One year ago, Canada’s National Task Force on Spam presented then-Industry Minister David Emerson with its report on how Ottawa could assist in the fight against spam (I was a member of the Task Force). At that time, Canada was without a national spam law and was considered to be among the top six sources of spam worldwide. Moreover, the divergent response from Canada’s Internet service providers – some adopted aggressive action to block and filter spam, while others did little to stem the growing tide of spam leaving their networks – constituted an additional cause for concern.
Twelve months later, Maxime Bernier, the new Industry Minister, can almost be forgiven for believing that the spam problem has largely disappeared. Spam filters have become increasingly effective in limiting the amount of spam that lands in users’ inboxes, while Canadian ISPs have become so good at blocking spam messages before they leave their networks, that Canada was recently dropped from the "dirty dozen" list of top spamming countries.
Despite the successes on the technical front, first impressions can be deceiving. Global spam volume continues to increase, with recent surveys indicating that 80 percent of all e-mail is now spam. Spam has also become far more dangerous as many messages secretly contain viruses or other hidden programs that can unwittingly turn ordinary Internet users with broadband connections into large-scale spammers.
Spammers have compounded the problem by branching out beyond traditional unsolicited commercial email. Millions of blogs have been hit with spam postings known as "splog", Internet telephony is facing a growing spam problem referred to as "spit", and phishing emails, which deceptively send users to phony websites in order to extract personal information, are credited with being responsible for hundreds of incidents of identity theft.
Unfortunately the Canadian legal framework has failed to keep pace with the new spam-related concerns. While Canada stands pat, many countries, including New Zealand, Hong Kong, and Japan have introduced new anti-spam laws over the past year. In addition, Australia is currently reviewing the effectiveness of its well-regarded anti-spam law and many U.S. states have enacted anti-spam statutes designed to supplement the federal Can-Spam Act.
The need for stringent anti-spam laws has become particularly important in light of the growing emphasis on cross-border enforcement. Spammers regularly use computers in several countries to send their email and attempt to hide their tracks by routing their profits through multiple jurisdictions. While Canada has participated in the global dialogue on enforcement, the absence of a comprehensive anti-spam law could hamper authorities’ ability to pursue spamming activity that features a Canadian component.
Even the technical successes may be short-lived. By focusing on filtering spam or blocking it before it leaves the network, Canada has addressed the symptom rather than the problem. This technical approach clearly does not eliminate spam, but rather only masks it from Internet users, leaving everyone vulnerable to spammers who invent new ways to circumvent ISP filters and blocking techniques.
The long-term elimination of spam requires action against the spammers themselves. The Task Force identified several areas where Canadian law falls short, including privacy legislation, which is ill-suited to deal with spam since it does not include tough penalties that would serve as an effective deterrent; the Criminal Code, which applies to clearly fraudulent or criminal spam, yet limited resources has kept spam off law enforcement’ s radar screen; and the Competition Bureau, which has launched several anti-spam actions, but only against the most obvious cases of fraud or misleading conduct.
With many other countries continuing to aggressively target spammers, Canada would do well to act on both the domestic and international levels. Domestically, it should remove the uncertainty associated with the current anti-spam legal techniques by upgrading domestic legislation with tough penalties against spam.
On the international front, Canada should increase its presence by working on cross-border enforcement initiatives. Moreover, it should consider providing anti-spam assistance to developing countries, who are frequently unable to deal effectively with the spam overload.
The recent improvement in spam filtering may have the unintended consequence of decreasing public pressure for anti-spam action since the full impact of spam may be hidden from Internet users. However, with spammers branching out to computer viruses and identity theft, and ISPs reporting that four out of every five email messages are now spam, the risks associated with problem continues to increase.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at firstname.lastname@example.org or online at www.michaelgeist.ca.