Canada, the New Spam Haven

[Editor's note: We are pleased to welcome internationally recognized Internet law and policy expert Michael Geist back to the pages of The Tyee after a hiatus. You can read his previous Tyee articles here.]

Last month, a California court awarded social networking giant Facebook US$873 million in damages arising from the activities of a single spamming organization. The decision garnered headlines in Canada not only for the lofty award, but because of an important Canadian connection -- the spammer targeted in the lawsuit operates out of Montreal.

While Facebook acknowledges that it is unlikely to recover much of the awarded damages, the case has placed the spotlight on Canada's ongoing failure to address its spam problem by introducing long overdue anti-spam legislation. The fact that organizations are forced to use U.S. courts and laws to deal with Canadian spammers points to an inconvenient truth -- Canadian anti-spam laws are woefully inadequate and we are rapidly emerging as a haven for spammers eager exploit the weak legal framework.

Canada initially recognized the need to address the spam issue with formation in 2004 of a national task force on spam that included a broad cross-section of marketers, telecom companies and public policy groups (I was a member of the task force). The task force unanimously recommended that the government introduce anti-spam legislation.

Crooks target your inbox

Years later, the issue continues to languish on the legislative agenda. Successive governments -- both Conservative and Liberal -- have failed to introduce legislation (the notable exception is a private member's bill introduced by Senator Yoine Goldstein earlier this year). During this fall's election campaign, the Conservatives promised to address the issue, yet a commitment to anti-spam legislation was missing from the recent speech from the throne that outlined the government's forthcoming priorities.

The continuing delays are particularly problematic given the increasingly criminal nature of spam. Once regarded as a mere nuisance, the recent flood of spam spoofing the Canada Revenue Agency that encouraged recipients to forward highly sensitive personal information highlights the very real dangers of identity theft that can result from spam activities.

The Facebook case is only the latest illustration that government inaction has had an impact. Companies anxious to target Canadian-based spammers have been forced to turn to other countries to do the job, while international law enforcement investigations into criminal spam activities run the risk of stalling in Canada since authorities may lack the requisite investigatory powers.

Open season for spammers

As the only G-7 country without anti-spam legislation, it was only a matter of time before spammers began to take advantage. Cloudmark, a leading provider of anti-spam software, recently presented data on the origins of spam emanating from web-based e-mail providers such as Hotmail, Gmail, and Yahoo! at an international anti-spam conference in Germany. Its research indicates that the majority of e-mail -- often up to 80 per cent of traffic -- from these popular services is now spam and that Canada ranked fifth worldwide as the source of web-based e-mail spam, trailing only Iran, Nigeria, Kenya, and Israel.

Another recent study from California demonstrated how spammers profit from their activities by shifting the costs traditionally borne by marketers to the recipients of spam, namely Internet users. Although many people immediately delete spam messages, the study found that spammers remain profitable even with very low response rates.

In light of its profit-making potential, no amount of anti-spam legislation will completely eliminate spam. However, the experience to date in other countries has shown that tough new measures can reduce the amount of spam that originates from domestic sources. Given the fact that there are still several major Canadian spamming organizations thriving under the current legal framework, the best way to reduce the amount of made-in-Canada spam is to change the law.

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