Proceedings of the Standing Senate Committee on
Transport and Communications
Issue 8 - Evidence
OTTAWA, Thursday April 29, 2004
The Standing Senate Committee on Transport and Communications met this day at 10:48 a.m. to examine Bill S-2, to prevent unsolicited messages on the Internet.
The Honourable Joan Fraser (Chairman) presiding.
The Chairman: Today, we begin our study of Bill S-2, to prevent unsolicited messages on the Internet. The short title of the legislation is the Spam Control Act.
The bill is an initiative of our colleague, the Hon. Donald H. Oliver, and it is therefore with considerable pleasure that I welcome Senator Oliver back to the committee today. I say ``back'' because he has been both chair and deputy chair of this committee, so he knows us, and the way we work, well. We do not have to explain anything to him. We look forward to his introductory statement about his bill and then we will ask him questions.
The Honourable Donald H. Oliver, Sponsor of the Bill: Thank you very much. I must say it is a special privilege to appear before you. You have done a great job as chairman of this committee. I am very pleased with the work you have been producing, and I am very interested in the media study you are doing.
Honourable senators, the reason that I am here is that a while ago, my wife, after being out of her office for some 10 days, told me, ``Guess what, it took me almost an hour and a half to delete the spam on my computer before I could begin work.'' It really took a lot of time.
So I started to think about it, and then I began to look at what I was getting in my office here. I looked at the types of spam I was getting and said, ``Gee, I think I will do some investigation into the state of the law in Canada and what can be done about this problem.'' I was frankly shocked by the number of unwanted commercial e-mails that I was receiving.
Before actually drawing up a bill, I interviewed and had discussions with a wide variety of people. To give you some idea, I talked to several lawyers, both here and in other parts of Canada; I talked to a number of consumers; I talked to a number of Internet users and a number of politicians, both provincially and federally; I talked to a number of media people, particularly in Quebec, where this is a major concern; I talked to an ISP association, their president and directors, and a number of ISP users and owners; I talked to Microsoft.
I also talked to Industry Canada. I had briefings in my office from Mr. Binder of Industry Canada. I talked with Mr. Simpson, who is a world authority on spam. I had a private meeting with the Minister of Industry, Madame Robillard, and her chief of staff and many others. Therefore, I did not come to the drafting of this lightly and without having given it serious thought.
With that background, one of the things that I found is that Canada does not have any laws in place specifically designed to reduce or to track the source of unwanted commercial e-mails. Everyone to whom I talked told me that there is no single answer to this problem. You cannot simply bring in a piece of legislation and you cannot find a filter to put on your computer to stop it all. You really need a multi-faceted approach.
There are a number of people and groups you have to bring into play. For a multi-faceted approach, you need ISPs, Internet service providers; you need ESPs, e-mail service providers; you need e-mail marketers; you need businesses; you need anti-spam organizations; you need consumer protection associations; you need anti-spam solution providers; and you need to look at a legal and regulatory approach. You have to look at education and awareness, at technical solutions and so on.
I should tell you that I am going down to Redmond, the headquarters of Microsoft, in less than a month. One of the people I will be meeting there is their top scientist, who is working on advanced filters for spam. Each day the process is ongoing, but I can tell you now that there is no person or place in the world that has a filter that will filter out all spam. We have not reached that level of technology yet.
In Canada, we do not have any law in place that is specifically designed to reduce or track the source of spam. We need a multi-faceted approach. We do have some laws on our books, however. For instance, we have a Criminal Code and we can, in fact, lay a charge for those sending large volumes of spam that endanger public safety. That is in our criminal laws already. However, many fraudulent e-mails emanate from countries outside Canada, and therefore it is hard for us to prosecute.
In August 1999, a working group on electronic commerce and consumers was created to work on principles of consumer protection and e-commerce. Clause 7 said: ``Vendors should not transmit commercial e-mails without the consent of consumers or unless the vendor has an existing relationship with a consumer.'' The problem with that statement is that it was not mandatory, and therefore not enforceable, so that really did not help us very much.
On January 1, 2003, we had the Canadian Personal Information Protection and Electronic Documents Act. That is a new bill here in Canada. Electronic e-mail addresses are personal information, but this applies only in Canada, so again, commercial, bulk, unwanted e-mail coming to Canada but originating outside the country is not caught by that particular act.
In order to enable ISPs, law enforcement agencies and individuals to demand that spammers stop sending information, with a right to bring action against them, I reached the conclusion we do need some type of legislation. We have to do that, along with filtering software, consumer education and some self-regulatory codes.
What types of spam are we talking about, and how great is this problem becoming? The average Canadian, according to one report, receives about 150 e-mails a week. We know that more than 50 per cent of those e-mails — in fact, it is approaching 60 per cent — are spam. That is in the average household in Canada today. What form does that spam take?
One statistic — and there are many statistics, depending upon which country you go to — says that 33 per cent of those are for products like inexpensive ink cartridges, pens, or something like that, that you did not want. Another 24 per cent are financial offers — do you want to refinance your house and get a cheap mortgage, or do you suddenly need cash or do you need some kind of financing? — and 18 per cent are pornographic or information for sex sites. Five per cent are blatantly fraudulent. I refer to the kinds of letters that you might get, some emanating from Africa, saying, ``We need you to give us your bank account number. Someone has taken some money from me and you will get $20 million if you will just give me your bank account number and deposit the money in there.'' We receive these on almost a daily basis and they are just outright fraudulent.
When I first started getting those years ago, I used to send them, as a matter of course, to the RCMP. They finally phoned me and said, ``Please do not send us any more of those, we get so many of them every day, just ignore it.''
Senator Corbin: You were spamming them.
Senator Oliver: That is right.
Next, 20 per cent are advertisements for various things that we did not ask for and did not want and that just did not fall into any of the other categories. That is the type of thing that makes up spam.
What is the role of the Internet and spam in our lives now, and why should this be so important to us? As the number of users increases, the Internet is gradually becoming an integral part of everyday life for most Canadians. Usage is expected to continue to grow. The number of Internet users in the OECD area was 231 million in the year 2001, and over 591 million worldwide by 2002. It is expected, worldwide, that the usage will be around 709 million to 945 million before the end of 2004.
Many market analysts have viewed e-mail as one of the killer applications for the growth of the Internet. E-mail is quickly joining the telephone as an essential communication tool in people's commercial and social lives. E-mail has become a powerful medium, not only for idea and information exchange, but also for e-commerce, including direct marketing.
I just came from the Standing Senate Committee on Agriculture and Forestry. One of the witnesses there was telling us that one of the ways that people are now buying wine is by going on the Internet and using e-commerce to purchase it directly. The problem in Canada is that we have interprovincial trade barriers, so it is hard to buy wine from British Columbia in Nova Scotia.
With its role as a quick and relatively inexpensive form of communication, e-mail has developed into one of the primary communication mechanisms for personal and business use, both in Canada and abroad.
The International Data Corporation, IDC, estimates that there are about 700 million electronic mailboxes in the world today and that that number will grow to 1.2 billion by 2005. That is a tremendously fast rate. IDC estimates that e-mail volume will continue to expand rapidly. Estimates are that some 31 billion messages were sent over the Internet in 2002, and that the number will reach or surpass 60 billion by the year 2006.
