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Oh, Look: Another Threat from CASL; The Dumbass Gift that Keeps on Giving

8/26/14
 
By Ken Magill
 
Just when it would seem we have explored every single aspect of legislative dumbassedness in Canada’s most dumbassed piece of anti-spam legislation in the history of ever, someone comes along and points out another equally dumbassed piece of dumbasedness.
 
Now we find out Canada’s anti-spam law—CASL—apparently puts anyone who sends commercial electronic messages at the mercy of the equivalent of a Department of Motor Vehicles employee.
 
It is a formula that just begs for abuse.
 
“[A]n important way to evaluate legislation is to examine how it can be abused, not what the government says its goals are,” wrote attorney Derek James From of the Canadian Constitution foundation in the Huffington Post.
 
Hmm. Some razor-sharp trade writer made that exact point recently. His name is on the tip of my tongue. Now, who was that again? Ben Bugill? Nah. That’s not it. Close, though. Sven Jabill? Nope that’s not it either. 
 
Len Magillicutty? No.
 
Wait! I’ve got it! Ken Magill! Ken Magill made that exact point just over a month ago! Man, it must be such a burden to carry all that genius around in one head. Maybe that’s why he drinks.
 
In any case, according to From, CASL’s latest piece of legislative dummassedness is a result of how the law’s penalty provisions are structured.
 
“The penalty provisions in CASL are of a peculiar variety called ‘administrative monetary penalties,’” From wrote. “AMPs are a special breed of fine that a regulator is capable of levying all on its own. Typically, if you are fined for a breaking a law, you will have your day in court to present your arguments before an impartial judge in a fair and public proceeding. It's only after hearing both sides of a dispute that the judge decides whether you should pay up.
 
“AMPs are different. Regulators can levy AMPs directly without having to prove your guilt to an impartial judge in a fair and public proceeding. This is problematic. CASL permits regulators to levy AMPs of up to $1-million against individuals and $10-million against corporations. There is no judge, no fair and public hearing, and certainly no presumption of innocence. All those procedural protections are surreptitiously dispensed with.
 
“And here's the full depth of the problem with CASL. When Parliament enacted this confusing and ambiguous legislation, it relinquished its legislative power to those regulators charged with enforcing the law. And since those same regulators have the power to directly levy enormous penalties, CASL permits bureaucrats to play the roles of legislator, police, and judge simultaneously.”
 
So basically, if a bureaucrat at the Canadian Radio-television and Telecommunications Commission gets a bug up his ass about an organization—say, because of the organization’s principals’ political or religious beliefs—the CRTC bureaucrat can scrutinize the organization’s email program, no doubt find a violation of some sort in such a broadly written, vague law, decree guilt and fine the crap out of the organization and its executives.
 
Not that government bureaucrats ever abuse their power for such small-minded, tyrannical ends.
 
Many people are inexplicably sanguine about CASL.
 
For example, after last week’s article pointing out that even companies outside Canada’s borders aren’t safe from CASL, one reader commented: “many are panicking and do not need to providing they are legitimate. The Canadians are simply trying to go after the bad apples, and with over 20 years of email marketing under my belt I wish them luck.”
 
But the law doesn’t define “bad apple.” It leaves that persnickety little detail to CASL’s enforcement bureaucrats—a class of people who are not rewarded for exercising restraint.
 
CASL’s crafters’ intentions no longer matter a whit. If a law can be abused, it will be abused. CASL is a poisonous mix of vague definitions, private right of action, broad bureaucratic powers, huge penalties, and the ability to hold individual executives liable for infractions.
 
It is truly mind boggling that so many otherwise intelligent people can’t see CASL for the piece of legislative sewage it is.
 
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