09 December 2010
Honourable senators, I find myself having to support this bill. When that began to dawn on me, I thought, "What is going on?" I remember that as recently as a year ago I supported another government bill. I thought, "How often will that happen?" Then I realized that, thanks to prorogation, it was the same bill, so I was okay. I am maintaining my pure record, I think, of not supporting more than one government initiative a year.
An Hon. Senator: You have only made one mistake, then.
Senator Mitchell: That is right. It has been a pretty good year.
However, now I am in tremendous trepidation when I say that I support something, because surely it will be just days before Senator Tkachuk will read back my words in Hansard, trying to make some obscure point, saying, "My gosh, the senator supports something the government is doing; it must be right."
Senator Tkachuk: I must have touched a nerve. Sorry about that.
Senator Mitchell: However, I will say that Senator Tkachuk will have much more trouble finding what I say in this Hansard than in the Alberta Hansard, because the Alberta Hansard has a search function. If only we could get a search function here. However, that is not what I am talking about.
I have enjoyed working on this bill. I had a great briefing from the department. I was surrounded by intelligent public servants. I felt secure, because there was a political representative from the minister's office just to ensure that those public servants were not telling me anything that they should not. That was reassuring.
I will say that Senator Oliver has been excellent to work with. We discussed a few issues that we felt were worthy of discussion. In fact, I think some changes have been made to this iteration of the bill that were evident after our debate of the previous bill a year ago. This underlines the importance of the work the Senate does and the fact that the government would be wise to accept our amendments and comments on these bills perhaps a little more often than they do. They have been reluctant to do that, so it is nice to see that they have done it this time.
I will not go into a great deal of detail. Senator Oliver explained the bill exceptionally well.
This is a bill designed to protect electronic commerce by prohibiting the sending of electronic commercial messages without prior consent. It is an anti-spam bill. I used to think that spam was simply too many emails. Then I became a senator, and I get so many emails that I realized that could not possibly be it. However, I did limit my view of spam to emails, but of course it is much broader than that.
One of the key problems associated with spam is the downloading of unwanted and sometimes dangerous software. This bill is comprehensive in the way that it addresses what we have commonly called "spam."
It is not too strong a word to say that spam is dangerous to our economy and to business. Spam is unsettling and distracting to business. It can lead to or actually involve criminal activity, so it has profound implications in that regard. Of course, spam can be a real affront or offence to privacy.
Canada, unfortunately, is one of the last Western industrialized nations — I think the third-last OECD nation and the last G8 nation — to have this kind of legislation, so it is long past overdue. We have increasing problems in relation to our reputation abroad. In fact, these problems are compounding even as we speak, with Mr. Baird in Cancun unrelentingly criticizing China, with whom we would one day hope to have good, strong trade relations, which are being jeopardized by this kind of activity. We have increasingly had problems with our international reputation over the last five years. This is at least one problem we can fix. We have had the reputation of being a haven for spammers, but we will get over that, I hope.
This is a classic case of non-partisan — or bipartisan, to use an American expression — cooperation and collaboration. This arises out of a number of events.
First — and I want to take credit for this on behalf of the Liberal Party — it was the Liberal government that established the Task Force on Spam in 2004, which ultimately led to this legislation. The process was augmented, enhanced and improved by the work of Senator Oliver, who had worked on a number of private members' bills, and by the work of Senator Goldstein, who is no longer with us. This is the culmination of efforts from both sides, and I believe that all those involved are to be congratulated.
A number of prohibitions under Bill C-28 are worth emphasizing. This bill will prohibit the sending of unsolicited commercial electronic messages in, as I said, both emails and software. The legislation describes the meaning of "unsolicited." The word used is "consent." The legislation requires express consent on behalf of people to receive whatever the message is in order for it not to be defined as spam. Express consent is considered to exist only when an individual chooses to receive or opts into a process of receiving email electronic communication.
Implied consent is limited. Someone cannot assume that one has implied one's consent, except under very limited and restrictive parameters, which is a good thing. Implied consent is intended for existing business and non-business relationships.
False and misleading representations online, including websites and various other kinds of electronic addresses, are prohibited. The use of computer systems to collect electronic addresses without consent is ruled out by this legislation. The unauthorized altering of transmission data, the installation of computer programs without consent, and the unauthorized access to a computer system to collect personal information without consent are all absolutely prohibited as well.
There are some exemptions so that this legislation does not become overly onerous and inappropriately applied. The bill only covers unsolicited commercial intent; it does not include political, family or personal relationships. The bill also allows for the automatic downloading of upgrades of legitimate software.
Several other provisions in the bill are worthy of note. Surprisingly, the bill uses a regulatory approach instead of a criminal approach. I expect the government will feel uneasy that its work is not quite complete and that there will be legislation in the future to provide for mandatory minimum sentences for whatever it is that people should not do under this bill. However, at this time, common sense prevailed to say that this should be done quickly, that it had to be done quickly, and this was facilitated. That is not to say that the bill is unreasonable in its rigour in relation to fines. An individual who transgresses the bill, or what will be the act, can be fined $1 million; and a company that transgresses the act can be fined $10 million.
The regulatory approach will be coordinated through the CRTC, the Office of the Privacy Commissioner and the Competition Bureau. The bill also creates a Spam Reporting Centre where harmful Internet messages can be sent and investigated by relevant authorities. It will store and analyze spam, and ensure access to the spam database by all three enforcement agencies.
The bill also includes a private right of action so that, as a consumer, a business person, a business, or an Internet service provider, one can take action against violators; and the bill provides for coordination among the three enforcement agencies and international partners.
One of the weaknesses in the bill a year ago was brought to our attention by companies like RIM. RIM met with me — the meeting is probably registered under the act as lobbying — and it was very informative. RIM pointed out that the way the act read previously, they could easily be accused of and held liable in civil courts for accessing information on what would generally be considered public websites that are used by spammers. However, the spammers could have made those websites off limits to that by simply registering them or indicating on the website that they were unauthorized if people did not have prior permission to use them. That would make it almost impossible for companies like RIM to pursue spammers who might literally be destroying their system, and to pursue them quickly.
The government listened to that input and made the point of changing "unauthorized" to language that said that it would exclude only those activities that were in contravention of an act of Parliament.
That is a happy change for companies like RIM, Research In Motion, and demonstrates a legitimate, useful and welcome response by government to that kind of input and to input from this Senate chamber.
For those who would be concerned, because there was concern that this could mean that companies could pursue private information, get past a certain wall or barrier to people's personal computers, et cetera, that is not the case. This remains limited, and I have been convinced, in the study that I have done, that in fact privacy will be upheld and certainly not jeopardized by the way in which this bill is structured.
Honourable senators, I have a couple of questions or concerns. First, if these three bodies or agencies are to make it work, they will need some money, so we will need to ensure they have adequate resources. I am concerned they may not. The government is exceptionally good at making announcements, passing bills, confusing the fact that just because it is in the press it does not mean it will actually happen.
Of course, the legislation also provides for a national coordinating body that "will coordinate public education and awareness efforts, track and analyze statistics in trends and lead policy oversight and coordination." It sounds like a great thing we could also set up for climate change — track trends, public education, do analysis. I just had to get that in.
What sort of resources will be dedicated to this national coordinating body? Again, we want to ensure, that as important as this initiative is, this bill is supported by sufficient resources to make it work or it is nothing more than a public relations exercise and will not get us off the list of those concerned with Canada around the world and our state of review and management, if you will, of this important electronic data communication issue.
Honourable senators, if this bill gets through committee without any particular problems and we squeak through third reading without anything else coming up, I will actually vote for this bill