Law Times

LAW TIMES / JULY 28/AUGUST 4, 2008 ASA: the cure for spam headaches? BY DEREK HILL For Law Times push needed for Canada to pass anti-spam legislation, which is finally on the table. Reports that wireless service S providers such as Bell and Telus will soon be charging customers who do not subscribe to a text- message bundle 15 cents for any incoming text messages — in- cluding spam — have reminded the public that spam is some- thing worth worrying about. "Now that it's made the head- line in terms of charging or not charging for spam that comes through on portable telephones — it's a bit more interesting for people who have phones, now," says Senator Yoine Goldstein, who in May introduced a pri- vate member's bill, S-235, called the Anti-Spam Act (ASA). In fact, although the head- lines are only now drawing at- tention to it, spam has always been costly for users. "Spam has gone beyond just a mere nuisance — to . . . having a significant impact economically and in terms of confidence in the online environment." says Michael Geist, law professor at the Univer- sity of Ottawa, and a member of the national task force on spam, which in 2005 unanimously rec- ommended Canadian anti-spam legislation — to no avail. Geist says spam volumes have increased to an astonishing 80- 90 per cent of traffic for many internet service providers. The lost bandwidth and strain on server capacity mean increased costs for ISPs and lost user pro- ductivity. Then, ISPs are forced to continuously invest in new anti-spam software to manage and block the traffic. "These costs are a true shift from the marketer — who in most spam cases pays nothing — to ultimately consumers, who are ultimately going to be forced to pay for this through higher ISP bills." As if that wasn't bad enough, there is an indirect and immeasur- able cost to the general economy in terms of lost confidence in the e-commerce marketplace, and in terms of the reliability of e-mail as a communications technology. "Whereas before spam became as voluminous as I suppose it is to- day, people would send e-mail with the expectation that it had been received — it was seen as a fairly reliable communications mecha- nism. And yet today, most people recognize that many legitimate messages get caught up in spam fil- ters — and they often have to fol- low up with phone calls to ensure that the message actually has got- ten through. So it's actually gotten less reliable over time." Then, don't forget that spam acts as a carrier of viruses and spy- ware and a source of identity theft. "The phishing, the use of malware and trojans as the pri- mary mechanism now to deliver spam indicates that we're really dealing with a growing amount of criminal activity as opposed to just marketing which many people see is crossing the line." Given the many recognized O'Brien's www.canadalawbook.ca LT0628 www.lawtimesnews.com pam is back in the news again — and recent news headlines may provide the "evils" of spam, the question becomes: why has Canada wait- ed so long to do anything about it? Canada is the only remain- ing G-8 country which has no anti-spam legislation, and it has taken on the reputation as a safe haven for spammers. Geist describes the govern- ment's lack of action on spam as "one of the most puzzling policy failures in recent years. "One of the most surpris- ing things for me, as a mem- ber of the spam task force a number of years ago, was that we were able to iden- tify some of the Canadian- based spam organizations," says Geist. "We knew who they were. We knew where they were located. And yet, law enforcement was either unwilling or unable to take action against these groups. And so I think that the unani- mous perspective of the task force was that law — while not a comprehensive solution — is certainly part of a necessary tool kit — part of the approach to ensure that at a minimum, there is an ability to go after Canadian-based spammers." One can only wonder what the Canadian public would do if it knew the location of these Canadian spammers; but now that there's a proposed anti- spam bill on the table, the real question becomes: what can our government do about spam? Particularly when so much of it emanates from other countries? "What government can't do is solve the spam problem," says Geist. "I don't think there's any- body out there who is of the view that passing a law is going to have the effect of eliminating spam." Goldstein says that other the U.K., of which only Russia has no anti-spam legislation. (Canada was ranked tenth.) "The reason it has not been greatly successful is that they're frustrated by their inability to go after people who spam from a foreign country," says Goldstein. "And I'm trying to obviate that problem." Amongst its various provi- sions, Goldstein's proposed Anti-Spam Act mandates cer- tain requirements for commer- cial e-mails, including the clear identification of the sender (with contact information), ac- curate subject lines and head- ers, and a functional "unsub- scribe" option. It introduces criminal sanctions, including prison sentences, and it enables injunctions by the private sec- tor to block spamming. Goldstein says the ASA will countries have had limited suc- cess with anti-spam legislation, simply due to the multi-jurisdic- tional nature of the beast. The spam-tracking web site www. spamhaus.org reported that on July 18 the top five worst spam- origin countries were the U.S., China, Russia, South Korea, and attempt to reduce spam by: (a) providing for significant penal- ties for spammers (fines of up to $500,000 for first-time offenders and up to $1.5 million for repeat offenders), (b) providing that the commercial beneficiary in Canada is equally liable with the sender (for examples, if a Nigerian sender sent spam suggesting recipients buy Viagra from a Canadian pharmacy, the pharmacy would be liable), and (c) permitting ISPs to stop all communications with foreign ISPs hosting spam, free from prosecution or suit. Geist says the hope is that if enough countries take action and clean up their spam at home, it will reduce spam loads and poten- tially shift spammers to a few pa- riah states who fail to take action. Then, as an economic sanction, e-mail traffic coming from those ISPs could block e-mail traffic coming from those countries. Once the private member's bill is passed by the Senate, it will be dealt with by the House of Commons. Goldstein is optimistic about its future. "Since spam has become part of headlines at the moment, I think the public interest and the general interest will be fairly sig- nificant, in terms of getting some anti-spam legislation through." "Putting a private member's bill out on the table here has the ben- efits of crystallizing the issue and effectively forcing the government to either move or make it more apparent why they are unwilling to move," says Geist. LT MOVES AND SHAKES Canadian Lawyer's Moves and Shakes section has moved online. Send your notices of new hires, lateral moves, mergers, breakups, award winners, appointments and any other news about yourself or your fi rm to moves@clbmedia.ca. Go online to www.canadianlawyermag.com to read what your colleagues are up to. It's updated daily. O'BRIEN'S INTERNET: Experience the phenomenal power and flexibility of ... O'BRIEN'S Now you can access and e-mail forms faster and more efficiently than ever! Why limit yourself? O'Brien's Available on the Internet: Available in print only: Encyclopedia of Forms, Eleventh Edition Internet access included with your print subscription O'Brien's PAGE 13

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