W. von Finckenstein

That's correct. It's an appeal. Where there is an appeal from an administrative tribunal to the Federal Court of Appeal, the standard is 30 days.

5:55 p.m.

Conservative

Mike Wallace Conservative Burlington, ON

And you have that in other legislation?

5:55 p.m.

Chairman, Canadian Radio-television and Telecommunications Commission

5:55 p.m.

Conservative

Mike Wallace Conservative Burlington, ON

I just want to be clear.

I'm not as clear about the next one, your second recommendation. According to my reading of the legislation, it actually says--and I think you even say in your opening statement--that as drafted it allows “the Commissioner to share information with other countries provided there is an international...”. Your issue is that you don't want to take that extra step of having an international agreement with another country, including the United States. Is that basically what the issue is?

6 p.m.

Chairman, Canadian Radio-television and Telecommunications Commission

Konrad W. von Finckenstein

That's one.

The other one is my experience with the U.S. enforcement agencies. When they see a piece of legislation in another country that mirrors their own, and they understand how it works, they have no problem cooperating. If it is different or if it's pursuant to an agreement, then they're worried themselves about exposure in the States to lawsuits, etc., and therefore the default course of action is not to cooperate.

6 p.m.

Conservative

Mike Wallace Conservative Burlington, ON

You hit on the next point I had. Even in your statement you talk about mirroring the Safe Web Act that's south of the border, but you're not making any recommendations here--not that I'm reading anyway--to say that this act needs to change to mirror the Safe Web Act.

6 p.m.

Chairman, Canadian Radio-television and Telecommunications Commission

Konrad W. von Finckenstein

No, I am not saying that. I am just saying—

6 p.m.

Conservative

Mike Wallace Conservative Burlington, ON

But it says here—

6 p.m.

Chairman, Canadian Radio-television and Telecommunications Commission

Konrad W. von Finckenstein

Well, I could also say that about other provisions we're not talking about. I'm just saying here's the one for investigating and sharing information.

6 p.m.

Conservative

Mike Wallace Conservative Burlington, ON

Just to finish that off, you're not providing this to us today for the first time. I'm assuming you've introduced that to the industry bureaucracy through the process.

6 p.m.

Chairman, Canadian Radio-television and Telecommunications Commission

Konrad W. von Finckenstein

I obviously told them I was going to do it. I have no power to introduce amendments. I can only suggest them to one of you, or when somebody else--