Hon. Grant Mitchell:

Honourable senators, I rise to speak on Bill C-27, the spam bill. I will say before I start that I listened with great interest to the HST debate, and I am sure that I reflect broadly the sentiment in this house that the quality of debate distinguishes the Senate. I congratulate each of the members who debated.

Not by way of criticism but simply by way of correcting the record, I point out that the debate not once addressed the HST in Alberta, and I should say, on behalf of Albertans and Alberta, that the harmonization of the tax in Alberta caused absolutely no problem whatsoever. It was done without a ripple; if only all the other provinces could follow that example.

With respect to the spam bill, before anyone begins to yell at me, I want to say that I agree with the bill in principle. I look forward to having it discussed in committee. The spam bill is a good bill in principle, absolutely and fundamentally. We all know about spam. We have all heard of spam. There are many kinds of spam. We know that it is a tremendous waste of productivity. We know that it is a hindrance to effective business. We know that it is fundamentally a nuisance, a problem for us as individuals, and we know it must be dealt with.

It is interesting to note that Canada is one of the few industrialized nations that is without anti-spam legislation and it is interesting to note, unfortunately, that we have gained a reputation somewhat as being a haven for spammers. This legislation is past due. This bill needs to be dealt with and we have to fix the problems.

I point out that there is a good deal of bipartisan, all-party collaboration on this issue. Of course, it has been passed in the house after intense but positive debate — learned debate, I believe — and it has been championed in this house both by Senator Donald Oliver of the Conservative caucus and by our former colleague, Senator Goldstein, both of whom had presented private members' bills.

I will put one small partisan plug in to say that the process of reform for bringing in legislation was started with a task force established by the Liberal government in 2004. Again, in the spirit of cooperation and collaboration in this environment that is sometimes maligned, the government has picked up on much of that work and has brought in a piece of legislation that is an important step.

Let me list briefly what the bill will do, but first let me point out that there are a couple of forms of spam, at least, which were clarified for me. Most of us see spam as those unwanted emails that we receive over and over again, and that the classic view of spam and that was my view.

However, it turns out of course that there can be spammed programs — software — that can be downloaded without consent and that can be extremely dangerous. Often, we refer to those programs as viruses. We have them all the way from inconvenient and a nuisance, to extremely dangerous and damaging, with huge consequences both to personal files and to commercial enterprise.

What does the bill accomplish? As was suggested by the definition of the problem, the bill prevents the downloading of software without consent but it wisely, because an amendment was made, excludes automatic updates to software that one has chosen to download already to their computer. Often that is the case: The software is updated and users want the update. These updates will be excluded.

The bill also prohibits electronic commercial messages, commercial emails and that kind of thing that one can receive at this point without consent; without direct consent or implied consent. Clearly, it is important that we differentiate, that we allow for implied consent in the way that businesses operate. We do not want to impede the ability of businesses to deal with their clients or their prospective clients.

Interestingly, it also prohibits companies from taking personal information without consent. It is important from a privacy point of view and, as we work our way through this area of communications on the Internet, on the web, privacy remains an important issue. Step by step, we have to plug the holes and fix the problems.

This bill is distinguished by the fact that it uses a regulatory approach for implementation rather than some kind of criminal approach. I suppose it can become criminal in certain areas, but basically the approach is a regulatory approach that is coordinated through the Canadian Radio-television and Telecommunications Commission, CRTC, the Office of the Privacy Commissioner and the Competition Bureau; all three are good choices for having responsibility and application to the supervision of this process.

This bill is also serious about dealing with infractions. First, it provides for fines of up to $1 million for any individual who spams, and it also provides for up to $10 million in fines for any company that spams.

I can see Senator Mockler wondering, if he receives a Liberal email, is that spam? I do not know, but I can answer the other way: It is continuing education. If I receive an email from the Conservatives, it might not be spam, but it would be wrong.

Sorry, I am trying to rise above that. Merry Christmas.

The other thing the bill includes is a private right of action provision that will allow consumers, businesses and Internet service providers to take civil actions against violators. I think that provision is all good. It hits the highlights of the problem. It has a structure for administration. It has a structure for penalties to make people focus on the seriousness of these potential problems. It is a 21st century bill and it is good.

Now, right to that point; there is one slight problem. I should not say the problem is slight. It is significant and I know it has been debated, and Senator Oliver has given me assurance that it is being considered.

The problem is this: The bill is sweeping. As you might imagine, it is difficult to structure a spam bill in the environment we are in. That is to say, things are emerging and changing. The Internet, the web, is expanding so dramatically and so quickly and communications are shifting from what we have seen as traditional ways of advertising and communicating, often on paper or on TV, to this remarkable place that many of us have yet to understand: the Internet, the web, the ether.

It is understandable that we would have a broad approach to this bill as a first crack at it. However, there is a single problem that I think we have to address in particular. That problem was raised with me and others by Research in Montion, the BlackBerry people, because it inhibits a company like RIM from responding quickly to a spam virus attack — an attack that could crush their system or parts of their system.

Normally, when immediately faced with a threat, the menace of a virus, a viral attack on their system, RIM has been able to go out into that structure, into that process, and seek out the location, the origination of that attack. The privacy requirements in this bill and the privacy provisions make it difficult for them to react quickly. The company might be able to react, but I think they would have to have certain kinds of provisions to react. It is difficult to find the balance. We are having the same debate on Bill C-6. However, that problem must be looked at and we must discover a way that a company like RIM is not vulnerable to attacks that can be devastating. To this point, they have been able to defend themselves because they have had mechanisms but those mechanisms might be threatened by this particular piece of legislation.

Honourable senators, I do not know exactly what steps will be taken in a concrete way to fix the problem, but of course committee debate and discussion will be a place where the problem can be considered, and I am sure it will be.

The second point is that a couple of questions arise out of this legislation. I am sure government has thought about the questions and perhaps there are specific answers. If not, I expect we will see some of them in future budgets, et cetera. There is the question, of course, of resources for enforcing the provisions of this bill. It is not as though the CRTC has extra money, the Competition Bureau has too much money or the Privacy Commissioner has extra money, and yet they will be given this tremendous responsibility.

To point out an example of this kind of problem, we need only look to the Do Not Call Registry, which receives about 20,000 complaints a month to the CRTC. However, since the inception of that program, the CRTC, faced with 20,000 complaints a month, has issued only about 70 warning letters. Those numbers underline the magnitude of these issues, and they raise the question of what the resources will be and how we can implement this legislation effectively.

The second matter similar in its implications is that the legislation provides for creating a national coordinating body that, according to the Industry Canada website "will synchronize public education and awareness,, track and analyze statistics and trends, and lead policy oversight and coordination."

That sounds like something we need in climate change, it dawns on me — but not to distract. Of course, we can see why that might be the case. There are implications for both levels, provincial and federal, I am sure, in the application of this kind of legislation; policing forces, information-gathering systems, et cetera. There needs to be coordination.

Again, how will this be structured? Where will it be placed? What kind of money will it have? What kind of resources?

Finally, this is a question of the evolution of the administration of this act; there will be huge implications also for international communication and coordination. Often spam comes from other countries. Therefore, it is necessary to coordinate with those other countries in what they are doing to help us and vice versa in any given case or any given policy development matter. The CRTC, the Office of the Privacy Commissioner and the Competition Bureau will need to have the resources and personnel to focus on that relationship and make that relationship work.

I look forward to the next step, discussing the bill in committee and making it perfect.

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