Industry committee  Yes. You heard my comments previously about what the regime should be. But if we were focusing on the term “existing business relationship”, one thing that would be useful to keep in mind is the background, where this definition came from. It came from the Telecommunications Act, and it preceded the establishment of the do-not-call list.

Industry committee  I have problems with the inaccuracy of the--

Industry committee  I never said that.

Industry committee  There's a question about whether the bill would be applied literally--do what it says, as anyone would ever interpret the actual words--or whether somebody would step back, look at the spam report, and say, “Oh, my goodness, nobody ever intended that.” Look at the spyware provision, as an example.

Industry committee  I think when you look at the balance between trying to prohibit perfectly benign and beneficial programs and then trying to work your way out of it through, potentially, regulations that don't exist today to cover that situation, or trying to identify what really is a problem, it's a lot easier to define what malware is, because people know it, and then to leave the regulations available, as Mr.

Industry committee  This is a circumstance that many Canadian businesses are confronted with, and what we're suggesting would actually protect those businesses. They aren't the businesses that are establishing websites and saying, “E-mail me. Here's my e-mail address.” You're referring to businesses that aren't doing anything that would invoke business relationships or implied consent situations.

Industry committee  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.

Industry committee  Yes, I am.

Industry committee  Okay. Sue.

Industry committee  McCarthy Tétrault is a member of the chamber.

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

Industry committee  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.

Industry committee  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.

Industry committee  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.

Industry committee  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.