LibertyVoice

The government today introduced Bill C-28, the Fighting Internet and Wireless Spam Act.  The bill carries a new name from the old Bill C-27 (which was titled the Electronic Commerce Protection Act), but the bill is roughly the same as the bill that passed the House of Commons last year.  That bill was subject to considerable change based on compromises from all parties.  The resulting bill was not as strong as first introduced, but it did garner the support of all four political parties and most observers.  The new bill contains some modest changes involving privacy, but most of the core provisions remain unchanged.  It deserves broad support and should be placed on the fast track given that it was effectively the subject of extensive hearings from the Industry Committee.  For more on the original bill, see here, here, here, and here.  A transcript of my appearance before the Industry Committee can be found here.

The government has placed two bills on the notice paper for introduction next week: the Electronic Commerce Protection Act (which is the re-introduction of the anti-spam bill that died with prorogation) and amendements to PIPEDA (which should be a data breach notification requirement bill).

Parliament resumes this week with the Speech from the Throne today following the unexpected – and unexpectedly contentious – decision by Prime Minister Stephen Harper to reset the legislative agenda through prorogation.  The House of Commons may have been quiet but my weekly technology law column (Toronto Star version, homepage version) notes the calls for a national digital strategy have grown louder in recent months.  Last week, the International Telecommunications Union issued its annual global measurement of the information society, which served again to highlight Canada’s sinking global technology ranking.  Canada ranked 21st (down from 18th in 2007) in its ICT Development Index, which groups 11 indices including access, use, and technology skills.  

Canada’s sliding global ranking reflects 10 years of policy neglect.  Other countries prioritized digital issues while leaders here from all parties have been content to rest on the laurels of the late 1990s, only to wake up to a new, less-competitive reality in 2010.

Industry Minister Tony Clement has spoken frequently about the need for a national digital strategy, but concrete policies have been slow in coming.  The parliamentary restart presents another opportunity for action.  Given the failure to date to articulate a comprehensive digital strategy, perhaps a different approach might work. Following the Speech from the Throne and the budget, there will be about 100 days until the summer break.  Clement could set a series of realizable targets during those 100 days.  Such targets would not solve ongoing concerns regarding the competitiveness of Canada’s wireless sector or the findings that Canadians pay higher prices for slower Internet speeds than consumers in many other countries, but some momentum could be gained and some quick wins achieved.

A 100-day digital agenda could have four components: new laws, new initiatives, new enforcement, and new policy development.

On the legislative front, Clement should reintroduce the Electronic Commerce Protection Act, the anti-spam bill that passed through the House of Commons and was to have been the subject of Senate hearings earlier this year.  Having received all-party support and extensive study, the legislation should be placed on a rocket docket with a commitment to passing the bill before the summer recess.

Two other long-awaited bills should be part of the short-term digital strategy.  With the national copyright consultation complete, a digital copyright bill consistent with Clement’s commitment to a forward-looking, technology neutral approach should be introduced within the next 100 days.  So, too, should a privacy reform bill, which Clement identified as a priority at the start of 2010.

Beyond new legislation, government can use the next 100 days to lead by example.  A new data.gc.ca website with open government datasets like those found in the U.S. and U.K. should be easy to achieve.  The government also could follow the Australian approach to solve the crown copyright problem that restricts use of government documents by adopting open licences that grant permission to use documents without formal approval (or the need for a new law).  

The government can use the next 100 days to step up its digital enforcement agenda.  This includes ensuring Internet providers are compliant with net neutrality requirements and that telemarketers abide by do-not-call legislation.

Finally, longer-term digital agenda issues must be put on the policy front burner.  These include discussions on spectrum allocation, digital television transition, removal of Canadian control requirements in the telecom sector, and new media issues.

None of these initiatives will mark an immediate resurgence in Canada’s digital ranking.  But after years of missteps, perhaps some baby steps now would put the nation’s digital agenda back on track.

The Globe ran a story over the weekend that estimated the cost of proroguing on Bill C-27, the anti-spam bill.  It points to the hours spent debating the bill and the hundreds of thousands of dollars spent working toward its introduction.

