Evidence of meeting #75 for Industry, Science and Technology in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was casl.
A recording is available from Parliament.
Liberal
Majid Jowhari Liberal Richmond Hill, ON
That's okay. That was a great clarification. Thank you, Mr. Chair.
Conservative
Maxime Bernier Conservative Beauce, QC
Thank you, Mr. Chair.
My first question is for Mr. Smith.
You said there's a lot of spam but the question is how much of this spam is coming to our inboxes? You were saying maybe 99% is not. Can you explain?
Director, Intellectual Property and Innovation Policy, Canadian Chamber of Commerce
The intent of that comment was to demonstrate that having CASL in place really hasn't had an impact on the volume of spam coming to your inbox. The ISPs are managing that for you. There's a technical solution to dealing with most of the spam that comes through right now, and companies like Microsoft and Google and others that are managing your email accounts for you are filtering out most of the spam that comes through the system. They're the ones spending the money to make that happen.
Conservative
Maxime Bernier Conservative Beauce, QC
So that's why the question is on cybersecurity now. If the private sector is successful in finding ways to prevent consumers from receiving spam, I don't think we need anti-spam legislation. The private sector is giving that to consumers.
But I'm very concerned, Mr. Sookman, what you said about cybersecurity; that this legislation is not helping. Can you explain it a bit more?
Partner, McCarthy Tétrault, As an Individual
You're exactly right. The legislation, as the goals were articulated, was to help protect consumers against malware, spyware, phishing, and to the extent that it covers that, those goals are appropriate and CASL does address that. The problem is that by expanding the ambit of CASL, the focus is not on addressing the real problems. So we have the CRTC going after a company because they've failed to have an unsubscribe, or there was a bounce-back, and they didn't give effect to it, when they could be spending their technical resources in trying to protect Canadians against cybersecurity.
My point is that the act is too broad and it's unfocused and it's leading to unfocused enforcement by the CRTC.
On the computer program side, the prohibitions against installing computer programs make it illegal to do things that Parliament would absolutely want legitimate organizations like Microsoft and other big software companies to do. I lobbied very hard for that in the regulations, and we ended up with a very narrow regulation that recognizes the problem but only if you're in a specific category. If you're in any other business, you can't protect your customers. We have to fix that.
Conservative
Maxime Bernier Conservative Beauce, QC
Can you tell me a little more about the exemption in the law that we are adding right now? You stated that adding exemptions in legislation illustrates that the legislation may have flaws. Could you elaborate on that, because as you know, we can extend the exemption, or if we have exemptions, it's because the legislation is not working. What is your view?
Partner, McCarthy Tétrault, As an Individual
You ask a very good question.
There are two kinds of ways in which the problems with CASL can be addressed.
One is legislative, like the private right of action. Only Parliament can address that because it's in the legislation, and at some point, it has to come into force or be killed or amended.
Two, the Governor in Council has a very broad regulatory authority, and many of the problems Canadians have occur because during the regulatory process there was—I think—a too narrow approach in what the exemptions should be, and when you have a structure that says that everything's illegal unless it falls within an exemption, you have a problem. Imagine a criminal law that prevented you from going out at night except if you were going to work or school or coming to the committee. You're bound to miss some, and that means a lot of things are going to be illegal until the regulatory process can catch up.
So the approach that the Governor in Council should have taken, in my respectful view, is to have had very generous exemptions so the act would apply to things that really counted, but it wouldn't discriminate against small business. There was no need, for example, for this law to apply to businesses, to business communications, at all, because they don't want it, they don't need it, and they see it as stifling innovation.
One thing this committee could recommend is that the Governor in Council re-review the regulations so that some of these things that are blatantly causing problems can be fixed.
Conservative
Maxime Bernier Conservative Beauce, QC
About the exemption, as you know, in the legislation we politicians have an exemption. We're not under that legislation. I don't think it's fair. We are asking for the civil society to follow that legislation and for us it's not important. I think that if we are serious about it, we politicians must be under the legislation. If not, just repeal that law. What do you think?
Partner, McCarthy Tétrault, As an Individual
You're exactly right, but if you actually look at that exemption, it applies to federal and provincial members who are applying. If you were, for example, trying to run for the leadership of a party, you'd be caught by CASL. But if you're running for municipal or regional government, you don't have the exemption so it discriminates very much in terms of the level of democracy that is protected.
I agree, nobody should have it...but in my view all politicians need to have it. It's essential for democracy that people who are running for office can reach out to potential constituents to be able to communicate their messages. It doesn't matter if it's federal or municipal, they should all be covered.
Conservative
Maxime Bernier Conservative Beauce, QC
That's a good point, I think we should keep that in mind.
I had that experience. I was running for the leadership of my party, and I was able to reach 65,000 people by email who were very happy to receive my email because they believed in the same values that I believe in. I was able to do that. But if I were in a non-profit organization, I wouldn't be able to explain my position and what I want to do.
I think the position of this committee must be to be sure that the politicians are under the legislation. If we're not ready to be under that legislation, we must repeal that legislation.
Partner, McCarthy Tétrault, As an Individual
Technically, even one running for the head of a party does not have the exemption.
Conservative
Liberal
Brian Masse NDP Windsor West, ON
I would add that it might be debatable whether receiving a message from Mr. Bernier would be spam or not, but I'll leave that for others to decide.
