Canada’s anti-spam legislation took effect at the beginning of the month, sparking a steady stream of critical opinion pieces calling it an absurd solution to a mostly non-problem or “ludicrous regulatory overkill.” The criticisms generally boil down to three claims: spam isn’t a big problem, the law is ineffective because most spam originates outside Canada, and the law is overbroad because it targets legitimate businesses alongside fraudulent spam. I think all three criticisms are wrong. This post addresses why spam is still a problem and how the law will help. A second post tomorrow tackles the broad scope of the law, arguing that it is better understood as privacy legislation that fairly apportions the costs associated with electronic marketing.
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Industry Minister James Moore announced new spectrum policy measures yesterday designed to help foster the creation of a viable fourth national wireless competitor. The policy features an accelerated timeline for another spectrum auction (AWS-3) and a significant set-aside of spectrum for new entrants such as Wind Mobile. When combined with the government’s policies on domestic roaming, tower sharing, and foreign investment, it is clear that it intends to continue to use the policy levers at its disposal to encourage greater wireless competition. For this, the government deserves kudos, as its emphasis on fostering greater competition is the right thing to do.
While the announcement generated criticism from the usual suspects who want Canadians to believe that the market is already competitive (or incredibly might somehow become more competitive if it shrunk down further to two competitors), it is worth revisiting the Competition Bureau’s analysis of the wireless market. Earlier this year, Canada’s independent agency responsible for competition in the marketplace concluded that the Big 3 enjoy “market power”, which it defines as “the ability of a firm or firms to profitably maintain prices above competitive levels (or similarly restrict non-price dimensions of competition) for a significant period of time.” In fact, the Bureau commissioned its own study of the market on domestic roaming and found that a more competitive market would deliver approximately $1 billion in benefits to the Canadian economy.
As if on cue, the Big 3′s most recent quarterly investor calls confirmed that they face little Canadian pricing pressure.
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Trade agreements have emerged in recent years as one of the federal government’s most frequently touted accomplishments. Having concluded (or nearly concluded) free trade deals with the likes of the European Union and South Korea, senior government ministers such as International Trade Minister Ed Fast and Industry Minister James Moore have held dozens of events and press conferences across the country promoting the trade agenda.
The next major agreement on the government’s docket is the Trans Pacific Partnership, a massive proposed trade deal that includes the United States, Australia, Mexico, Malaysia, Singapore, New Zealand, Vietnam, Japan, Peru, and Chile. While other trade talks occupy a prominent place in the government’s promotional plans, the TPP remains largely hidden from view. Indeed, most Canadians would be surprised to learn that Canada is hosting the latest round of TPP negotiations this week in Ottawa.
My weekly technology law column (Toronto Star version, homepage version) argues the secrecy associated with the TPP – the draft text of the treaty has still not been formally released, the precise location of the Ottawa negotiations has not been disclosed, and even the existence of talks was only confirmed after media leaks – suggests that the Canadian government has something to hide when it comes to the TPP.
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With Canada’s anti-spam law now in effect, many are starting to ask about enforcement of the law. While no one should expect the law to eliminate spam, the goal much more modest: target the bad actors based in Canada and change the privacy culture by making opt-in consent the expected standard for consumer consents. The CRTC, the lead regulatory agency, has made it clear that the fear-mongering of million dollar penalties for inadvertent violations is not going to happen. Chair Jean-Pierre Blais recently stated:
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