CAUCE NORTH AMERICA NEWS, Vol 14, No 6, 10 2013

[CAUCE North America]

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CAUCE News, Volume 14, Number 6
December 10, 2013


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Canada's Anti Spam Law : Spam isn't Just Nigerian Princes & Body-part
Adjustment

Long-time Anti-spammer & Publisher of [6]MainSleaze Catherine
Jefferson Discusses CASL and its Impact on Mainstream Marketers

In early December 2013 the Canadian government [7]announced that the
2010 [8]Canada's Anti-Spam Law (CASL) will go into effect on July 1,
2014. Although this law covers considerably more ground than just
unsolicited bulk email (spam), it is very good news for those who fight
spam, and especially good news for those of us who fight spam by
otherwise legitimate companies. The reason? CASL requires (with some
limited exceptions) that recipients of bulk email give explicit consent
to receive the email before it is sent. In other words, CASL requires
opt-in. Unlike the U.S. CAN-SPAM law and many other laws in many other
countries, CASL actually forbids most spam.

CASL also has teeth. Violations of the CASL opt-in requirement can draw
fines as high as $10 million Canadian per infringing email. By all
appearances, the Canadian government agencies responsible for
enforcement of CASL are prepared to enforce the law vigorously.

CASL applies to "criminal spammers" -- the sorts of spammers that use
botnets and compromised servers to advertise quack medications,
controlled substances, fake luxury goods, or solicit help to move large
sums of money out of Africa in return for an up-front fee. I do not
expect CASL to be of much assistance reining in criminal spam, however,
because I do not expect criminal spam gangs to obey CASL or pay CASL
fines. Such spam gangs are often located in countries that offer them
safe havens from law enforcement, and the identities of the people that
run them are unknown. Other methods than CASL or anti-spam laws (such
as blocklists, spam filters, and Interpol) are needed to fight that
type of spam.

CASL also applies to what I call mainsleaze spammers -- legitimate
companies and organizations that use their own IPs or legitimate email
service providers (ESPs) to offer legitimate goods and services.
Legitimate companies sometimes break the law, but they do not often
ignore it entirely. If prosecuted or sued, they and their attorneys
normally appear in court to defend themselves. Legitimate companies
also send a great deal of solicited bulk email mixed in with the spam,
so IP or domain blocks and spam filters cause significant and
sometimes-unavoidable false positives. Properly-written and
properly-enforced anti-spam laws can target only the spam and be used
to punish those who send spam without blocking email that people asked
to receive.

A number of people with legal backgrounds have posted blogs detailing
the provisions of CASL. I know spam better than I know the law, so I
took a look at how this law might apply to a number of actual spams
that I have received if either the sender or I were Canadian. Below I
discuss four cases where one or more spams was sent either to my
spamtraps or to a personal email address of mine. Each of the spams
that I discuss was sent by a legitimate U.S.-based or multinational
corporation via either their own IPs or a legitimate email service
provider (ESP).

Telecommunications Giant: Selling Internet & TV Service: In October
2011, a U.S. telecommunications company spammed an email address at a
domain of mine that has never had a legitimate email address,
advertising its all-in-one TV and Internet package. This email violated
CASL. If the company sends a similar email to a Canadian citizen after
July 1, 2014 and the citizen reports it, they face a stiff fine.

Social Networking Site: Sent Invitations to Non-Members. In early 2012
a large social networking site sent repeated invitations, and
reminders, to an email address of mine that did not belong to that
social network. After some pressure, the site added an opt-out
mechanism, but to this day most social networking sites continue to
send invitations to non-members. These emails violate CASL. If the
company that spammed me continues to send invitations to Canadian
citizen non-members after July 1, 2014 and one reports it, they face a
stiff fine.

Large Software Company: Selling its Newest Product. In late 2011 a
major software company spammed a pristine spamtrap with an
advertisement for the new release of its flagship product. The email
violated CASL. If the company sends an email to a Canadian citizen
after July 01, 2014 they face a stiff fine.

Gourmet Food Company: "Opting-in" customers who previously opted out. I
occasionally shop online at an internationally-known gourmet food
company. When I first bought from them, I opted out of all offers after
the first arrived in my inbox. Since then, I've shopped there four
times. *Each* time I was opted back in and started to receive offers
again, despite repeated opt-outs. As best I can tell, this practice
violates CASL. If after July 01, 2014 the company continues to
re-opt-in Canadian customers who opted out each time they place an
order, they face a stiff fine, in addition to loosing customers. (I've
found somewhere else to buy goodies.)