Along with the growth of the Internet and e-mail, there has been a dramatic growth in bulk, unsolicited electronic messages, or spam, over the past few years. Spam can originate from any geographic location across the globe because Internet access is available in over 200 countries. The ease with which spammers can change the originating server for their messages means that even if the domestic e-marketing culture discourages spam or legal restrictions are in place, spam messages can easily be sent from other locations. Despite the increasing deployment of anti-spam services and technologies, the number of spam messages continues to increase rapidly.
You may say, ``Why is that? Who is downloading and using the material on Viagra and enlarged breasts?'' It does not matter. So many spam messages are being sent that if .001 per cent of the people buy the product, you can make $1,500 per week. There are enormous profits being made on this. However, you must realize the volume that an individual spammer can send out in a day. They can send tens of millions of messages. It only takes a handful of people, say 29, around the world to click and buy a product for the spammer to make a profit.
One of the other big problems is the difficulty in identifying a spammer. Mr. Richard Simpson from Industry Canada went to Geneva in February of this year to attend an international spam organizational conference. He gave me a number of the papers that were handed out at this OECD conference. One is this booklet that I have here. I will read a paragraph from it to tell you a little about the difficulty in identifying spammers. It points out the reason we need a multi-faceted approach to this problem. I quote from paragraph 29 of the booklet.
Identifying spammers is difficult. A number of methods are used by spammers to hide their identities. Source addresses are randomized so that they are not easily identified. Spamware programs automatically generate false headers and return address information.
If I were to receive an e-mail from my wife, it would show ``L. Oliver.'' I would know from where that came. However, an e-mail might say ``L.M. Oliver.'' The name might be changed slightly. It might be for some kind of body enhancement.
Spammers are very clever. They falsify the headers so you cannot identify the sender. They are masters at that. They keep changing the sender identification. They may change it every hour or several times a hour. They will change the identity and it is hard to trace.
False headers allow spammers to ignore recipients' requests to be removed from e-mail lists and obscure their identities by making themselves untraceable. Other spammers scan the Internet for open relays in foreign countries so that their messages cannot be traced. According to Spamhaus, direct sources account for some 50 per cent of spam received by Internet mail relays worldwide. The other 50 per cent is received via third party exploits such as open proxies and open relays. In other words, they go into the market and try to obtain some of these free-floating names and identifiers so they cannot be traced.
Some spammers open free e-mail accounts and abandon them before they are caught. The account might be open for 15 minutes and then never used again.
Spammers also write programs that load in multiple accounts, so that when one account is terminated another automatically kicks in. Quite a few spammers simply move on to another ISP when their accounts are terminated for spamming.
Spammers use many different methods to hide their identities and therefore it is very difficult to find and to reach them.
I talked with a number of people, including lawyers, ISP directors and organizations; they said that it is important to remember that we have to involve all the stakeholders in this. I should tell you, honourable senators, that when I had my meeting with Madame Robillard, I told her that I had placed Bill S-2 before the Senate and it would be going to committee, which would hear evidence. I mentioned that there are other things that I think the Government of Canada should be doing concurrently. She said, ``What would that be?'' I said, ``I think that you should have a round table discussion soon involving many stakeholders,'' because after Bill S-2 was issued, I received a number of legitimate e-mails encouraging me to proceed. People feel that it is about time that something was done. People are worried about their children receiving some pornographic material. They cannot get a filter to block that type of thing. They congratulated me on proceeding.
I told the minister that I feel that she should have a round table with many of the stakeholders, including ISPs such as Rogers and Microsoft. Others have told me that they would love to come to a table hosted by the minister in order to work out a multi-faceted approach in Canada. The table would include ISPs, ESPs, e-mail marketers, businesses, anti-spam organizations, consumer protection organizations — of which there are many in Canada — anti-spam solution providers and many others. The minister has told me that she is interested in taking this approach concurrently with this bill being before a Senate committee.
The minister will formally announce such a task force shortly. We will be looking at many new ways to overcome this problem.
Mr. Michael Binder visited me in my office. He works at Industry Canada and is charged with technological matters such as telephone, wireless and spam issues. One of the first things that he said to me was that people in his office had read my bill. They did not agree with everything in it, but they are delighted that it exists. The main reason they were pleased is that it will raise awareness among Canadians that there is a major problem. Educational awareness is a major component of stopping spam.
What did I mean by that? It would help if more Canadians were aware of things that they can and cannot do to try to discourage spam. Some people do not realize that if they click to have a peek at what the spam might be about, their e-mail address is being picked up by a number of other potential spammers. People should not open that particular e- mail.
There are a number of other things that ordinary Canadians should know. That could happen through an education program, which the minister is interested in helping to promote.
Education would also inform people that there are certain technological solutions. There are some inexpensive filters that can be purchased. There are other things people should do in their offices and with their networks to try to stop the spam.
I will tell you the conclusions of the OECD study of February of this year. Then I will tell you about the reason for and significance of three or four clauses of the bill.
The conclusion of the OECD study says that the low cost and global reach of e-mail and other electronic messages have made them an extremely important and popular means of communication. However, the rapid growth in spam threatens the convenience and efficiency of electronic messages and undermines user confidence on-line more generally. A variety of measures and initiatives have been taken in OECD countries to address the recent surge in spam volumes and reinforce consumer confidence on-line. It does not appear, however, that these self-regulatory and technical measures have yet been successful in slowing the growth of spam. Renewed efforts to tackle this problem will need to recognize that no single approach will likely succeed in stopping spam and that international coordination will be needed to address a problem that does not recognize national boundaries.
No current approach to addressing spam is without its own limitations. Legal approaches confront the difficulty that senders of spam are often effective in hiding their identities and operating across borders. Self-regulatory approaches are challenged to ensure that spammers voluntarily participate in and abide by industry codes of practice. General public awareness and education are needed to foster safer computing practices. In this respect, anti-spam strategies might be linked to general e-security campaigns. On the technical side, continued support for the development and deployment of technical tools to fight spam is needed to help ensure that spam does not elude the filters of ISPs and others.
What are some of the things in this bill that I think can help overcome some of the problems identified by Industry Canada, the OECD and a number of other groups?
The first and foremost question I receive from the media is, ``What possible good can your bill be, since you recognize that most of the bad spam originates outside of Canada? Maybe it is from Asia. Maybe it is from Africa. We do not know where it is coming from, so what can you do in Ottawa, Canada, to stop it?''
A case was decided in the Australian Supreme Court two years ago. A person sent a defamatory spam e-mail message from New Jersey in the United States of America and it was opened in Australia. It was taken to the Supreme Court, which ruled that the place where the spam is downloaded or opened has jurisdiction to deal with it, so someone in Australia has the jurisdiction and the power to bring an action against a person who issued spam from New Jersey in the United States of America.
A clause in Bill S-2 says that the spam can be actionable, for various types of criminal and civil action, if it is in fact defamatory, fraudulent or wrong and is opened in Canada. That makes this piece of proposed legislation very different from any legislation that I know of either in state or federal law in the United States or elsewhere.
On the inside front cover of Bill S-2, we have a summary of the main clauses of the bill and what they mean. Without reading them all, I must say that one of my main concerns is to see something done immediately to protect e- mail sites that are used by young children so that they are not introduced to sex sites, pornographic, fraudulent and other bad spam. I tried to do that by making it a very serious offence, punishable by a fine of $5,000, if a site that has been designated by the parents as a children's site is in fact spammed. That would be actionable if this were to come into force.
