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Hey CASL Defenders: Time to Throw in the Towel

9/2/14
 
By Ken Magill
 
Dear defenders of Canada’s anti-spam law:
 
There comes a time in any debate where in order to remain looking reasonable, one side should tie a white handkerchief to a stick and hoist it in surrender.
 
That time for you is now.
 
It seems a week can’t go by without a Canadian expert pointing out another piece of CASL ridiculousness.
 
Yet another piece of CASL idiocy comes courtesy of attorneys Jeremy Schwartz and Frank Portman writing for Mondaq.com:
 
“Your employee is on Facebook over her lunch break, when she notices that her friend's brother is the President of a start-up that could likely use your company's services. She retrieves his email address from Facebook and sends him an email from her company email account, looking to arrange a coffee meeting to catch up and perhaps talk business.
 
“Before July 1st of this year, this was an admirable employee attempting to expand the company's business and following up on a promising lead.
 
“Today, she has exposed your company to risk of prosecution, hefty fines (up to $10,000,000 – no, that's not a typo), and soon the spectre of civil litigation.
 
“What troubles us and our clients, is that this is not an obscure scenario plucked from a law school exam. Rather, it is one of many, practical vulnerabilities facing Canadian employers since the coming into force of the new Canadian Anti-Spam Legislation (CASL).”
 
CASL is the legislative equivalent of someone having replaced all the balls in a ball pit with hand grenades, throwing a bunch of toddlers in and expecting the rest of us to crowd around the ball-turned-hand-grenade pit confident none of the toddlers will pull a pin.
 
The threats are so numerous that no one can be sure which toddler will pull which pin. But everyone with an ounce of common sense is certain a pin will be pulled. The only question is who gets his ass blown off.
 
Most, if not all CASL supporters probably hate the U.S. CAN-SPAM Act because it is opt-out based.
 
CAN-SPAM is opt-out based for a reason. It also preempted state anti-spam legislation with the exception of laws concerning fraud and does not include a private right of action. 
 
As a result, anti-spammers claim it lacks bite. They are wrong.
 
CAN-SPAM ensures ridiculous nonsense like the seemingly innocent, but nonetheless law-breaking scenario outlined above doesn’t happen. But it gives U.S. law enforcement and ISPs the necessary tools to go after the real bad guys while limiting the possibility of abuse by zealots with too much time on their hands. It has been leveraged repeatedly without harming legitimate business interests.
 
Conversely, CASL invites abuse on too many fronts to count.
 
And when that abuse occurs, I’ll be right there to say: “I told you so.”
 
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