You would think that companies that obey the laws would also be open to
appeals to ethics and simple good manners, but I have found that this
assumption is incorrect entirely too often. The companies whose spam I
discuss above generally respect the law. Nonetheless, all three of them
also demonstrated a fundamental disrespect for the right of individuals
to choose whether to receive that company's email advertisements or
not. Unlike many people, I know how to determine who sent me an email.
I know who to complain to, and how to complain effectively. I also have
a forum where I can complain and be heard: the [9]Mainsleaze Spam Blog.
That did not prevent two of these companies from spamming me
repeatedly.

These spams illustrate the often-frustrating fact that the threat of
loosing customers or potential customers is not enough to prevent some
companies from spamming. Marketers assume that if they target their
advertisements properly, most people that they target will want to
receive their offers whether they asked for those offers or not. Many
marketers are convinced (rightly or wrongly) that, if they spam, they
will sell more goods and services than they will if they do not spam.
VPs of marketing and CMOs who think this way often carry the day with
company presidents and CEOs, who must answer to their boards of
directors when profits or the company's stock price drop.

Many ESPs have strong antispam policies. Some of these ESPs enforce
those policies effectively and consistently. At the end of the day,
though, all ESPs depend upon the companies that mail through them to
keep them in business. So, when companies are under pressure to spam,
their ESPs are under pressure to help them spam or at least to look the
other way.

Fortunately good laws can bring their own financial pressures to bear.
Legitimate companies do not like to pay substantial fines any more than
individuals do. As the saying goes, $10 million here, $10 million
there, and pretty soon you're talking about real money. If companies
and ESPs believe that they are likely to be prosecuted and face fines
that top out at $10,000,000 Canadian dollars per email, most will stop
spamming, even those who are otherwise willing to spam.

CASL also allows non-Canadians to complain about spam that they receive
from a Canadian company, [10]although it defers to the spam laws in the
recipient's country. Canadian investigators and prosecutors are
expected to act on these complaints, extending the reach of CASL
outside of Canada's borders. As an American who deals with spam, I am
most grateful to Canada for helping provide me a level of protection
against being spammed by companies that my own government doesn't,
under [11]CAN-SPAM.

CASL isn't perfect. It has built-in grace periods for many opt-in
requirements (see FAQ => About the Law => [12]Regardless of the date
set for coming into force, will there be a phase-in period for
compliance...), periods that exempt mailers from the full rigor of
those requirements for as long as three years in some cases. Given that
the law was passed in 2010, I have to wonder whether mailers really
need this much time to bring their practices into compliance with CASL.
It shows too much respect for the much poorer antispam laws in other
countries. It also exempts some political and non-profit organizations
that I believe it should cover. As with all laws, its effectiveness
also depends on [13]how well it is enforced.

However, Canada's Anti-Spam Law is far and away the best national
anti-spam law that I've read yet. Kudos to the many legislators,
legislative assistants, consulting attorneys, and (not least) antispam
activists who made it happen.

Catherine Jefferson wrote the first spam-filtering software package,
[14]SpamBouncer in 1996.
__________________________________________________________________

Official Documents Related to Canada's Anti-Spam Law #CASL

May 2005 [15]Stopping Spam: Creating a Stronger, Safer Internet Task
Force on Spam
May 2005 [16]Recommended Best Practices for Email Marketing Task Force
on Spam

December 15, 2010 [17]An Act to promote the efficiency and adaptability
of the Canadian economy by regulating certain activities that
discourage reliance on electronic means of carrying out commercial
activities, and to amend the Canadian Radio-television and
Telecommunications Commission Act, the Competition Act, the Personal
Information Protection and Electronic Documents Act and the
Telecommunications Act
(Canada's Anti-Spam law / CASL)

June 30, 2011 [18]Telecom Notice of Consultation CRTC 2011-400

March 28, 2012 [19]Electronic Commerce Protection Regulations (CRTC)
Telecom Regulatory Policy CRTC 2012-183

August 20, 2012 [20]Enforcement Agencies Roles and Responsibilities

October 10, 2102 [21]CRTC encourages businesses to start preparing for
Canada's anti-spam legislation

