LibertyVoice

Canwest covers the Conservatives' decision to scale back spam bill exceptions that were floated less than two weeks ago.

Canwest covers the Conservatives' decision to scale back spam bill exceptions that were floated less than two weeks ago.

The Conservatives reversed course on plans to water down Bill C-27 in an aborted clause-by-clause meeting today that promises another 48 hours of intense lobbying on the anti-spam bill.  Parliamentary Secretary Mike Lake opened this afternoon's meeting by putting the Government's proposed changes into the public record. Most notably, the Conservatives have dropped their support for exceptions for survey and marketing companies (a huge loophole), self-regulated organizations such as the Law Society of Upper Canada, and third party referrals.  This brings the bill much closer to its original incarnation with some minor tweaking and clarifications.  It has also unleashed a new round of intense lobbying with the Bloc moving for an immediate adjournment of today's meeting.  The motion was supported by all opposition parties.  The clause-by-clause review will now take place on Wednesday.

Assuming support for the Conservatives' changes, the remaining major issue is the spyware amendments promoted by copyright lobby groups such as the music and software industries.  Lake indicated that the Conservatives were prepared to accept a change with respect to email addresses, but sources say that there is no support for the copyright lobby's demands for carve outs for DRM in the computer program definition and for collecting personal information without authorization from users' computer as part of investigations into alleged contractual or legal breaches (see this post for more detail).  The question over the next 48 hours is whether the Liberals will reconsider their ill-advised motions and if all parties will resist the intense lobbying efforts to bring back changes that would water down the bill.

The Conservatives reversed course on plans to water down Bill C-27 in an aborted clause-by-clause meeting today that promises another 48 hours of intense lobbying on the anti-spam bill.  Parliamentary Secretary Mike Lake opened this afternoon's meeting by putting the Government's proposed changes into the public record. Most notably, the Conservatives have dropped their support for exceptions for survey and marketing companies (a huge loophole), self-regulated organizations such as the Law Society of Upper Canada, and third party referrals.  This brings the bill much closer to its original incarnation with some minor tweaking and clarifications.  It has also unleashed a new round of intense lobbying with the Bloc moving for an immediate adjournment of today's meeting.  The motion was supported by all opposition parties.  The clause-by-clause review will now take place on Wednesday.

Assuming support for the Conservatives' changes, the remaining major issue is the spyware amendments promoted by copyright lobby groups such as the music and software industries.  Lake indicated that the Conservatives were prepared to accept a change with respect to email addresses, but sources say that there is no support for the copyright lobby's demands for carve outs for DRM in the computer program definition and for collecting personal information without authorization from users' computer as part of investigations into alleged contractual or legal breaches (see this post for more detail).  The question over the next 48 hours is whether the Liberals will reconsider their ill-advised motions and if all parties will resist the intense lobbying efforts to bring back changes that would water down the bill.

Media coverage over the weekend suggested a possible split among Liberal MPs over Bill C-27, the anti-spam bill.  Canwest's coverage noted that the Liberal MPs have tabled motions designed to water down the bill.  I blogged last week about motions promoted by copyright lobby groups such as the music and software industries that would allow for the collection of personal information on users' computers without their knowledge or authorization.  The CBC covered the pressure from the Canadian Marketing Association for reforms.  The piece noted support for the bill from Liberal MP Dan McTeague, who indicated that it "is long overdue."  The clause-by-clause hearing is set for this afternoon.

Media coverage over the weekend suggested a possible split among Liberal MPs over Bill C-27, the anti-spam bill.  Canwest's coverage noted that the Liberal MPs have tabled motions designed to water down the bill.  I blogged last week about motions promoted by copyright lobby groups such as the music and software industries that would allow for the collection of personal information on users' computers without their knowledge or authorization.  The CBC covered the pressure from the Canadian Marketing Association for reforms.  The piece noted support for the bill from Liberal MP Dan McTeague, who indicated that it "is long overdue."  The clause-by-clause hearing is set for this afternoon.

As I posted earlier today, the Electronic Commerce Protection Act comes to a conclusion in committee on Monday as MPs conduct their "clause by clause" review.  While I have previously written about the lobbying pressure to water down the legislation (aided and abetted by the Liberal and Bloc MPs on the committee) and the CMA's recent effort to create a huge loophole, I have not focused on a key source of the pressure.  Incredibly, it has been the copyright lobby – particularly the software and music industries – that has been engaged in a full court press to make significant changes to the bill.