Honourable senators, I have been speaking for a long time. I thank you very much for giving me this opportunity to outline for you a possible answer and one approach to a multi-pronged problem. I would like to see Canada go forward with a form of legislation. As you know, New Zealand, Australia, the European Community and the United States, both the federal government and many states, have in fact brought in legislation. Some of the largest ISPs in the world, including America Online, Microsoft and others, have now utilized those statutes to bring major lawsuits against well-known spammers in the United States and elsewhere in the world. The legislation that is on the books is being used. I am sure we all read two or three months ago about the major lawsuits that were launched against spammers, utilizing legislation that is now in place.
Thank you, honourable senators.
The Chairman: Thank you, Senator Oliver.
Senator Phalen: Senator Oliver, I think that you deserve congratulations for the work you have done in respect of this bill. For my own information, and not to be misconstrued as being against the bill, there are several questions I should like to ask.
As senators, we have a duty to consider the views of all Canadians. Do you believe there are legitimate mass mailings, and if so, how would this proposed legislation protect those?
Senator Oliver: That is an excellent question. There are, in fact, many legitimate mass mailings. The problem with many of the filters that have been produced is that those filters will block out good and bad. No filter on the market today will only cut out the bad and keep the good. For that reason, I do not feel that filters are the way to go. Indeed, I was talking with a friend of mine in Toronto the other day, and he asked, ``Why are you so concerned about spam? I do not get any.'' Then I asked, ``Did you get the e-mail that was sent by a friend of ours the other day?'' He said, ``No, I did not get it. It must have been blocked out by my filter.''
There are a number of legitimate commercial e-mails that must be allowed because, as I said, it is a modern way of direct marketing today that is inexpensive, better than the telephone, better than the fax and better than sending a salesman to your home or office. They are bona fide. The answer, senator, is not to put on a filter, because that might block them out.
In my bill, I try to show the difference by using what we call an opt-in list and an opt-out list. The ISPs, the Internet service providers, would have a list of those people from whom you want to receive information. According to some of the material I read, a number of people in Canada receive information from something called Victoria's Secret. There are a number of other companies from whom they like to buy. These companies regularly send commercial e-mails advertising the types of products that you can buy — perfume, clothing and other products. If we had either an opt-in or an opt-out list, so you could say you do or do not want to receive information from these people, then that would give protection to the bona fide commercial e-mails that we all want to receive.
Senator Phalen: Clause 7 of this proposed legislation is calling for compulsory membership, and clause 4(5) provides for fees for such membership. Does this mean that no Internet service supplier would be allowed to offer their services to the Canadian public unless they joined this organization and paid the mandated fees?
Senator Oliver: The answer is yes. When I was drafting this clause, I knew that there already was an Internet service providers' association in Canada. It would have been easy to say to them, ``Look, we are thinking about drawing up a bill. Would you like to be the organization that would regulate Internet service providers?'' Then, after discussions with some lawyers and draftspersons, it was decided that it would not be right to impose that on them because it really should be a national solution and the government should be given the option of creating their own organization.
Alternatively, the government could go to the existing Internet service providers and say, ``This is what we want to do; this is how we will cost it; this is how we will fund it; are you prepared to work with us?'' I wanted to give the government of the day the option to either utilize the existing organization or start its own. It did give them the right to talk and negotiate with them.
I am aware that there are both large and small Internet service providers. America Online blocks more than 3 million messages each day as a matter of course. Some Internet service providers in parts of Newfoundland and British Columbia have only a few dozen subscribers. Companies such as AOL and Microsoft could probably afford to pay fees, while an ISP with only a few dozen subscribers could not. To answer your question, senator, the government would have to negotiate a sliding scale of fees based on the size of the ISP.
Senator Phalen: I think you touched on this subject in your statement. The Canadian Association of Internet Providers supports self-regulatory initiatives. It suggests that government regulation or legislation cannot be flexible enough to keep up with the fast pace of technological change occurring on the Internet. How do you address that concern?
Senator Oliver: First, I had meetings with senior executives of the organization in my office; I have talked with them over the phone and we have exchanged correspondence. I have talked with Industry Canada about them as well. CAIP is one group that, along with other ISPs, would like to attend the round table with the minister to thrash out these kinds of issues with all the stakeholders — consumer groups and others.
As I said earlier in my address, the minister has agreed to host such a round table. It would be my hope that as a result, many of the concerns about fees and the extent of regulations could be ironed out.
Senator Phalen: I would like to suggest to Senator Oliver that he keep up the good work.
Senator Oliver: Thank you, senator.
Senator Corbin: My heartfelt congratulations on your initiative. I sense that we are all about to be properly educated about this complex and unique problem plaguing the Internet.
Senator Oliver, we will have many questions. I would like to know, in respect of the comments made by Mr. Michael Binder such that he does not agree with everything in your bill, what he does not agree with.
Senator Oliver: Senator Phalen's last question concerns one of them. Does the government truly want to be in the business of regulating Internet service providers when ISPs say that the technology is changing so rapidly that one wonders whether the government could keep up with it? Is there not another way that we could deal with the spam problem without directly involving the government in trying to regulate, directly or indirectly, Internet service providers? That is a concern.
The second concern that Mr. Binder and others in his department have is why, before drafting a bill that would require new rules and regulations, we had not looked at trying to enlarge upon many of the existing laws, such as the Privacy Act, the Competition Act, the Criminal Code and others. He wondered why we did not try to add spam- specific sections to existing laws rather than propose one new bill. A professor in Ottawa has written widely on this and sent information, indirectly, to the effect that a bill is not required and that we should elaborate and enlarge upon existing legislation. There was a conference of lawyers at which Microsoft and others were panellists last weekend. The Ottawa Citizen reported Professor Geist as saying that we do not need a new bill. Microsoft and others are saying that a single approach will not work and that we need a multi-faceted stakeholder approach.
Senator Corbin: It should probably be a multinational approach as well.
Senator Oliver: Yes.
Senator Corbin: I suspect that the ultimate solution would be a kind of international accord, agreement or treaty, whereby various levels of authority could exchange information and act legally on an international basis. You quoted the Australian court case. That is fine as far as it goes, but considering the complexity of the technology and the multinational legal intricacies, do you not think it would be better for governments to work toward establishing an international accord and then put the appropriate technology and legal structures in place? I realize that the homework has to be done before sitting at an international table. However, it seems to me that you could devise very non-complex wording at the international level that could engage all countries to work out the fine print together, if I may say so.
Senator Oliver: I agree with you, senator. A letter from Mr. Richard Simpson, dated January 16, 2004, said:
Further to our meeting in December, I enclose a brief summary of Industry Canada's international activities dealing with spam. We would be glad to provide you with further details of these initiatives, if you wish. We also enclose a copy of the background paper on spam prepared for the OECD-EU workshop taking place on February 2-3, 2004.
Canada, through the industry department, is already working on such an international initiative so that there can be international cooperation. You are quite correct: That is the ultimate solution.
I put a clause in my bill to deal with spam originating outside of Canada because in this country we currently have many reciprocal laws. For example, if someone is ordered to pay maintenance and support in Nova Scotia and moves to British Columbia, we are able to reciprocally enforce that judgment. If that person moves to the United States, Australia or New Zealand, we are able to reciprocally enforce that judgment.
We have reciprocal enforcement of judgments acts already and many other reciprocal laws. If the forum for this bill happens to be Nova Scotia, Ontario or New Brunswick, we could use existing laws to reciprocally enforce the judgment against the spammers.
Senator Corbin: Would you not be concerned that people would invoke Charter provisions such as freedom of speech and what have you to block these initiatives?