Reports this morning indicate that the government plans to prorogue Parliament, effectively shutting it down until March. One of the effects of prorogation is that all bills that have not received royal assent die and must be restarted from the beginning when a new Parliament begins.  While the government can try to move bills with broad support quickly back through the process (reinstatement requires approval in the House), the delays are significant.  Only 27 of the 64 Government bills introduced during the current session have received royal assent, leaving 37 bills in need of a restart.  Of those, at least four involve technology law: C-27 (anti-spam, electronic commerce), C-46 (lawful access), C-47 (lawful access), and C-58 (ISP child pornography reporting).  The anti-spam bill was the most advanced, having cleared the House of Commons and slated for review by a Senate Committee early in the new year.

The Electronic Commerce Protection Act received first reading in the Senate on Monday with plans for second reading tomorrow.  It will then go to the Senate Standing Committee on Transport and Communications for review.

The Electronic Commerce Protection Act, Canada's anti-spam bill (Bill C-27) passed through the House of Commons yesterday as a motion to support sending the bill to the Senate received approval.  The bill received all-party support but will undoubtedly face an intense lobbying campaign at the Senate.  Copyright lobbyists, real estate agents, and marketing survey companies were among the most aggressive lobby groups seeking changes when the bill was considered by the Industry Committee.  Clement stood his ground and the resulting bill is a good one.  Indeed, the lobbying efforts and attempts to weaken the bill did not go unnoticed.  During yesterday's discussion in the House, NDP MP Brian Masse, the party's representative on the Industry Committee, noted "when it gets to the Senate we will see whether or not there is going to be another lobby effort either to kill the bill or to weaken it some more."

Meanwhile, Liberal MPs who failed to garner support for their reforms were still pressing for changes.  MP Siobhan Coady stated "while the Liberal Party believes the bill remains unnecessarily restrictive to legitimate business in its approach in many regards, we will support the bill at third reading as action must be taken against spam. We will monitor the legislation closely going forward to ensure that it does not stifle legitimate electronic commerce in Canada."  Getting C-27 through the House is a big step, but the lobby attempts to water down the bill will no doubt be back for another round as the bill hits the Senate.

The Standing Committee on Industry, Science and Technology has issued its report on Bill C-27.  The report includes all the changes to the anti-spam bill, the Electronic Commerce Protection Act.

Bill C-27, the anti-spam bill, passed through the Industry Committee late Monday with the bill largely intact.  Indeed, Industry Minister Tony Clement was true to his word as the several provisions that would have watered down the legislation were dropped (third party referrals, exceptions for survey companies and self-regulated industries) as was a provision promoted by the copyright lobby that would have permitted unauthorized access to personal computers in certain circumstances.

The Liberals on the committee did attempt to introduce several watering down provisions, but each failed.  First, the third party referral provision – dropped by the Conservatives – was brought back by the Liberals as Marc Garneau warned that it was important for realtors.  The amendment was ruled out of order.  Second, a provision to tighten the provision on false subject headers, so that it would only apply in more limited circumstances.  The proposed amendment was defeated.  Third, the Liberals introduced a provision to limit the scope of spyware to specifically enumerated concerns. It too was defeated.

Bill C-27, the anti-spam bill, is nearly through the Industry Committee with a limited number of changes.  The Liberals have already stated that they would not be bringing forward the amendments promoted by the copyright lobby that would have permitted unauthorized access to personal computers in some situations.  The same issue arose during Question Period in the House of Commons on Thursday.  When asked about it by NDP MP Brian Masse, Industry Minister Tony Clement confirmed that the Conservatives would not bring forward a similar motion.

At Wednesday's hearing, there were a couple of changes instigated by Bloc. First, a specific exception for political parties was inserted into the bill.  This is arguably unnecessary since the bill only covers commercial activity.  Second, the Bloc succeeded in extending the period of a business relationship from 18 months to two years.  The clause-by-clause review should conclude on Monday.