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ECPA Posts

The Cost of Proroguing on C-27

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Monday January 25, 2010
The Globe ran a story over the weekend that estimated the cost of proroguing on Bill C-27, the anti-spam bill.  It points to the hours spent debating the bill and the hundreds of thousands of dollars spent working toward its introduction.
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Anti-Spam, Lawful Access To Die With Parliament Prorogation

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Wednesday December 30, 2009
Reports this morning indicate that the government plans to prorogue Parliament, effectively shutting it down until March. One of the effects of prorogation is that all bills that have not received royal assent die and must be restarted from the beginning when a new Parliament begins.  While the government can try to move bills with broad support quickly back through the process (reinstatement requires approval in the House), the delays are significant.  Only 27 of the 64 Government bills introduced during the current session have received royal assent, leaving 37 bills in need of a restart.  Of those, at least four involve technology law: C-27 (anti-spam, electronic commerce), C-46 (lawful access), C-47 (lawful access), and C-58 (ISP child pornography reporting).  The anti-spam bill was the most advanced, having cleared the House of Commons and slated for review by a Senate Committee early in the new year.
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ECPA Receives First Reading in the Senate

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Thursday December 03, 2009
The Electronic Commerce Protection Act received first reading in the Senate on Monday with plans for second reading tomorrow.  It will then go to the Senate Standing Committee on Transport and Communications for review.
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ECPA (C-27) Passes House of Commons, Moves to Senate

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Tuesday December 01, 2009
The Electronic Commerce Protection Act, Canada's anti-spam bill (Bill C-27) passed through the House of Commons yesterday as a motion to support sending the bill to the Senate received approval.  The bill received all-party support but will undoubtedly face an intense lobbying campaign at the Senate.  Copyright lobbyists, real estate agents, and marketing survey companies were among the most aggressive lobby groups seeking changes when the bill was considered by the Industry Committee.  Clement stood his ground and the resulting bill is a good one.  Indeed, the lobbying efforts and attempts to weaken the bill did not go unnoticed.  During yesterday's discussion in the House, NDP MP Brian Masse, the party's representative on the Industry Committee, noted "when it gets to the Senate we will see whether or not there is going to be another lobby effort either to kill the bill or to weaken it some more."

Meanwhile, Liberal MPs who failed to garner support for their reforms were still pressing for changes.  MP Siobhan Coady stated "while the Liberal Party believes the bill remains unnecessarily restrictive to legitimate business in its approach in many regards, we will support the bill at third reading as action must be taken against spam. We will monitor the legislation closely going forward to ensure that it does not stifle legitimate electronic commerce in Canada."  Getting C-27 through the House is a big step, but the lobby attempts to water down the bill will no doubt be back for another round as the bill hits the Senate.
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Industry Committee Issues C-27 Report

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Thursday October 29, 2009
The Standing Committee on Industry, Science and Technology has issued its report on Bill C-27.  The report includes all the changes to the anti-spam bill, the Electronic Commerce Protection Act.
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Anti-Spam Bill Passes Committee Without Copyright Lobby Spyware Provision

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Wednesday October 28, 2009
Bill C-27, the anti-spam bill, passed through the Industry Committee late Monday with the bill largely intact.  Indeed, Industry Minister Tony Clement was true to his word as the several provisions that would have watered down the legislation were dropped (third party referrals, exceptions for survey companies and self-regulated industries) as was a provision promoted by the copyright lobby that would have permitted unauthorized access to personal computers in certain circumstances.

The Liberals on the committee did attempt to introduce several watering down provisions, but each failed.  First, the third party referral provision - dropped by the Conservatives - was brought back by the Liberals as Marc Garneau warned that it was important for realtors.  The amendment was ruled out of order.  Second, a provision to tighten the provision on false subject headers, so that it would only apply in more limited circumstances.  The proposed amendment was defeated.  Third, the Liberals introduced a provision to limit the scope of spyware to specifically enumerated concerns. It too was defeated.

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Government Commits to Withdrawing Lobby Spyware Changes

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Sunday October 25, 2009
Bill C-27, the anti-spam bill, is nearly through the Industry Committee with a limited number of changes.  The Liberals have already stated that they would not be bringing forward the amendments promoted by the copyright lobby that would have permitted unauthorized access to personal computers in some situations.  The same issue arose during Question Period in the House of Commons on Thursday.  When asked about it by NDP MP Brian Masse, Industry Minister Tony Clement confirmed that the Conservatives would not bring forward a similar motion.

At Wednesday's hearing, there were a couple of changes instigated by Bloc. First, a specific exception for political parties was inserted into the bill.  This is arguably unnecessary since the bill only covers commercial activity.  Second, the Bloc succeeded in extending the period of a business relationship from 18 months to two years.  The clause-by-clause review should conclude on Monday.
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Liberals To Drop Controversial Copyright Lobby Spyware Amendments

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Tuesday October 20, 2009
With the Industry Committee now scheduled to contact its final clause-by-clause review of Bill C-27 on Wednesday, sources in the Liberal Party advise that its MPs plan to withdraw several controversial copyright lobby-inspired amendments to the computer program and spyware provisions. Since first reported on Friday, thousands of emails and letters protesting the proposals have been sent to Industry committee MPs from all parties.  Sources indicate that the Liberals will withdraw three motions actively promoted by the copyright lobby:
  • a new definition of computer program that would have excluded surreptitiously installed DRM from the ambit of the bill
  • an exception to a ban on the "collection of personal information through any means of telecommunication, if the collection is made by accessing a computer system or causing a computer system to be accessed without authorization" in cases related to investigations of breach of agreements or laws
  • an exception for telecom providers to the requirement to obtain express consent before users install programs on their computers
While anything can be happen over the next 24 hours, the decision to withdraw the motions - in combination with the Conservatives reversal on several exceptions that watered down the bill - should mean that the Electronic Commerce Protection Act is preserved as a consumer protection bill as it gets through committee.  However, the lobbying to water down the bill will no doubt continue as the bill moves to the floor of the House of Commons and then on to the Senate.
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Canwest on Conservative Backtracking on Spam Exceptions

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Tuesday October 20, 2009
Canwest covers the Conservatives' decision to scale back spam bill exceptions that were floated less than two weeks ago.
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Conservatives Reverse on Watering Down Anti-Spam Bill

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Monday October 19, 2009
The Conservatives reversed course on plans to water down Bill C-27 in an aborted clause-by-clause meeting today that promises another 48 hours of intense lobbying on the anti-spam bill.  Parliamentary Secretary Mike Lake opened this afternoon's meeting by putting the Government's proposed changes into the public record. Most notably, the Conservatives have dropped their support for exceptions for survey and marketing companies (a huge loophole), self-regulated organizations such as the Law Society of Upper Canada, and third party referrals.  This brings the bill much closer to its original incarnation with some minor tweaking and clarifications.  It has also unleashed a new round of intense lobbying with the Bloc moving for an immediate adjournment of today's meeting.  The motion was supported by all opposition parties.  The clause-by-clause review will now take place on Wednesday.

Assuming support for the Conservatives' changes, the remaining major issue is the spyware amendments promoted by copyright lobby groups such as the music and software industries.  Lake indicated that the Conservatives were prepared to accept a change with respect to email addresses, but sources say that there is no support for the copyright lobby's demands for carve outs for DRM in the computer program definition and for collecting personal information without authorization from users' computer as part of investigations into alleged contractual or legal breaches (see this post for more detail).  The question over the next 48 hours is whether the Liberals will reconsider their ill-advised motions and if all parties will resist the intense lobbying efforts to bring back changes that would water down the bill.
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