Senator Oliver: We already have a law on the books dealing with privacy. In the Canadian Personal Information Protection and Electronic Documents Act, electronic mail addresses are deemed to be personal information. We can enlarge upon and use that particular act, which is Charter-proof. It has already passed the test of Parliament saying that the provisions do not violate the Charter. We certainly can use that as one of the conduits to stop the spam and it will not violate the Charter.
Senator Corbin: I would like to make a passing comment with respect to the university professor to whom you alluded. What is his name and which university is he with?
Senator Oliver: I think it is Geist.
The Chairman: Perhaps you could let the clerk have it when you have verified it, Senator Oliver.
Senator Corbin: Would it help to make a parallel with many of the arguments we heard recently with respect to the hate measures and homosexuals? Many arguments were made that we did not need an amendment to the Criminal Code, that there were sufficient protections in existing legislation. The parallel is pretty apt, I think. That is how I understood the debate, but of course, that matter has been resolved.
If that is the case, I think we ought to have this person appear before us at some time.
The Chairman: I think we have traced his name and coordinates and he has been added to our list. It is Professor Michael Geist, who is a University of Ottawa law professor.
Mr. Geist, Canada Research Chair of Internet and E-commerce Law, told the 12th biannual national conference of the Law Society of Upper Canada the question now really is what are we prepared to do about spam?
I would, since I have this article before me — and I will leave a copy with the research table — quote what Microsoft said at that conference. Mr. Michael Eisen, Executive Director of Law and Corporate Affairs at Microsoft Canada, said emerging technology could block 90 per cent of spam or slow its delivery to make it economically impractical. He said:
I am optimistic that we are seeing the light at the end of the tunnel for the first time, in large part because of the success that we are enjoying as we develop increasingly better technological tools, as we see legislation in Canada or other places either be contemplated or put in place, and as we see litigation against the world's leading spammers.
Again, I stress that Microsoft believes that we have to have a multi-faceted approach, and it includes legislation.
Senator Corbin: I hesitate to fool around with the opt-out messages on this unwanted spam. I simply delete whatever comes on the screen. My wife told me there were five for pornographic material this morning. We simply delete them. I do not dare to follow the instructions for the opt-out message because I am afraid that will get me into deeper trouble.
Senator, can you assure me that if I follow this process to opt out of this mailing list, I am not getting into deeper trouble?
Senator Oliver: I cannot give you that assurance. Several of the articles that I have read indicate that some spammers are so sophisticated that they are able to get access to and jam or block some of those lists. The technology has not been perfected.
Senator Corbin: Thank you.
Senator Graham: Welcome to the witness. I join my colleagues in congratulating him on this very worthwhile initiative. In one of his questions, Senator Phalen used the words — and it was not directly meant for you, Senator Oliver — ``try to make a difference.'' I just want to comment that since you came here, you have indeed tried to make a difference, for the betterment of society.
My questions are very simple — I have just a couple. Is there anything in the proposed legislation that would adversely affect any legitimate marketing activity?
Senator Oliver: No. Indeed, we encourage the use of the Internet and e-commerce as an inexpensive and good way of doing business in Canada.
Senator Graham: My next question is about the costs associated with the proposal. Have you any idea what they might be and who would bear the costs of the proposed legislation? Would it be a combination of industry and government? I know you must have thought about this.
Senator Oliver: I thought, first, about whether this could in any way be construed as being a money bill. The advice I received, and conclusion we came to, is that it is not a money bill and, therefore, I was able to introduce it.
Senator Graham: If it were, it would have to start in the other place.
Senator Oliver: Exactly.
Second, the ISPs now are spending a lot of money on filters. An ISP is like a highway — we are in cars driving along the highway. In driving from point A to point B on this electronic highway, we have to make sure that we can do so safely and that we are not blocked by spam along the way. Our ISPs are now providing that and they are paying for it. They are prepared to continue to pay for it, but if the government does not stop spam somehow and pay for that, they will have to get more bandwidth in order to carry all of this excess traffic on their highways. In other words, they will have to enlarge the highway at their own cost, and that will affect their margins, which are quite thin. It is not a hugely profitable business.
It they have to utilize more bandwidth to carry this extra load — because there are millions and millions of e-mails being sent on the highway — it will cost them. That is another reason why they would like to sit at this round table with the government, and it would be one of the things they would put on the table: ``If in fact we have to spend a lot of money on more filters and hire more personnel to help stop this incoming spam, we need some government assistance. We are prepared to match it, perhaps.''
I cannot speak for ISPs, but this is a discussion that would take place at the round table.
Senator Graham: Thank you.
Senator Comeau: I want to congratulate Senator Oliver on the excellent work that he is doing in this area.
French expressions are sometimes more apropos than English expressions, but the opposite can also be true. In this particular instance, the word ``spam''...
We are not sure what it means.
The French word, pourriel, is an absolutely elegant term. It almost translates as ``rotten mail.'' It is more descriptive than ``spam,'' which is some kind of canned processed meat. The French word is much more elegant.
There no doubt, Senator Oliver, that the e-mail service is greatly diminished now because of spam. My assistant could tell you how many she has to weed through every day. We receive much mail from Canadians who want to express views on certain subjects. We have to wade through all the spam. It becomes extremely onerous on everyone, not just from a commercial or business point of view; it is just as bad at home.
As Senator Corbin said, sometimes you are not sure what to do with it. Obviously, it is about time that we did something about it, and I am glad you are.
You mentioned creating a council of ESP providers. Would there be any danger of that council expanding its mandate and trying to empire build, as often happens with government bodies? If there are others on the council, could it possibly become more than what we are envisioning here?
Senator Oliver: There is no question that that is always a fear. As you know, you cannot definitely circumscribe it by language in a statute or by a rule or regulation. It seems to me the best solution is parliamentary oversight. There should be a parliamentary committee, such as this one, to which the council would report. Direct questions could be put about whether they are trying to grow their mandate indirectly.
Senator Comeau: I was somewhat worried that if the minister is not satisfied with the work of the council, she could appoint her own directors. They, in turn, would create whatever initiatives or bylaws to speed up whatever process the minister wanted at the time. That always worries me a little in a bill. How ever, the end objective is worth the risk of having this in here.
Senator Oliver: You make a very good point, Senator Comeau, and I agree with it. However, I would hope that the power of parliamentary oversight would overcome that problem.
Senator Comeau: Have you identified which committee would provide the oversight?
Senator Oliver: No.
Senator Comeau: Would it include both Commons and Senate representatives?
Senator Oliver: Yes it would.
Senator Comeau: Recently, we have had more and more bills being directed to Parliament, which means the House of Commons would be interested in participating, as would the Senate.
Senator Oliver: Yes, it would.
Senator Comeau: Do you envision some kind of international protocol with other countries in order to pursue out- of-country spammers? Spammers could escape to some country that is not part of the protocol. If all those spammers have escaped to a haven or to a spam-free zone, is there technology to block the spam?
Senator Oliver: There are more than 200 countries that are involved now, and you know what it is like trying to get 200 countries to agree on this kind of a protocol. The answer is that I do not think that we will ever have a protocol that will cover everyone.
On the other hand, Microsoft says that certain technology that they have now, which I will see in less than a month, will block about 90 per cent of the spam. They are getting closer.
We should use a multi-pronged approach of some software filters, along with an international organization and a national law with both criminal and civil provisions for bringing action, plus an educational component. All of these will help to overcome it. I can see it starting to diminish in time.