The copyright lobby's interest in the bill has been simmering since its introduction, with lobbyists attending the committee hearings and working with Liberal and Bloc MPs to secure changes.  The two core concerns arise from fears that the bill could prevent surreptitious use of DRM and block enforcement initiatives that might involve accessing users' personal computers without their permission.

The DRM concern arises from a requirement in the bill to obtain consent before installing software programs on users' computers. This anti-spyware provision applies broadly, setting an appropriate standard of protection for computer users.  Yet the copyright lobby fears it could inhibit installation of DRM-type software without full knowledge and consent.  Sources say that the Liberals have introduced a motion that would take these practices outside of the bill.  In its place, they would define computer program as, among other things, "a program that has as its primary function…inducing a user to install software by intentionally misrepresenting that installing that software is necessary to safeguard security or privacy or to open or play content of a computer program." This sets such a high bar – primary function, intentional mispresentation – that music and software industry can plausibly argue that surreptitious DRM installations fall outside of C-27. 

Even more troubling are proposed changes that would allow copyright owners to secretly access information on users' computers. 

PIPEDA currently features a series of exceptions to the standard requirements for obtaining consent for the collection of personal information (found in Section 7). Bill C-27 includes a provision that bars those exceptions in cases involving computer harvesting of email addresses and the "collection of personal information through any means of telecommunication, if the collection is made by accessing a computer system or causing a computer system to be accessed without authorization."  In other words, email harvesting and spyware would not be permitted and would not qualify for the PIPEDA exceptions found in Section 7. 

The copyright lobby is deeply concerned that this change will block attempts to track possible infringement through electronic means.  The Section 7(1)(b) exception in PIPEDA currently  states that collecting personal information without consent or knowledge of the individual is permitted if it is reasonable to expect that the collection "would compromise the availability or accuracy of the information" and the collection is "related to investigating a breach of an agreement or a contravention of the laws of Canada." 

One can well imagine how this exception could be used for investigations targeting the violation of a user agreement or alleged copyright infringement.  With the changes in C-27, the exception would no longer apply to harvesting email addresses or to accessing personal information on computers without authorization.  For the copyright lobby, this would block investigations that involve capturing user information on computers without knowledge or consent.  In response, sources advise that the Liberals have tabled a motion that would exclude Section 7(1)(b) from C-27 – effectively restoring the exception in these circumstances.

On top of these provisions, sources say the Liberals have also tabled motions to extend the exemptions for telecom providers. The bill currently includes an exemption for telecom providers where they act as intermediaries in the transmission of a spam message (Section 6(6) of the bill).  This obviously makes sense as telecom providers should not be treated as the message sender when they are merely the messenger.  Yet there is a proposed motion that would also create an exception for telecom providers to the requirement to obtain express consent before users install programs on their computers.  It states that the section does not apply to telecom providers providing a telecom service, which is defined to include:

"providing computer security, user account management, routing and transmission of messages, diagnostics, technical support, repair, network management, network maintenance, authorized updates of software or system firmware, authorized remote system management, and detection or prevention of the unauthorized, fraudulent or illegal use of a network, service, or computer software, including scanning for and removing computer programs"

These proposed changes are simply outrageous and it is disappointing that the Liberals have brought forward motions on behalf of the lobby in this manner.  With the hearing on Monday, it is critical for Canadians to speak out – yet again – to ensure that C-27 does not leave the door open to private surreptitious surveillance.  Write to Industry Minister Tony Clement, your MP, or the members of the Industry Committee today asking them to reject these changes.  The members of the committee include:

• Michael Chong (Con), Chair
• Anthony Rota (Lib), Vice-Chair
• Robert Bouchard (BQ), Vice-Chair
• Gordon Brown (Con)
• Siobhan Coady (Lib)
• Marc Garneau (Lib)
• Mike Lake (Con)
• Brian Masse (NDP)
• Dave Van Kesteren (Con)
• Robert Vincent (BQ)
• Mike Wallace (Con)
• Chris Warkentin (Con)

As I posted earlier today, the Electronic Commerce Protection Act comes to a conclusion in committee on Monday as MPs conduct their "clause by clause" review.  While I have previously written about the lobbying pressure to water down the legislation (aided and abetted by the Liberal and Bloc MPs on the committee) and the CMA's recent effort to create a huge loophole, I have not focused on a key source of the pressure.  Incredibly, it has been the copyright lobby – particularly the software and music industries – that has been engaged in a full court press to make significant changes to the bill.

