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They're Self-Satisfied; Should Be Holding Their Breath

By Ken Magill
Perhaps I came off a little harsh last week in my assessment of the Canadian Radio-television and Telecommunications Commission’s first action under Canada’s anti-spam law.
The CRTC announced two weeks ago that in its first CASL action the agency worked with a computer reseller whose servers were infected with malware rather than levy fines.
“The announcement was a move of pure cynicism and CASL supporters took the bait like sharks to chum,” I wrote.
“The reaction from some anti-spammers to the CRTC’s announcement may have well been: ‘See how benevolent our all-powerful overlords are? Doesn’t this show they can be trusted to wield their unchecked power reasonably?’” I continued.
A little clarification is in order.
Last week’s column was a culmination of months of frustration with what I believe are incredibly naïve people placing undue trust in a federal agency and what I perceive as a certain amount of smugness on their part.
When Canada put its anti-spam law into force, hard core-anti-spammers got their dream piece of legislation.
And they celebrated.
“We (Chris Lewis, John Levine, and myself) founded CAUCE CANADA November 30, 1998, Our dream of a Canadian anti-spam law was realized today, July 01, 2014, some 15 years and seven months later,” wrote Neil Schwartzman, executive director of the Coalition Against Unsolicited Commercial Email.
“The process was arduous, fraught with fits and starts, setbacks and goals achieved, but with consistent hard work and an unwavering belief in the fact that end-users have the fundamental right to choose what messaging imposes itself upon them, we got it done.
“Happy CASL Day, everybody.”
Here is my issue with such statements. They have no idea what they truly “got done.” I have no idea what they got done.
The law’s provision allowing individuals to sue has not kicked in yet. Nor has its requirement that businesses have express consent to send email. Those kick in in 2017.
If I were a CASL supporter I wouldn’t utter a peep until those provisions have been active for quite some time.
Which of course, begs the question: “Okay then, Mr. Smarty Pants, when will it be safe to assess the effects or lack thereof of CASL on Canadian and American businesses?”
I don’t have an exact answer. But I will make a promise. If, god willing, I am still around and writing about email marketing in July of 2019 and CASL has had no ill effects on legitimate Canadian marketers, I will gladly admit it.
Last point: I do not want to be right about CASL. That would mean a lot of businesses get needlessly screwed. Four years from now, I hope to be issuing a big retraction.

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Terms: Feel free to be as big a jerk as you want, but don't attack anyone other than me personally. And don't criticize people or companies other than me anonymously. Got something crappy to say? Say it under your real name. Anonymous potshots and personal attacks aimed at me, however, are fine.

Posted by: Andrew Barrett
Date: 2014-10-28 18:20:39
Subject: Horseshoes and hand grenades

I think many of us are not fans of CASL per se; but we do support measured legislative attempts to force senders of spam to bear the costs that they inflict on receiving domains. In a very real way, receivers underwrite the cost of senders' email marketing efforts. When the mail is wanted and expected, that's just fine. In those cases, the infrastructure provided by receivers is being used as intended and as authorized, and so receivers are willing to bear the cost to receive. It's a classic economic problem, though, the tragedy of the commons. The law as it is written seems to intend to address that problem in a way that CAN SPAM fails to. For my part, I'm hopeful that the CRTC will continue take deliberate and measured action in all instances. The law, as it is written, along with Canadian penalties that punish the frivolous application of civil torts, might indicate that hope is not entirely unfounded. I actually think the law is pretty good, but one can find instances of any law and the punishment it prescribes being applied in a flawed way, from misdemeanors to capital crimes. That doesn't mean we shouldn't have laws against them; we just need to ensure they're applied correctly.