Search Results for: casl

Stikeman Elliott’s Communications Law Blog has a new post (“CRTC tweaks anti-spam regulations“) that describes the recently filed final regulations made by the CRTC under Canada’s Anti-Spam Law (CASL). David Elder from Stikeman’s indicates 5 points where the regulations have seen some changes and clarification.

As indicated, we are still waiting for Industry Canada to finalize its regulations and for a vendor to be selected to operate a Spam Reporting Centre.

I continue to have doubts that any of us will see a decrease in the volume of real spam – offers for anatomical enhancement, debt relief, etc. This bill, as it was passed, will serve to dramatically increase the cost of electronic business and act as a deterrent for e-commerce adoption by legitimate businesses in Canada. The government should sit on this one until its impact can be assessed and integrated into an overall national digital strategy.

Last Thursday, I saw the CRTC mark the 7th anniversary of Canada’s anti-spam legislation (CASL) coming into force with a tweet:

I replied, noting that 7 years ago, I wrote: “CASL is indefensible”, in which I observed that the root of CASL’s problems were that “we strayed too far from trying to target fraud. In doing so, Canada is going to cause harm to the adoption of digital technologies and electronic commerce.”

The main problem with unwanted electronic messages (emails and texts) and calls is fraud: calls and messages that purport to be from someone or some company other than the real caller; or, misrepresenting the goods or services or purpose of the call; or, those continuing to call after being asked to stop.

Those are the communications that we should have been focusing on trying to stop. But those seem to be precisely the ones that are still getting through.

Instead, as predicted, we made life more difficult for legitimate businesses, and that translates into higher costs for Canadians. In December 2017, a Parliamentary Committee report repeatedly recognized the “unintended cost of compliance” in making recommendations for changes to the legislation. Those are unintended costs for Canadian businesses, which ultimately are borne by consumers.

For seven years, the legislative over-reach of CASL has impaired the efficient use of electronic commerce by Canadian businesses and failed to protect Canadians from malicious online threats.

It’s an anniversary that I’m not celebrating.

Today, Innovation, Science and Economic Development (ISED) Minister Navdeep Bains is launching a Digital Charter for Canada, including an initial set of measures to “build trust in the digital economy, and boost competitiveness in the data-driven knowledge economy.” The Digital Charter appears to be a followup to the National Digital and Data consultation from June, 2018.

The 10 principles set out in the Digital Charter are aimed at restoring and building “public trust in the data and digital environment”:

1. Universal Access: All Canadians will have equal opportunity to participate in the digital world, and the necessary tools to do so – including access, connectivity, literacy, and skills.
2. Safety and Security: Canadians will be able to rely on the integrity, authenticity and security of the services they use and should feel safe online.
3. Control and Consent: Canadians will have control over what data they are sharing, who is using their personal data and for what purposes, and know that their privacy is protected.
4. Transparency, Portability and Interoperability: Canadians will have clear and manageable access to their personal data and should be free to share or transfer it without undue burden.
5. Open and Modern Digital Government: Canadians will be able to access modern digital services from the Government of Canada, which are secure and simple to use.
6. A Level Playing Field: The Government of Canada will ensure fair competition in the online marketplace to facilitate the growth of Canadian businesses and affirm Canada’s leadership on digital and data innovation, while protecting Canadian consumers from market abuses.
7. Data and Digital for Good: The Government of Canada will ensure the ethical use of data to create value, promote openness, and improve the lives of people – at home and around the world.
8. Strong Democracy: The Government of Canada will defend freedom of expression and protect against online threats and disinformation designed to undermine the integrity of elections and democratic institutions.
9. Free from Hate and Violent Extremism: Canadians can expect that digital platforms will not foster or disseminate hate, violent extremism or criminal content.
10. Strong Enforcement and Real Accountability: There will be clear, meaningful penalties for violations of the laws and regulations that support these principles.

ISED intends for the Digital Charter to set a standard against which the government will measure the modernization of Canada’s privacy laws, competition rules and government programs. The Charter also contains principles intended to address Government digital services, disinformation, as well as hate speech and violent extremism online. These latter elements may prove to be the most controversial elements, as the government wrestles with limits on Canadian speech freedoms.

Among the planned reforms are a modernization of Canada’s privacy law, PIPEDA – The Personal Information Protection and Electronic Documents Act, with measures intended to address issues around privacy, security, algorithmic transparency, consent, control of data, and enforcement. The Government is understood to be considering how to modernize its 20-year old policy and regulatory framework to protect privacy while supporting innovation. At the same time, the Minister appears to have recognized the administrative burden for small and medium sized companies (SMEs) compared to large corporations who have more resources to dedicate to compliance. ISED is proposing to simplify personal information protection requirements, so that SMEs are not disadvantaged while ensuring individuals’ personal information is still protected.

An initiative being led by the Department of Justice and the Treasury Board Secretariat is studying potential reforms to the Privacy Act, which governs the handling of personal information by federal institutions.

The Minister may want to look at whether Canada’s Anti-Spam Law (CASL) warrants a fresh look, in view of its administrative burden and whether its restrictions are contributing to or detracting from competitiveness in a digital economy.

Nine years ago, the Harper government launched a consultation for a national digital strategy, with Industry Minister Tony Clement, and Minister of Human Resources and Skills Development Diane Finley, joining Minister of Canadian Heritage and Official Languages James Moore for a process that dragged on for 4 years, culminating in the release of what I have called a pamphlet, not a national strategy.

The Digital Charter will raise concerns from a variety of quarters as Canada navigates the issues associated with government intervention on speech freedoms, whether it is the role of government in moderating content it considers to be ‘disinformation’ or applies hard restrictions on hate speech and extremism. These are important matters to be discussed and debated meaningfully. As such, it is encouraging to see the Digital Charter raise the level of dialog on such substantive issues.

