From spam to copyright, lots of new laws on the way

For the London Free Press - December 13, 2010 Read this on Canoe

Proposed legislation could have major implications for businesses, consumers

Development and innovation of technology inevitably breeds new laws to regulate that technology. For lawyers practising Information Technology law, there is a considerable amount of potential new law to digest.

For example, Bill C-28, the Fighting Internet and Wireless Spam Act, brings in several anti-spam measures. While this is welcome by most people, the language may take in things we may not consider to be spam and affect how typical businesses communicate. Since the penalties are significant, we need to take a close look at this act before it takes effect to understand what it will mean for a typical business or organization.

Bill C-29 would make several changes to the Personal Information Protection and Electronic Documents Act. Most of these were expected - and welcome - because they address issues arising from the current law.

But there are new parts that could use clarification. Language that tries to clarify what constitutes "lawful authority" to release information to law enforcement when requested doesn't make clear what proof or threshold of proof is required. It also contains language requiring that the privacy commissioner and affected individuals be notified of breaches in some circumstances. The language has threshold tests, which on the surface are not as clear as they might be. If this language stays, it may take a decision by the privacy commissioner and/or a court to clarify the threshold.

Bill C-32, the Copyright Modernization Act, is the latest of several attempts to amend the Copyright Act. Controversial elements include digital lock provisions that would let publishers trump user rights. Much has been written about this, including a book entitled From Radical Extremism to Balanced Copyright: Canadian Copyright and the Digital Agenda, written by several copyright experts.

Bill C-51, which would amend the Criminal Code, Competition Act and Mutual Legal Assistance in Criminal Matters Act a.k.a. Investigative Powers for the 21st Century Act, is the latest effort to give law enforcement more access to electronic communications.

But what proponents call "lawful access" bills, critics deride as "awful access" bills. They question whether making things easier for law enforcement is worth the significant erosion in privacy and extra costs to Internet service providers.

These bills may have far-reaching practical implications, not only for many businesses and organizations, but also for consumers.