Canada is also a major player in building this international tribunal that you and Senator Corbin have asked about. I should not say ``tribunal.'' We would work cooperatively with a number of other states to try to find a protocol to resolve it.
Senator Adams: Thank you, Senator Oliver, for coming to the committee this morning.
I have a couple of questions. My sister-in-law receives e-mails every day. I never touch my computer. What is the difference between e-mail and the Internet?
Senator Oliver: The Internet is the system that we use to do a number of things. E-mail is one of the things that we can do on the Internet. We can also make telephone calls on the Internet. We can send photographs on the Internet. It is like a highway on which we can communicate around the world.
Senator Adams: Rogers is advertising high speed Internet. Is it at a different price? Is there competition?
Sometimes I go to the liquor store and use my client card. In two seconds, I am approved. I go to the gas station and it takes 20 seconds. I was wondering about the speed. Are the providers of e-mail in competition? How does it work?
Senator Oliver: You have answered your own question. High speed Internet means the connections can be much faster. In rural and remote areas, they do not have the bandwidth to be able to have high speed. A number of protocols are looking at that now.
Indeed it will cost more, probably, in rural areas, unless the government does for the Internet and e-mail what they have done for telephones. The government said that there should be universal access. That is why our use of the telephone is so high in Canada.
Senator Adams: That is good. If I use my card in Rankin, it sometimes takes over five minutes to have it approved.
One person could send 150 e-mails to me to make it look like many people do not want to see the bill pass through the Senate. One day, I got 1,500 e-mails in maybe 15 minutes.
Can you identify that one person who sent 100 e-mails to my office? Will this bill affect that? Will you be able to limit a person to sending only one e-mail? How will they stop that?
Senator Oliver: It is a good question. I literally have files this deep with information people have sent me and that I have read on the Internet. One article I read some time ago said that there are only about 10 to 15 major spammers in the world, the people who send out tens of millions of e-mails every day. Then there are many small ones that might send out a couple of million. The big ones are known to America Online, Microsoft, IBM and Motorola, but they keep moving and changing their address and location. That is why America Online and Microsoft launched the huge actions they did in the United States. They said, ``We know who you are and now we are going to come after you. We have not been able to before because we did not have legislation that would permit us to do it.'' The people who send out the mass, fraudulent, pornographic e-mails, there are only a couple of handfuls of them in the world, but they are making so much money they can afford to keep moving every hour. They are like Osama bin Laden.
Senator Adams: I know that e-mail is helpful for locals to get to private companies, and right now and for the future, they have more competition with other people and are able to get in. Are only organizations able to do it now? Where I live, with our culture and languages, and what we call syllabics and stuff like that, will they be able to send e-mail in Inuktitut, not English or French, in the future?
Senator Oliver: I think so. There is one article I will send you that shows how a number of the spammers have advanced degrees in mathematics. One of the articles in my files talks about the type of alphabet and numerical systems they are using to keep their identities hidden. The article is highly complex because it is dealing with the symbols they use to keep themselves hidden and to keep attacking others. There is only one way that I know of to stop it, and that is with advanced software filtering being produced by companies like Motorola, IBM and Microsoft. That is the only hope, because it is so sophisticated and mathematically advanced.
Senator Day: I join with Senator Corbin in saying this is really great work.
Could we talk a little to have a common understanding of the problem? Do you agree that about 90 per cent of the spam on Canadian computers comes from outside the country? Have you seen that figure?
Senator Oliver: I have not seen it. It surprises me that 90 per cent would come from outside Canada.
Senator Day: I have seen it in a number of articles. It is estimated that 90 per cent originates from outside Canada.
Senator Oliver: Some of the 10 to 15 big spammers are Canadian.
Senator Day: As you point out, they move in the night, so it is really tough to tie them down.
Also to define the extent of the problem, approximately what percentage of traffic on the Internet do you estimate is unsolicited and unwanted, what you would describe as spam?
Senator Oliver: Two years ago, it was around 30 per cent. One year ago, it was around 40 per cent. Now it is substantially over 50 per cent. More than 50 per cent of the e-mails we get today are spam.
Senator Day: As you have pointed out, that kind of volume affects user confidence. People will just not bother using the Internet and the computer if there is that kind of garbage.
Senator Oliver: That is a major part of the problem.
Senator Day: That much can also test the efficiency and effectiveness of the system.
Senator Oliver: That is exactly right.
Senator Day: That defines the problem, and could we go to your definition of ``spam,'' which appears on page 2 in the proposed definition section of Bill S-2?
When you say, ``spam means one or more unsolicited messages,'' I must have received 1,500 to 2,000 unsolicited messages with respect to Bill C-250 with which we have been dealing. Would that fall within your definition of ``spam?''
Senator Oliver: Yes it would. Do you mind if I enlarge upon that?
Senator Day: Please.
Senator Oliver: One of the documents that I am very proud of, and that I would like to leave with your committee, is the OECD document. They have spent days, hours and weeks with legal and other experts trying to come up with a proper definition of ``spam,'' and, by definition, the essential ingredients of spam. I would like to read you eight or nine of their headings and some of the ingredients in that definition. They say: ``Extrapolating from the discussions above and elsewhere, the following characteristics can be associated with spam: First, Electronic messages: spam messages are sent electronically.''
Second, ``Bulk: spam messages are typically sent in bulk...'' Third, ``Unsolicited: spam is sent without the recipient's request or consent. Determining whether a message is unsolicited may be difficult where it is a pre-existing relationship between the sender and recipient,'' but nonetheless. The next one is ``Commercial: typically spam has a commercial purpose: the promotion or sale of a product or service.'' The next one — spam ``Uses addresses collected or sold without the owner's consent.'' Next one, ``Unwanted: spam is usually considered to be unwanted or even useless by its recipients.'' The next one, ``Untargeted or Indiscriminate: typically spam is sent in an indiscriminate manner, without any knowledge about the recipient other than the e-mail address.'' The next one is ``Repetitive:'' — this goes to Senator Adams' point — ``many spam message are repetitive, either exact duplicates of prior messages (or containing very slight variations).'' The next one, ``Contain illegal or offensive content: spam is frequently a vehicle for fraudulent or deceptive content. Other spam includes adult or offensive content...which may be illegal in some countries.'' Next is ``Unstoppable: spam recipients are typically unable to stop the reception of the messages.''
I must say that with certain filters you can, because during the problem of Bill C-250 you were talking about, one day it was coming so fast that barely two seconds were going by and I was getting another message, so I had a filter put on that reduced it to about one every half-hour.
Next is, ``Anonymous or disguised: spam messages are often sent in a manner that disguises the originator by using a false address or header information. Spammers frequently use unauthorized third-party e-mail servers.''
These are just some of the ingredients, and so the world is struggling with a definition for ``spam,'' but the usual definition is the simplistic one that I have here, that it is normally unwanted, commercial e-mail that can be fraudulent, offensive and pornographic.
Senator Day: Thank you for that, and if you would provide the clerk with a copy of the OECD research, I think it would be very helpful for us as background material.
Senator Oliver: It is excellent.
Senator Day: Do you propose to amend your definition of ``spam'' to follow this OECD definition?
Senator Oliver: I am open to enlarging it, but I would love to hear what witnesses like Professor Michael Geist and others, who have been studying it for years, would have to say about the definition. If it could be improved to provide more protection for Canadians, then I am certainly open to that.
Senator Day: I am glad to hear that. I am not here today to propose an amendment, but I look upon this draft bill as raising a very important issue. We are all complimenting you for raising it. I am glad to hear that as we learn more about it, you retain some flexibility with respect to various aspects of this proposed approach.
