Canadian Anti-Spam Law: High Time or Orwellian Nightmare?

IMG_5851_2lowres2011 was a rough year for our human race, with a bone-weary world fighting civil rights abuses on many fronts and people, sick and tired of perpetual economic decline, taking to the streets in protest of an economy gone sour and a world mired in seeming inequity. So it’s fitting, perhaps, that the year following the virtual collapse of several high-profile national economies and the birth of the Occupy Movement begins with a new type of global unrest. In a year that’s already shaping up to be the proving ground for new – and troubling, some might say – legislation on free speech and intellectual property infringement, it’s appropriate, perhaps, that the Canadian Anti-Spam Law of 2010 poises to graduate from simply being a law to actually being enforced.

The year 2012 may very well be shaping up to be the year historians will view as a defining moment for free speech, Internet rights, and the role of government in cyberspace. While some might view that as a contentious and even ludicrous statement, stop and think about what’s happening at this juncture of our journey through space on this little blue-green ball of dirt. It doesn’t take a Harvard lawyer to see what’s going on and it makes one wonder:  if we haven’t met that bugaboo that plagued certain eras of the 20th Century; the chimera that saw the rise of fascism, forced the Cold War on a war-weary human race, and inspired a generation to embrace civil disobedience and fight to the death for equal rights. You know, the same demon that inspired George Orwell into action when he penned 1984. Now, some might contend that all of what they’ve just read is nothing more than the product of a paranoid delusion, and they might have a point with no evidence to back up these statements, so let’s take a quick look at what’s been going on of late.

As protestors clash with police in Greece over the austerity deal that hopes to save the country’s economy from complete collapse, elsewhere protestors took to the streets to battle another type of collapse: the ACTA treaty, an eight nation anti-piracy accord that, if ratified, threatens to turn the Internet into some Big Brotherish world where your every move is being watched, if you’re to believe the protestors. This, of course, is right on the coattails of another type of protest, launched for one day on January 18 by Wikipedia and others, to protest pending legislation in U.S. Congress.

And as all this is going on, it’s easy to forget that in late 2010, the Canadian government made into law a highly controversial bill popularly known as the Canadian Anti-Spam Law (CASL). While there has been a fair amount of discussion over the law and its unpopularity, the general consensus was that while it was law, it wasn’t really doing anything, so people tended to forget about it. But the Canadian government hasn’t forgotten about it, and it’s generally thought the law will go into enforcement this year; nor have Canadian companies, which are deeply troubled about the implications of the law.

So what are the implications? Well, first is the law’s interpretation of what e-mail spam is. While our U.S. neighbors to the south have anti-spam legislation that requires users to opt out of e-mail spam, the Canadian version of the law states that it’s spam if the user hasn’t opted in. That, combined with incredibly stiff penalties – up to $1 million per infraction for individuals, and up to $10 million per infraction for organizations – are troublesome, since most analysts contend that the law has enough gray area that people could be in violation of the law without intending to do so. The fact is that the Canadian government hasn’t said much about how far it intends to go in enforcing the law and levying penalties, so it’s only natural that people and companies – like Canada’s national newspaper, The Globe and Mail, are a little bit worried about the implications.

No one disagrees that e-mail spam is anathema to everything we do. We all loathe it and revile it, and we’d all cheer if one day the spammers of the world all came down with some unfortunate illness that made their special parts fall off. But with the world struggling – really struggling – with what’s free speech and what form of monitoring and enforcement is acceptable, this new law only worsens the situation, and it’s going to open a whole other debate – about what is spam, and what isn’t.

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