Yesterday’s post on the coalition of business lobby groups support for a spyware provision in the Canadian anti-spam law attracted considerable attention, with many shocked at the breadth of the proposal. While the post focused on how the provision could be broadly interpreted to permit spyware to track copyright infringement, block websites, or to stop attempts to access wireless networks without authorization, it did not discuss yet another serious concern involving the jurisdictional scope of the provision. As noted in the post, the lobby groups, led by the Canadian Chamber of Commerce, the Canadian Marketing Association, the Canadian Wireless Telecommunications Association and the Entertainment Software Association of Canada, have asked the government to create an exception for the express consent requirement on software installation for:
a program that is installed by or on behalf of a person to prevent, detect, investigate, or terminate activities that the person reasonably believes (i) present a risk or threatens the security, privacy, or unauthorized or fraudulent use, of a computer system, telecommunications facility, or network, or (ii) involves the contravention of any law of Canada, of a province or municipality of Canada or of
a foreign state;
The last five words of this provision could prove to be the most important, since they permit the installation of computer programs without express consent based on the belief of a contravention of the law of a foreign state. After years of fighting for a made-in-Canada copyright approach, this provision would create the prospect of enforcement of U.S. or other foreign laws through surreptitious installation of computer programs. Beyond copyright law, the same provision could presumably be used to justify Chinese spyware supposedly seeking to prevent violation of Chinese laws (perhaps involving groups targeted by that government).
What makes this provision particularly ironic is that elsewhere in the business lobby group document, the organizations complain that the law:
applies to computer programs that are installed on computers anywhere in the world by or acting on the direction of a person located in Canada. This wide extra-territorial reach runs counter to CASL’s stated objective to promote the efficiency and adaptability of the Canadian economy.
In response to this concern, the groups call for an exception for all computer programs installed on a computer system outside of Canada. Leaving aside the potential for this loophole to turn Canada into a base for spyware activities (so long as they avoid installing on Canadian computers), it is incredible to find these groups arguing against applying the law for Canadian-originated spyware outside of the country but simultaneously arguing for a provision to allow for the installation of such programs in Canada to enforce foreign laws.
As for who these groups are, a reminder that the group of 13, led by the Canadian Chamber of Commerce, consists of:
- Association of International Automobile Manufacturers of Canada
- Canadian Bankers Association
- Canadian Chamber of Commerce
- Canadian Federation of Independent Business
- Canadian Marketing Association
- Canadian Wireless Telecommunications Association
- Canadian Vehicle Manufacturers’ Association
- Electro-Federation of Canada
- Entertainment Software Association of Canada
- Information Technology Association of Canada
- Interactive Advertising Bureau of Canada
- Magazines Canada
- Retail Council of Canada
The comment period on the draft regulations may have closed, but it is not too late to tell Industry Minister Christian Paradis or your local Member of Parliament to reject demands that would gut the anti-spam bill and legalize spyware.