I think the general approach to spam, as you will undoubtedly appreciate, would catch some activities that we may not wish to prohibit. On the other hand, if we included all of those features, then you would not catch very much at all, and existing legislation would satisfy. If the message were illegal or misleading, then we have the Competition Act and the Criminal Code. We have existing legislation such as PIPEDA, the Personal Information Protection and Electronic Documents Act, which is very helpful, especially in regard to the point you make about the gathering of e-mail addresses without permission, which is an offence under the act. That is an extremely important point to keep in mind.
If we look at cold calls or unsolicited messages, such as, ``Do you want to buy this particular stock,'' it might turn out to be a very good opportunity, or, ``Would you like to go pheasant hunting in New Brunswick,'' you could say, ``Oh my gosh, I did not know you could go pheasant hunting in New Brunswick.'' That is unsolicited advertising that could fall within your definition but might turn out to be very desirable to some recipients. I guess those are some of the issues floating around in my head.
The final question is why you decided to use the approach that the United States has taken, of saying spam is okay unless individual recipients register and say they do not want it, rather than taking the approach that you cannot spam unless you have the permission of the recipient, as the European Community and California have. Why have you opted for the U.S. approach?
Senator Oliver: The OCED countries are split between opt-in and opt-out. Frankly, a number of cases in Europe, Australia and New Zealand will test that to see which works better. I am also open to that, but in taking some legal advice, it was felt that you should have the right to consent because that seemed more like the Canadian way. However, if legal cases going before the courts in Australia, New Zealand and various countries in Europe show that this does not work, then I would be open to changing it to something better. To answer your question, it was done as a result of taking some legal advice and looking at what had happened in other jurisdictions.
Senator Day: The international aspect is certainly apparent when you consider that the companies that are spamming tend to be North American-oriented, because Europe has its legislation. My understanding is that most of the messages now are coming into Europe from North America.
Senator Oliver: The United States now has major federal anti-spam legislation.
Senator Day: The international aspect seems to be very important. In your further discussions with Madame Robillard and Industry Canada, if we are right that 90 per cent of the spam coming into this country is originating internationally, or anywhere near that amount, then the international aspect of this problem must be looked at very seriously in cooperation with other jurisdictions.
Senator Oliver: Would you not agree that we do have many reciprocal statutes in Canada now that we could utilize in the case of a judgment in Canada for something that originated in India, Afghanistan or Asia? As long as they had assets there against which we could execute the judgment, surely that is a viable remedy. I say that because you are a lawyer in intellectual property.
Senator Day: I heard, and appreciated, your comments earlier about the reciprocal enforcement of judgments. It is fraught with difficulties, as you are aware. You must always ensure that this jurisdiction has the same kind of basic rules as the jurisdiction where you wish to enforce it.
I should like to raise a flag in another area. In relation to the discussion you had with Senator Adams about high speed Internet and the broader bandwidth, we are seeing more telephony going electronically — digitally — over the Internet. In your definition of ``message,'' do you include print messages and material on the computer as well as the digital signal transferred to audio again at the receiving end?
Senator Oliver: Very much.
Senator Day: You would include both telephones and computers?
Senator Oliver: One thing that might come via e-mail is a pornographic picture. That is spam. As you know, you can also have voice, and there may be a voice message on your computer saying, ``I would like to invite you to a fraudulent activity.'' They are both spam.
Senator Day: We receive many unsolicited telephone calls now. Most of them are not coming through the Internet, but more and more are.
Senator Oliver: That is being dealt with through the CRTC. Now you are getting into their jurisdiction. You are quite correct that when we complete the protocol for voice over the Internet, and we are almost there, then we may have to extend the power of the CRTC to deal with it. They had a hearing a year and a half ago and said, ``We cannot regulate and have no control over the Internet.''
Senator Day: We dealt with that in another area, and we should put the CRTC on the list. In the last week, the CRTC has stated they will be getting involved with respect to telephony over the Internet. They have stated they will have to start doing some regulating there. Thank you very much for your comments.
Senator Corbin: On a point of order, could we have Senator Oliver provide us with a list of acronyms used in this particular sector? You and Senator Day were exchanging acronyms there.
Senator Day: Sorry, I tried not to do that. PIPEDA?
Senator Corbin: I would like a list of acronyms and their meanings. Can I get that?
The Chairman: Perhaps the Library of Parliament could be responsible for that, consulting Senator Oliver as necessary. The document we have from the Library of Parliament includes some of those. After I went through it a couple of times, my knowledge increased, but a short list of all these acronyms would certainly be very helpful. I am not sure that was a point of order, but it was a useful point.
Senator Corbin: A point of clarification.
Senator Merchant: Senator Oliver, I also thank you for undertaking to do all this work and educating us. The comments that I make are not to take away from my pleasure at your doing this, but I have a few questions, and maybe you can soften my approach. The more I learn about it and the more understanding I have of what is going on, the easier it is for me to accept some of the compromises that I have to make in my own mind.
Junk mail has been with us in one form or another forever, because we live in a country where we encourage free commerce as a way to do business. That gives everyone, the consumer and the provider, an opportunity to make choices and have options. I can understand that the ISPs would like us to bring in some kind of regulation because they are losing some business to the spammers, but everyone is trying to corner this market. When we have witnesses, I hope we will hear from a variety of people, not just those who are proposing to control this kind of business.
We add such phrases or words as ``unsolicited pornography'' that always raise the red flags, because of course, most people do not want that kind of material sent to their computer systems. However, there is a good side to spam, in that it gives people an opportunity to do business.
I receive many calls and a great deal of junk mail that I do not want, but this is part of living in a business environment of our choosing — although not everyone wants that. We want a good way to do business but I do not know how to define that. These words have so many meanings and I do not understand them all.
The short title of the American CAN-SPAM Act of 2003, to which Senator Day spoke, is the Controlling the Assault of Non-solicited Pornography and Marketing Act of 2003. It took effect in the United States in January 2004. Maybe you can comment on this: It says that recent analyses of spam traffic suggest that the new legislation has not had any immediate impact on spam levels in the United States. According to three spam-filtering vendors, between only 1 per cent and 10 per cent of spam sent to U.S. addresses in the week following the introduction of the law in January 2004 complied with the legislation's labelling requirements. Furthermore, one vendor indicated that the volume of spam sent over that period actually increased. Analysis suggests that strict enforcement of the law is essential if it is to have any effect.
It will be extremely difficult to enforce these kinds of laws. Would we be able to enforce such a law effectively?
Senator Oliver: The time frame in the example you gave is very short. Once a new law exists, along with its new regulations, new way of doing things and new way of identifying things, it requires time to filter down to those who must comply with it. In the few short weeks in your example, there was not the time for people to learn and for the enforcement agents to get up to speed in their work.
We have to give something like that a little more time. It seems that the essence of the problem you talked about is whether I am certain that spam is bad, because society is such that we want to communicate commercially by e-mail and receive messages about new products, about buying and selling, and about everyday happenings. Why call that spam? I do not call that spam. My concern has been spam that includes advertising for Viagra, breast implants and other body part enhancements. We now know that more than 50 per cent of the e-mails I receive, and more than 50 per cent of what you receive, are things that I do not think any Canadian truly wants to receive. It is certainly not what we would want our children and grandchildren to receive.