October 10, 2102 [22]Compliance and Enforcement Information Bulletin
CRTC 2012-548

October 10, 2102 [23]Compliance and Enforcement Information Bulletin
CRTC 2012-549

April 03, 2013 [24]Report on the Informal Consultation of 25 February
2013 among Industry and Consumer Groups and CRTC Staff on Canada's
Anti-Spam Legislation

December 04, 2013 [25]ELECTRONIC COMMERCE PROTECTION REGULATIONS
(Industry Canada) 81000-2-175 (SOR/DORS)

December 04, 2013 [26]Order (Industry Canada) 81000-2-1795 (SI/TR)

December 04, 2013 [27]Regulatory Impact Analysis Statement (Industry
Canada)

December 04, 2013 [28]Explanatory Note (Industry Canada)

December 04, 2103 [29]CASL Frequently Asked Questions (FAQs) Industry
Canada

Older news
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CANADA'S ANTI-SPAM LAW COMING INTO FORCE JULY 01, 2014

Today, Canadian Minister of Industry the Honourable James Moore
announced CASL will come into force in June, 2014.

Read more: [30]CANADA'S ANTI-SPAM LAW COMING INTO FORCE JULY 01, 2014
__________________________________________________________________

Coverage of CASL Coming Into Force July 01, 2014

Government of Canada Announcement - Harper Government Delivers on
Commitment to Protect Canadian Consumers from Spam Backgrounder :
Building Consumer Trust in the Online Marketplace Industry Canada #CASL
Regulations Published Industry Canada #CASL Regulatory Impact Analysis
Statement Shaun Brown at nNovation Industry Canada finalizes
regulations under CASL Matt Vernhout quoted...

Read more: [31]Coverage of CASL Coming Into Force July 01, 2014

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References

1. http://www.cauce.org/
2. https://twitter.com/cauce
3. https://plus.google.com/u/0/communities/105715294209750714839
4. https://www.facebook.com/CAUCENA
5. http://www.linkedin.com/groups?gid=29002
6. http://mainsleaze.spambouncer.org/
7. http://news.gc.ca/web/article-eng.do?nid=798829
8. http://fightspam.gc.ca/eic/site/030.nsf/eng/home
9. http://mainsleaze.spambouncer.org/
10. http://fightspam.gc.ca/eic/site/030.nsf/eng/00273.html
11. http://www.business.ftc.gov/documents/bus61-can-spam-act-compliance-guide-business
12. http://fightspam.gc.ca/eic/site/030.nsf/eng/h_00050.html
13. http://liveweb.crtc.gc.ca/eng/com200/2011/s110601.htm
14. http://spambouncer.org/
15. http://www.ic.gc.ca/eic/site/ecic-ceac.nsf/eng/h_gv00317.html
16. http://www.ic.gc.ca/eic/site/ecic-ceac.nsf/eng/gv00330.html
17. http://laws-lois.justice.gc.ca/eng/acts/E-1.6/index.html
18. http://www.crtc.gc.ca/eng/archive/2011/2011-400.htm
19. http://www.crtc.gc.ca/eng/archive/2012/2012-183.htm
20. http://www.ic.gc.ca/eic/site/030.nsf/eng/00225.html
21. http://www.crtc.gc.ca/eng/com100/2012/r121010.htm#.UqcvCpEe-Dg
22. http://www.crtc.gc.ca/eng/archive/2012/2012-548.htm
23. http://www.crtc.gc.ca/eng/archive/2012/2012-549.htm
24. http://www.crtc.gc.ca/eng/publications/reports/rp130403.htm
25. http://fightspam.gc.ca/eic/site/030.nsf/eng/00273.html
26. http://fightspam.gc.ca/eic/site/030.nsf/eng/00272.html
27. http://fightspam.gc.ca/eic/site/030.nsf/eng/00271.html
28. http://fightspam.gc.ca/eic/site/030.nsf/eng/00270.html
29. http://fightspam.gc.ca/eic/site/030.nsf/eng/h_00050.html
30. http://www.cauce.org/2013/12/canadas-anti-spam-law-coming-into-force-june-2014.html
31. http://www.cauce.org/2013/12/coverage-of-casl-coming-into-force-june-2014.html
32. http://www.cauce.org/cauce/join.html
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