Canadian Business Groups on Anti-Spam Jurisdiction: It's a Problem Unless It Involves Our Spyware
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Thursday February 07, 2013
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 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:
Thursday February 07, 2013