All of the statistics show that unless we take action, either internationally or by law or by education, it will worsen. Instead of being 50 per cent, by this time next year it will be 70 per cent or 80 per cent. Soon the Internet will be so clogged it will be closed. We will not even be able to send an ordinary message. That is why we have to act now.
I am in favour of using the Internet, which I do all the time, for good commercial and other purposes. However, we should be afraid of the growing significance of spam — unwanted, illicit, fraudulent, pornographic e-mails taking up space. As you know, the space used in the Internet is a broadband that has to be paid for by the ISPs. They have a limited amount of money for that cost. If we all want to continue to use the Internet and have it grow in a meaningful way, then we have to do something about the scourge of spam.
As you heard me say repeatedly, I am not so wedded to this one little piece of proposed legislation that I am saying this is the be-all and end-all, because it is not that. However, we must have a concerted, all-party, all-stakeholder approach to this problem.
Senator Merchant: I appreciate that and I thank you for bringing this forward. There is always an audience for this material. We can say that we do not want this kind of information received by our children and grandchildren, and I agree. However, that may not be the view of all people; some, obviously, respond to these ads. There is a market for these kinds of things and I just do not know how much we can control what other people think, do and want.
Senator Oliver: We can educate them. I have been told that some people not only open these invitations from foreign countries asking them to divulge their bank account numbers so a deposit of millions can be made to their account to help someone out. Some people have actually given their bank account numbers and then sent personal cheques for $50,000. They lost their money.
Senator Merchant: It is a problem.
The Chairman: Senator Oliver, I will limit myself to three questions — two about the definition of ``spam.'' I will try to explain the first one.
You agreed earlier, in responding to Senator Day, that as it is written, your definition of ``spam'' would include messages such as those that we received in large numbers on Bill C-250, and on other bills. Many of those messages, in my experience, go to everyone in Parliament — all MPs and senators — and the majority of them are sent by individuals, even if they are form letters. I do not know whether we can expect individuals to meet all the criteria set out in this bill for the sending of spam, such as identifying it and checking to see that the recipient is not on the no- spam list. It strikes me that perhaps we would be setting up a barrier to citizens' communications with their representatives in Parliament.
Are you concerned about that? Do you think this might be open to a Charter challenge?
Senator Oliver: My answer is no, and no. The definition on page 2 says that it does not include a message sent by a person to another person with whom they have an existing commercial or personal relationship.
The Chairman: What commercial relationship do I have with the people who write to me about Bill C-250?
Senator Oliver: Do you want those messages stopped?
The Chairman: No. I want to stop all the junk that we have been talking about all morning, or at least control it.
Senator Oliver: You do not want the mail on Bill C-250 stopped.
The Chairman: I want citizens to be free to communicate with me in the same way that we receive mass mailings and petitions.
Senator Oliver: Do you want that even though you may receive the same e-mail 1,000 times in one day?
The Chairman: Yes.
Senator Oliver: Well, that surprises me.
The Chairman: That is part of my responsibility as a senator.
Senator Oliver: You are saying that you want to receive the same e-mail 1,000 times in one morning.
The Chairman: If people sent 1,000 postcards, would we try to control that?
Senator Oliver: Receiving 1,000 postcards would come close to being considered junk mail.
The Chairman: I guess we see this bill from slightly different perspectives. I have clarified what you are trying to do. I will ask one other question, also on the definition of ``spam'' as one or more unsolicited messages sent and received. I wonder if that definition would not have some unintended consequences. I will give one example with which you, as an experienced chair of committees, are very familiar. For example, the committee is holding hearings on an item and the clerk of the committee is asked to get in touch with potential witnesses. He or she sends an unsolicited message to a stranger, perhaps Professor Geist, whom we do not necessarily know, to ask if he would testify before the committee.
Does that come under the definition of spam? It is an unsolicited message.
Senator Oliver: No, not at all. You would have to review some of the language used by the OECD. Spam is not just unsolicited, commercial and unwanted messages; it is those containing illegal or offensive content. What would be illegal or offensive about writing to a professor asking if he would like to appear before a committee?
It is no different from letters that I get from schools asking me to come and speak about the Senate of Canada. The letters are unsolicited, but they are not offensive.
The Chairman: In clause 9(1) on page 7 it says that every person who authorizes an agent to send e-mail on their behalf must promptly notify the minister that the agent is so authorized.
Did you mean who authorizes an agent to send spam or just any e-mail? All of our assistants send e-mail on our behalf on a regular basis.
Senator Oliver: Yes. E-mail means a message from a sender to one or more recipients transmitted by the Internet. That refers to an ISP. Let me check the ISP.
An Internet service provider means the person who provides the service to give the public access to the Internet. This was an attempt to give the minister some authority over the gatekeeper, so to speak.
The Chairman: It is not supposed to just scoop up everyone who is authorized to communicate on behalf of someone else?
Senator Oliver: No.
Senator Phalen: To follow-up on that, what would happen if we had e-mails that included the word ``sex,'' or ``drugs'', et cetera, on behalf of some community organization or church. Would that be filtered out?
Senator Oliver: It depends upon the nature of the filter. You can put a filter on your computer that will filter everything. The scientists are working on a filter that will only filter out the types of things that you have already told the program are fraudulent, pornographic, sexist or racist — all the things that you want to block.
As I said earlier, there is no company in the world, not even Microsoft, that has a filter so sensitive as to do that. There is no filter that works properly yet.
Most Internet service providers use many different filters as gatekeepers for all e-mails going into their system. However, there is no filter so sophisticated today that it will make the distinctions that you talk about. It does not exist, senator.
Senator Corbin: I was leading into the same area.
When I subscribe to an Internet service, is the ISP shirking any responsibility for the eventual infliction of spam on me? What is the nature of the contract that exists between me as a subscriber and the Internet provider? Is not the onus really on them to protect me from this unwanted pollution?
Senator Oliver: The answer to the question is yes, but the spammers are so sophisticated that they can get around it. They keep changing their codes and their methods.
I ran this bill by some very senior lawyers and ISPs before I brought it to Parliament. One thing that they advised, which is reflected in the bill, is to not be so hard on Internet service providers that they will be ultimately responsible, because there has to be a save harmless clause. They meant that an ISP should take all reasonable precautions to make sure that something pornographic is not sent to your grandchild's e-mail account. The ISP should be able to show that they have taken all reasonable precautions by buying the state-of-the-art filter, by hiring someone to make sure that this is right, by checking identities and so on. If spam still gets through, the bill has a clause saying notwithstanding that, you cannot turn around and sue the ISP. It is a save harmless clause.
ISPs are the gatekeepers, but there is a limit to what they can do. Currently, the expertise of the spammers is better than any filter. We cannot really attack the ISPs when they have done their best.
Senator Corbin: Has an ISP ever been brought to court over that issue, to your knowledge?
Senator Oliver: I do not know if they have been brought into court, but a number of people have complained to them privately. I have personally met with the ISP association and with a number of ISPs. However, I do not know the answer to that question.
Senator Corbin: That is fair. Let us take an extreme view with respect to your bill. We would all wish and hope that with the constant improvement in technology, this issue will, sooner or a little later, disappear into thin air. Therefore, we will not need your bill. Is that possible?
Is that a credible stance? Is it an act of faith in technology? This initiative would no longer have its raison d'être?
Senator Oliver: Earlier, I quoted Michael Eisen of Microsoft. I will read what he said again:
I am optimistic that we are seeing the light at the end of the tunnel for the first time, in large part because of the success we are enjoying as we develop increasingly better technological tools, as we see legislation in Canada and in other places either be contemplated or put in place, and as we see litigation against the world's leading spammers.