NDP
Brian Masse NDP Windsor West, ON
Before I get into comments, I was here for the original anti-spam legislation, and I think it's important to put some contextual element as to why it came about. I missed last week, but what I'm receiving here, at least the impression, is that this came out of left field, but that's not the case.
In 2004 there was, under the Martin administration, a national spam task force that went across this country and heard from businesses and from consumers and so forth, and they reported back unanimously to Parliament to act, because Canada was one of the few G7 nations without anti-spam legislation. We were the source daily of nine billion pieces of spam. In fact, countries that were comparable to Canada at that time were Nigeria, and other places like that.
Technology obviously has evolved, and I put forward the recommendation to review after three years. It was Conservative legislation that was put in place here. I'm glad that it is getting a review because a lot of things have changed. There have been some business elements that have changed with this, but also too, I think it's important that the cybersecurity element is looked at.
I see it differently in terms of approaching and how we got to this point. I see it as, I pay for this device. I pay for the ongoing service for the device. I pay for the use of it, and the maintenance, and if it gets infected by somebody sending something that I didn't want, or I didn't ask for, I have to be the person who loses my privacy, and has to pay for the cleanup. Sometimes the devices are damaged physically or damaged through the software. I have to pay for the servicing, all those different things. I believe it's a privilege to send me marketing or consumer information. If I'm a customer of my bank, Canada Trust or something else, it's their privilege, it's not their right, to send me something.
I approach it from that perspective because it was also an economic issue. The mere fact that we had so many people trapped going through so many emails...and we all know in our offices what we receive. I come from the day, sadly enough, where your fax machine used to spit out the equal of that, and some people now say what's a fax machine?
My first question would be to Mr. Smith. One thing I have heard across the board here is the lack of understanding of rules. One thing I do like is a rules-based system of understanding exactly what is required and how. You read a good segment there with regard to that communication. If right now, we weren't to change anything with regard to the responsibilities or roles, how do you think that it could actually be condensed or what type of a playbook could be created to actually narrow it down so it's easier for businesses to really understand? We really want to get to the worst of the worst. Can that be done?
Director, Intellectual Property and Innovation Policy, Canadian Chamber of Commerce
I'll address a couple of your points in my response.
You're correct with regard to the spam task force, and I believe that even the Chamber of Commerce at one point was certainly in support of anti-spam legislation. That's a case of “be careful what you wish for” because we ended up with a piece of legislation that is breathtakingly large in scope. It covers basically every message that you could conceive of. If it's coming from a business, there is a likelihood that it is going to have some commercial content on it. Even if it's just in the signature block of a message, it has a link to a website, and suddenly that has become a commercial electronic message.
Our concern is about the scope, and narrowing the scope would solve a lot of problems. Taking one-on-one emails out of the equation, taking business-to-business emails out of the equation, would solve a lot of the problems.
I think most businesses that do email marketing or any kind of electronic commerce recognize the value of having an unsubscribe mechanism. There is no argument about that. If somebody doesn't want to receive messages, the businesses I deal with won't send any to them.
You heard from others today about the opt-in versus the opt-out. In the U.S. they have an opt-out system that works for the most part. It's not perfect, and I don't think we'll ever get to perfect, but I think the preference of business here would be to have a mechanism that allows them to communicate with their customers that first time in order to have the opportunity to opt out.
NDP
Brian Masse NDP Windsor West, ON
That would be a clearer definition in terms of why you would be in and out of it.
My concern about that, though, is that if you don't opt out then you can have all kinds of different spam, and you could recirculate that and so forth, so there is an argument there. I think it's worthy, though, to examine the potential. I have some really big concerns about it.
Let's say, for example, my bank sends me an advertisement that I have to click off. It's similar to spam in mine. Let's say that it's TD Bank. If I go to my TD site, it asks me a million times if I want to receive a product, and before I get to my banking, I have to click to get rid of it.
I've paid with my time for that, and I've paid for the data consumption of that ad. I've paid for all of those things to get something I don't want. I could easily read and find out about their products as a customer. What gives them the right to have me bear a cost for that in terms of time and financial data management that I have to make a decision on something I haven't asked for? Shouldn't they have to pay for that if they're actually going to be using my system and my time since I haven't asked for that?
Director, Intellectual Property and Innovation Policy, Canadian Chamber of Commerce
I think most companies have a management system where you can subscribe or unsubscribe from various components of their messages, or you can unsubscribe from everything, and it's simple, one click. If that doesn't work for you and you continue to get messages, you have a complaint option, or you can just block the sender.
NDP
Brian Masse NDP Windsor West, ON
That could also just be my ignorance, as a customer of TD Bank, so I'll have to look into that.
I have limited time, so I'll go to—
Director, Desjardins Group
If you want to come to Desjardins, we have that service.
NDP
Brian Masse NDP Windsor West, ON
With regard to the payday loans, I'm not sure you want me spending time on that issue right now.
Quickly, Mr. Lawford, with regard to this, if we just repeal everything now, what do you expect is going to happen?
Executive Director and General Counsel, Public Interest Advocacy Centre
The spam volume for Canadians will go up. What Canadians consider to be spam are messages that they don't want to receive, that are unsolicited. What this act does is flip it around. You have to ask consumers first. That's the point.
What they would start getting is unsolicited messages, and they would have no clue why they're on this list or why they're getting these messages. We'll just go right back to that.
