If the intention of the bill is to prohibit forms of malware that discourage reliance on electronic means of carrying out commercial activities, the sweeping prohibition goes far beyond what would be required and would have the potential of doing considerable damage to the development, sale, and distribution of commercial software in Canada, thus potentially doing more to discourage electronic commerce in Canada and the development of our digital economy than the malware it purports to target.
Lastly, all computer programmers must receive express consent from the user before a program is installed and must disclose the function, purpose, and impact of each individual computer program for that consent to be valid. Accordingly, each individual computer program that's installed must be individually identified and the function, purpose, and impact of each described prior to obtaining consent. Most software routinely installs and executes a multitude—potentially hundreds or even thousands—of small computer programs during the course of its operations in order to work. Obtaining express consent from the user, including a description of the specific function, purpose, and impact, each time a program is installed and executed would simply not be technically feasible; moreover, it has the potential of being highly disruptive to the end-user's experience and could even disrupt the operation of the software itself.
Rather than institute a general, sweeping prohibition, the anti-malware provisions of the ECPA should be expressly targeted to clear instances of malware or spyware that causes harm to the end user and should provide a specific and exclusive list of computer functions that are considered to be spyware activities, as is done in the case of many anti-spyware laws that have been passed by individual U.S. states. Alternatively, the provisions of the ECPA should be narrowed to only apply to computer programs installed on another system for malicious purposes.
I would like to thank the committee for the opportunity to speak here today. I look forward to any questions you may have and to working with you to improve this important bill.