He is saying that their technology is improving. He says in this article that they have technology now that will stop about 90 per cent of spam. As I read him, he is saying that we still need legislation because when it gets through, we have to be able to take action, civilly and criminally, against the spammer to keep control.
It is like a dam. The floodwaters are coming. You have the best dam you could possibly build. The pressure is mounting, and finally a little trickle will get through. As soon as that one trickle gets through, there will be more. Once that first trickle gets through, you can use a law to start jamming it immediately. In the absence of that, what do you have? It may take a year to get the technology to stop up the latest hole.
Having a good, proper piece of legislation is a wonderful backstop.
The Chairman: This is not about your bill, Senator Oliver, but a question to help deepen our understanding.
I am a little puzzled by the fact that I receive very little of this material on my home Internet account. Enough creeps through so that I see a little of it, including some of the really awful stuff.
I am wondering why that would be. Is it because I have an ISP with really good filters? Is it because I never buy anything on the Internet so my name is not known? Why would that be?
Senator Oliver: You probably have a different Internet service provider from the one you have here, for one thing. Second, because you are not using it to buy a lot — and that goes back to the education issue — you are not clicking on a lot of these messages just to have a peek.
The Chairman: Never.
Senator Oliver: However, it depends on the Internet service provider and their filter.
The Chairman: Okay. I guess what I am really saying is this is not quite like Sisyphus; you can get at least part way up the hill, so it is not pointless.
Senator Oliver: I am hoping you will have Mr. Binder from Industry Canada appear here. He told me in my office that substantially more than 50 per cent of what he gets in his office is spam, and they have many filters. Indeed, the figure is substantially higher.
The Chairman: I am not disputing all these statistics. Maybe I should not have said out loud that I have been leading this charmed life.
Senator Oliver: Wait until you get home tonight.
Senator Corbin: I cannot help but think of our media study, and some of the conflictual areas within the regulations spectrum of that particular field. I wish to ask Senator Oliver who in Canada at the federal level — amongst the various departments, agencies, commissions, call them what you want — would have the ultimate responsibility for dealing with and policing this whole problem area? I am led to believe that it is spread out now between various groups. Should there not be one entity empowered to deal with all aspects of it?
Senator Oliver: You are correct, and you are correct. I think there should be one agency. Right now, as you know, we have the Criminal Code, the Competition Bureau and Industry Canada — we have many different acts, rules and regulations spread over many different departments. Frankly, we need a coordinated approach within Canada — it is an excellent point.
Senator Merchant: It says here that on January 31, 2001, some Internet service providers estimated that spam costs consumers about $2 to $3 a month. Consumers reportedly are charged higher fees by Internet service providers that must invest in resources to upgrade equipment to manage the high volume of e-mail, deal with consumer complaints and mount legal challenges to junk e-mailers.
Do you know what the costs are to consumers now? This was 2001.
Senator Oliver: It is even higher.
Senator Merchant: How is it progressing? What can we anticipate in 5 or 10 years?
Senator Oliver: It is increasing. In 2002, commercial spam was costing the United States more than U.S. $8 billion. In Canada, commercial spam cost Canadians more than $1 billion last year, and this year it is expected to be close to $3 billion. That is in lost productivity, the cost of filters, of extra personnel, of bandwidth — those costs are being passed on to the consumer and it is escalating.
Senator Merchant: Of course, some of these are borne by the ISPs, so they are unhappy. However, you think the consumer pays a high price for this.
Senator Oliver: Some of the costs are being passed on to the consumer.
Senator Merchant: It would be good to put a figure on it, because this would mean something to the public as we are trying to educate them about why we are bringing forth this regulation. As I say, there is a certain group — and I am included in that — that is always worried about too much regulation in our lives. Some of us do not perceive that as a good way to go.
Also, Madam Chair, and perhaps Senator Oliver can tell us about this, there is a group called the Direct Marketing Association, DMA. I do not know if they exist in Canada, but apparently they are hoping to demonstrate that self- regulation can work. They launched a new service, called the e-mail preference service, for consumers who wish to opt out of receiving UCE; they can register at the association's Web site. They are arguing that instead of banning unsolicited commercial e-mail, individuals should be given the opportunity to notify the centre that they want to be removed from its mailing list. It is an opt-out option. There is a registry in the United States, I think, concerning unsolicited phone calls. I do not know how it has worked. I do not think it has.
Senator Oliver: No, it has not. It is my opinion that the proposal is unrealistic and the spammers are much too sophisticated. It just would not work.
Senator Merchant: Can we hear from these people?
Senator Oliver: I think you should.
The Chairman: That sounds like excellent idea. Also, on your earlier question about costs, I think that is clearly an area that we will want to pursue with a number of witnesses. Any information that you can provide, Senator Oliver, will be most gratefully received. However, we also have not only an interest but a duty to pursue this issue with other witnesses who appear before us.
Senator Oliver: I would like to say that self-regulation, education, the law, international cooperation and regulation are all part of it. Regulation and self-regulation are only components of this puzzle; alone, they will not resolve it, in the same way that this bill alone will not resolve the problem. It must be coordinated, but I personally believe that having a Canadian law is part of the solution.
I would also hate to see every one of the provinces and territories come up with their own anti-spam law. Then we would be right back in the stew again. If we are going to have a law, we would be much better off with a federal law. Following on what Senator Day said earlier, maybe we should even consider coordinating some of the other factors so that we have one main law.
Senator Day: The material that we were given in preparation for our session today brings to our attention that Industry Canada issued a discussion paper, entitled ``Spam Discussion Paper,'' in January 2003. Was that part of your discussion, and the results of that discussion that were sent out to various stakeholders and people within the industry?
Senator Oliver: No, although I have the paper and I read it. My discussions with the minister concerning a round table took place just a few weeks ago, and it is yet to be held.
Senator Day: When we have Industry Canada here, we will want to know if they have had any feedback from that year-old discussion paper.
Senator Oliver: They have had some feedback on it.
Senator Day: We will pursue that.
This is a point of clarification. Did I hear you say that spam was a major concern in Quebec?
Senator Oliver: I said that. I have had a number of inquiries from people in the province of Quebec, particularly the media, about the bill. I have done a number of media interviews in the province of Quebec with papers large and small, periodicals and others. There has been more interest in the province of Quebec in this bill than any other province. I have had calls from the Northwest Territories and B.C., but there have been more from the province of Quebec.
Senator Day: Do you have an indication that that is because there is more spam in Quebec, or is it because the users do not want it on their monitors?
Senator Oliver: I do not know the answer; but I was told by the media, in the various interviews that I have done, that it is an issue of concern. Senator Fraser may have a better answer for that than I.
The Chairman: I just told you, I do not get it.
Senator Corbin: Senator Oliver is bilingual, so there is a natural appeal.
The Chairman: I have no idea what the reason is and it is certainly worth looking into. It might be partly, as Senator Comeau observed earlier, that the word for spam in French, ``pourriel,' is more derogatory, more likely to alert people to the realization that they are dealing with something they should not have to.
Senator Oliver, I thank you very much, not only for your appearance but also for all the work you have done in bringing this issue forward. It is always a wonderful thing to see an individual senator carry an issue in this way. I am grateful to you as an individual senator, but also on behalf of the committee, I thank you for this day's proceedings, which have been extremely interesting and informative.
The committee adjourned.