Minister Bains will be delivering the closing keynote address at The 2019 Canadian Telecom Summit, taking place June 3-5 in Toronto. Have you registered yet?

For years, I have found the issue of technological neutrality in legislation to be a fascinating area.

Eleven years ago, I wrote about “Illegal content on the internet,” looking at how the industry needed to find ways to tackle child abuse images on the internet.

Carriers are not being asked to be censors. Canada already has laws that forbid certain types of content. If the illegal content is in printed form, our customs agents confiscate it at the border. If these existing laws are to have meaning, we should be taking steps to close the digital loophole.

There are numerous cases where we treat digital content differently from the same material in print form. Generally, those differences result in more lenient regulation of digital content than the print equivalent. The most significant exception to this rule is commercial marketing messages, which are subjected to extremely harsh legislative restriction in electronic form (For a discussion of CASL, see “Snacking on digital policy,” from 3 years ago), but are freely distributed in paper form.

European states, such as Germany, have been closing its digital loopholes for more than a decade. In 2006, I wrote about an EU directive requiring that service providers retain “data necessary to trace and identify the source of a communication” in order to provide law enforcement officials with access to the same information they would have in a paper environment. In 2008, I noted that France ordered ISPs to block hate content. In 2009, I wrote that Germany took steps to protect copyright for content on the internet. At that time, I asked “Are Europeans going to lead in treating digital and conventional content within a technology neutral legal framework?”

Earlier today, Reuters reported “German cabinet agrees to fine social networks over hate speech.” The report attributes to Justice Minister Heiko Maas the statement: “There should be just as little tolerance for criminal rabble rousing on social networks as on the street”.

Why do we still treat the digital world differently?

A few months ago, Canada’s Minister of Innovation, Science and Economic Development Navdeep Bains said “The digital economy is the economy.” He is right.

Perhaps in recognition of the transition of the economy, Canada’s recent Budget promised a review of the legislation that governs the internet:

To ensure that Canadians continue to benefit from an open and innovative Internet, the Government proposes to review and modernize the Broadcasting Act and Telecommunications Act.

In this review, the Government will look to examine issues such as telecommunications and content creation in the digital age, net neutrality and cultural diversity, and how to strengthen the future of Canadian media and Canadian content creation.

As part of that review, Canada might consider exploring those areas in which the digital economy receives different treatment from legacy and determine whether each of the distinctions are appropriate.

It is hard to tell what actions (or failures to act) I found most disappointing from the past government. There are so many to choose from, as frequent readers can attest.

CASL – Canada’s Anti-Spam Law – ranks right up there among the most anti-business acts by a conservative government. Once named in an Orwellian fashion as the Electronic Commerce Protection Act, for some reason CASL was given immunity from the government’s red-tape reduction provisions that, among other provisions, dictate “When a new or amended regulation increases the administrative burden on business, regulators are required to offset – from their existing regulations – an equal amount of administrative burden cost on business.”

But, even worse than CASL was the complete failure by three successive Industry Ministers to develop and articulate a national digital strategy that is a root cause of CASL’s over-reach, among so many other problems. It was a failure to demonstrate real digital leadership.

Tuesday’s Toronto Star cited an internal report prepared for the Treasury Board that says “Fifteen years ago, Canada placed first worldwide in e-government services; today the UN e-government survey ranks Canada as 11th.” According to the Star’s report, in 2013 the Auditor General found access to government online services had not significantly expanded since 2005.

It was in 2010 that then Industry Minister (and future head of the Treasury Board) Tony Clement launched a consultation on the digital economy. It took 4 years for the government to pull together a document that was little more than a campaign pamphlet. The digital economy was left “drifting aimlessly” as I wrote in late 2013. That blog post details the missed deadlines and failures to demonstrate meaningful digital economy leadership by successive Industry Ministers. It is a depressing read.

It is encouraging that the new Treasury Board President, Scott Brison, is reviewing the digital delivery of government services. We need a more comprehensive digital strategy with policy directions to guide administrative and regulatory bodies that oversee the telecommunications and broadcasting industries and issues of privacy and intellectual property rights.

In December, I wrote:

Do Governments really get power of disruptive global apps? Should regulators forbear to allow legacy industries to adapt? Do markets work?

— Mark Goldberg (@Mark_Goldberg) December 14, 2015

In earlier tweets, I connected the current news of a battle between Toronto taxi drivers, Quebec’s law to order the blocking of gambling websites by internet service providers and the financial woes of CHCH television. In each case, a heavily regulated legacy industry is facing disruption from large multi-national internet-based applications. I ask the question of whether the three levels of government are responding appropriately. Are the legacy businesses being given the appropriate freedoms to respond to what is an asymmetric market?

As I have been writing for years, we are long overdue for a review of telecom policy and legislation. As a result, the CRTC continues to insist that it has the authority (even though it lacks the ability) to regulate Netflix and YouTube.

At the time he was appointed as Minister of Innovation, Science and Economic Development, Navdeep Bains received a mandate letter that included as one of his key objectives “Increase high-speed broadband coverage and work to support competition, choice and availability of services, and foster a strong investment environment for telecommunications services to keep Canada at the leading edge of the digital economy.”

At the time, I asked:

How does the instruction to “foster a strong investment environment for telecommunications services to keep Canada at the leading edge of the digital economy” apply to the appeals in front of Cabinet and the CRTC that I described last week in “Does CRTC policy inhibit investment?” with its “Wholesale inconsistency“?

What signals will Cabinet be sending to the private and public sectors as it deals with the Bell fibre appeal?

How will this government begin to demonstrate its digital leadership?