The copyright lobby's interest in the bill has been simmering since its introduction, with lobbyists attending the committee hearings and working with Liberal and Bloc MPs to secure changes.  The two core concerns arise from fears that the bill could prevent surreptitious use of DRM and block enforcement initiatives that might involve accessing users' personal computers without their permission.

The DRM concern arises from a requirement in the bill to obtain consent before installing software programs on users' computers. This anti-spyware provision applies broadly, setting an appropriate standard of protection for computer users.  Yet the copyright lobby fears it could inhibit installation of DRM-type software without full knowledge and consent.  Sources say that the Liberals have introduced a motion that would take these practices outside of the bill.  In its place, they would define computer program as, among other things, "a program that has as its primary function…inducing a user to install software by intentionally misrepresenting that installing that software is necessary to safeguard security or privacy or to open or play content of a computer program." This sets such a high bar – primary function, intentional mispresentation – that music and software industry can plausibly argue that surreptitious DRM installations fall outside of C-27. 

Even more troubling are proposed changes that would allow copyright owners to secretly access information on users' computers. 

PIPEDA currently features a series of exceptions to the standard requirements for obtaining consent for the collection of personal information (found in Section 7). Bill C-27 includes a provision that bars those exceptions in cases involving computer harvesting of email addresses and the "collection of personal information through any means of telecommunication, if the collection is made by accessing a computer system or causing a computer system to be accessed without authorization."  In other words, email harvesting and spyware would not be permitted and would not qualify for the PIPEDA exceptions found in Section 7. 

The copyright lobby is deeply concerned that this change will block attempts to track possible infringement through electronic means.  The Section 7(1)(b) exception in PIPEDA currently  states that collecting personal information without consent or knowledge of the individual is permitted if it is reasonable to expect that the collection "would compromise the availability or accuracy of the information" and the collection is "related to investigating a breach of an agreement or a contravention of the laws of Canada." 

One can well imagine how this exception could be used for investigations targeting the violation of a user agreement or alleged copyright infringement.  With the changes in C-27, the exception would no longer apply to harvesting email addresses or to accessing personal information on computers without authorization.  For the copyright lobby, this would block investigations that involve capturing user information on computers without knowledge or consent.  In response, sources advise that the Liberals have tabled a motion that would exclude Section 7(1)(b) from C-27 – effectively restoring the exception in these circumstances.

On top of these provisions, sources say the Liberals have also tabled motions to extend the exemptions for telecom providers. The bill currently includes an exemption for telecom providers where they act as intermediaries in the transmission of a spam message (Section 6(6) of the bill).  This obviously makes sense as telecom providers should not be treated as the message sender when they are merely the messenger.  Yet there is a proposed motion that would also create an exception for telecom providers to the requirement to obtain express consent before users install programs on their computers.  It states that the section does not apply to telecom providers providing a telecom service, which is defined to include:

"providing computer security, user account management, routing and transmission of messages, diagnostics, technical support, repair, network management, network maintenance, authorized updates of software or system firmware, authorized remote system management, and detection or prevention of the unauthorized, fraudulent or illegal use of a network, service, or computer software, including scanning for and removing computer programs"

These proposed changes are simply outrageous and it is disappointing that the Liberals have brought forward motions on behalf of the lobby in this manner.  With the hearing on Monday, it is critical for Canadians to speak out – yet again – to ensure that C-27 does not leave the door open to private surreptitious surveillance.  Write to Industry Minister Tony Clement, your MP, or the members of the Industry Committee today asking them to reject these changes.  The members of the committee include:

• Michael Chong (Con), Chair
• Anthony Rota (Lib), Vice-Chair
• Robert Bouchard (BQ), Vice-Chair
• Gordon Brown (Con)
• Siobhan Coady (Lib)
• Marc Garneau (Lib)
• Mike Lake (Con)
• Brian Masse (NDP)
• Dave Van Kesteren (Con)
• Robert Vincent (BQ)
• Mike Wallace (Con)
• Chris Warkentin (Con)

With the final Industry Committee review of C-27, Canada's anti-spam legislation, set for Monday afternoon, lobby groups have been increasing the pressure all week in an effort to water down many of the bill's key protections.  Yesterday, the Canadian Marketing Association chimed in with an emergency bulletin to its members calling on them to lobby for changes to the bill.  While the CMA was very supportive of the bill when it appeared before the committee in June, it now wants to kill the core protection in C-27 – a requirement for express opt-in consent. 

The use of express opt-in consent is consistent with the experience in countries such as Australia and Japan, who have found that either opt-out (the customer must request off the list) or implied opt-in (the business assumes it has consent based on other factors) is ineffective and prone to abuse.  C-27 includes many exceptions (business-to-business, all non-commercial email among them) to protect businesses, but without an express opt-in approach as the default, the law's effectiveness will be severely undermined.  While the CMA did not even raise the issue in June, now it wants the bill changed, seeking reforms that would allow for implied consent, particularly where the information is less sensitive.  The CMA argues that it needs the reforms to allow marketers to rent lists of potential customers, yet C-27 does nothing to stop renting lists with customer names who have opted-in.  Instead, the CMA's change would eviscerate a key foundation of the bill by opening a huge loophole in the consent provisions.

How to respond?  As I noted earlier in the week, if Canadians want an anti-spam bill with some teeth, they are going to have to fight for it.  Consider writing to Industry Minister Tony Clement, your MP, or the members of the Industry Committee today asking them to support C-27 with an opt-in approach.  The members of the committee include:

• Michael Chong (Con), Chair
• Anthony Rota (Lib), Vice-Chair
• Robert Bouchard (BQ), Vice-Chair
• Gordon Brown (Con)
• Siobhan Coady (Lib)
• Marc Garneau (Lib)
• Mike Lake (Con)
• Brian Masse (NDP)
• Dave Van Kesteren (Con)
• Robert Vincent (BQ)
• Mike Wallace (Con)
• Chris Warkentin (Con)

With the final Industry Committee review of C-27, Canada's anti-spam legislation, set for Monday afternoon, lobby groups have been increasing the pressure all week in an effort to water down many of the bill's key protections.  Yesterday, the Canadian Marketing Association chimed in with an emergency bulletin to its members calling on them to lobby for changes to the bill.  While the CMA was very supportive of the bill when it appeared before the committee in June, it now wants to kill the core protection in C-27 – a requirement for express opt-in consent. 

The use of express opt-in consent is consistent with the experience in countries such as Australia and Japan, who have found that either opt-out (the customer must request off the list) or implied opt-in (the business assumes it has consent based on other factors) is ineffective and prone to abuse.  C-27 includes many exceptions (business-to-business, all non-commercial email among them) to protect businesses, but without an express opt-in approach as the default, the law's effectiveness will be severely undermined.  While the CMA did not even raise the issue in June, now it wants the bill changed, seeking reforms that would allow for implied consent, particularly where the information is less sensitive.  The CMA argues that it needs the reforms to allow marketers to rent lists of potential customers, yet C-27 does nothing to stop renting lists with customer names who have opted-in.  Instead, the CMA's change would eviscerate a key foundation of the bill by opening a huge loophole in the consent provisions.

How to respond?  As I noted earlier in the week, if Canadians want an anti-spam bill with some teeth, they are going to have to fight for it.  Consider writing to Industry Minister Tony Clement, your MP, or the members of the Industry Committee today asking them to support C-27 with an opt-in approach.  The members of the committee include:

• Michael Chong (Con), Chair
• Anthony Rota (Lib), Vice-Chair
• Robert Bouchard (BQ), Vice-Chair
• Gordon Brown (Con)
• Siobhan Coady (Lib)
• Marc Garneau (Lib)
• Mike Lake (Con)
• Brian Masse (NDP)
• Dave Van Kesteren (Con)
• Robert Vincent (BQ)
• Mike Wallace (Con)
• Chris Warkentin (Con)