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Hot Legal Action in Canada!

Neil Schwartzman

The best part is ... this isn't one of those 'now that I've got your attention' tricks, like one of those old "free beer" posters; there really is a ton of stuff happening above the 49th parallel this summer.

Canada's Anti-Spam Law

To begin with, as a precursor to Canada's Anti-spam Law coming into effect later this year, the Office of the Privacy Commissioner, the Canadian Radio-television Telecommunications Commission, and Industry Canada have all issued regulations, the latter two in draft form with an RFC.

The regulations define express and implied consent, how unsubscribes should work, what disclosure information should be presented to subscribers, and the manner in which it is displayed. The regulations are, in essence, where numerous T's are being crossed, and i's being dotted, and are well worth a glance.

My organization, CAUCE, as well as numerous others will doubtlessly be submitting responses to the RFCs, if you have a dog in the email fight, by all means feel free to comment as an individual, or as a representative of your employer, as appropriate.

CAUCE has written, briefly, about the CRTC and Industry Canada regulations, and will be issuing our full platform, shortly.

Usage-Based Billing

UBB, or usage-based billing is the hot topic of discussion at the CRTC these days, with, well, more than the traditional two sides to the issue.

Basically, the issue is about how big network service providers sell connectivity to smaller ISPs dotting the countryside, most predominately (but not limited to) in rural areas in Canada. Some mega-providers want to place bandwidth limits on their wholesale prices charged to SME ISPs, which would mean an inevitable rise in prices for Internet end-users who use any small or medium-sized provider. The CRTC (Canada's telecoms regulator) was ready to approve UBB, until a consumers' group, OpenMedia.ca began to make a lot of noise, and the previous Minister of Industry warned the CRTC that were they to approve any UBB scheme, the government would nip it in the bud.

This issue has had more twists and turns than a plateful of spaghetti, and I am simplifying to the point of disservice, I suggest you take a dive into Michael Geist's blog where he has kept a running commentary on UBB, which actually began becoming a topic of interest almost a year ago.

Over-the-Top Services

Even casual observers can also see how UBB might have effect upon Apple TV, YouTube, and Netflix, and sure enough, the CRTC is also holding hearings on what they call 'over the top' (OTT) services. The CRTC are, as crazy as it sounds, considering regulating these services here in Canada.

The CRTC are also holding hearings, again, on UBB. Read all about them here.

Lawful Access

You didn't think we were finished did you? Well, we're not! Lawful Access, a passel of bills that have been lurking since 2005 are once again threatening to show up on the order papers for the fall legislative session. They are, as some have put it, a solution in search of a problem.

In the most simple of terms, lawful access allows any police officer in Canada to show up at an ISP, assert a reasonable suspicion about a given account, and the ISP is required under these laws to turn over everything about a given subscriber, no questions asked, no court order necessary. The ISPs were, at one point, against these proposed laws, but only because it would cost them something to actually do the investigative work. Since then, there have been clauses inserted to ensure the police forces pay for each such 'request' they make, and opposition from the ISPs has all but vanished.

This post on the CAUCE website explains Lawful Access in detail.

I'm sure there are people in other parts of the world who are shaking their heads in disbelief at all of this; Canada wants to drive small ISPs out of business, regulate YouTube, and have cops walk into ISPs without court oversight and grab user data. When did Saudi Arabia become the upstairs tenants to America?!? Did the Bush neo-cons find a new gig up north? And, given how short their summer is, why are Canadians wasting all this time in meeting rooms?

These latter questions are rhetorical, and I'd best leave them unanswered.

By Neil Schwartzman, Executive Director, The Coalition Against unsolicited Commercial Email - CAUCE
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What is a CEM anyway? Alessandro Vesely  –  Jul 19, 2011 1:03 AM PDT

CEM stands for Commercial Electronic Message.  With a minimal interpretation effort, I'd guess an electronic message is something delivered with SMTP, although SMS (and a bunch of other stuff) probably qualify as well.  Maybe the same regulations can regulate all of them.  Let's focus on SMTP.  How do I distinguish a commercial message from messages of different kind?

SMTP (section 3.9 of RFC 5321) defines in what circumstances the recipients addresses are used non-interactively.  Regulations adherent to the protocol could mandate a formally verifiable consent for that specific use.  Adherence to SMTP protocol may boost enforcement at the expense of generality.

European Data Protection Act, by comparison, doesn't differentiate on possible commercial intents.  It requires the recipient's consent, but fails to indicate a protocol for acquiring consent on the wire.  The latter protocol could provide citizens with a list of entities that they granted consent to.

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