CANADA S ANTI-SPAM LEGISLATION COMPUTER PROGRAM COMPLIANCE
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1 CANADA S ANTI-SPAM LEGISLATION COMPUTER PROGRAM COMPLIANCE
2 COMPUTER PROGRAMS: CASL S.8 A person must not, in the course of a commercial activity, install or cause to be installed a computer program on any other person s computer system or, having so installed or caused to be installed a computer program, cause an electronic message to be sent from that computer system, unless (a) the person has obtained the express consent of the owner or an authorized user of the computer system and complies with subsection 11 (5); or (b) the person is acting in accordance with a court order DLA Piper (Canada) LLP 2
3 THE PROHIBITION - PURPOSE Meant to reduce instances of malware and spyware but goes beyond that DLA Piper (Canada) LLP 3
4 THE PROHIBITION - DEFINITIONS Incorporates broad Criminal Code definitions: computer program = data representing instructions or statements that, when executed in a computer system, causes the computer system to perform a function computer system = a device that, or a group of interconnected or related devices one or more of which, (a) contains computer programs or other data, and (b) pursuant to computer programs, (i) performs logic and control, and (ii) may perform any other function DLA Piper (Canada) LLP 4
5 THE PROHIBITION - DEFINITIONS install is not defined IC: CASL applies to installing computer programs on someone else s computer system, not installations by persons on their own computing devices DLA Piper (Canada) LLP 5
6 CONSENT Requires express consent, not implied (requirements for express consent as discussed previously) 2 possible levels of disclosure when getting consent DLA Piper (Canada) LLP 6
7 CONSENT BASIC DISCLOSURE Clearly and simply state the purpose for which consent is sought and prescribed information identifying the person seeking consent (same as for CEMs) Clearly and simply describe, in general terms, the computer program s function and purpose DLA Piper (Canada) LLP 7
8 CONSENT ENHANCED DISCLOSURE If computer program performs certain functions, must clearly and prominently, separately from the license agreement: Describe the program s material elements that perform the function, including the nature and purpose of those elements and their reasonably foreseeable impact on the operation off the computer system, and Bring those elements to the person s attention DLA Piper (Canada) LLP 8
9 CONSENT ENHANCED DISCLOSURE CRTC Bring those elements to the person s attention separately from other information provided in request for consent Get written acknowledgement that the person understands and agrees that the program performs the specified functions DLA Piper (Canada) LLP 9
10 CONSENT ENHANCED DISCLOSURE TRIGGERS Programs that the person seeking consent knows and intends will cause the computer system to operate in a manner that is contrary to the reasonable expectations of the owner or authorized user: Collecting personal information stored on system Interfering with control of the system Changing or interfering with settings, preferences, etc., without owner s knowledge DLA Piper (Canada) LLP 10
11 CONSENT ENHANCED DISCLOSURE TRIGGERS Changing or interfering with stored data in a way that obstructs, interrupts or interferes with lawful access to or use of the data Causing system to communicate with another system or device without authorization Installing a program that may be activated by a third party without knowledge Any other prescribed function DLA Piper (Canada) LLP 11
12 WITHDRAWAL OF CONSENT Person who receives express consent for installation of an enhanced disclosure program must: For 1 year after installation, ensure that the consenting person is provided with an electronic address through which to request program s removal or disabling If consent based on inaccurate description program s material elements, on receipt of that request within the 1-year period assist the person in removing or disabling the program as soon as feasible, without cost to the person DLA Piper (Canada) LLP 12
13 ENHANCED DISCLOSURE EXEMPTION Enhanced disclosure requirements do not apply to computer programs that performs any of those listed functions if the function only collects, use or communicates transmission data DLA Piper (Canada) LLP 13
14 TRANSMISSION DATA Relates to the telecommunications functions of dialing, routing, addressing or signaling; Is transmitted to identify, activate or configure an apparatus or device (including computer program), to establish or maintain a communication, or is generated during the creation, transmission or reception of a communication and identifies or purports to identify the type, direction, date, time, duration, size, origin, destination or termination of the communication; and Does not reveal the substance, meaning or purpose of the communication DLA Piper (Canada) LLP 14
15 DEEMED CONSENT CASL S.10 (8) Deemed to have expressly consented to installation of listed computer programs if person s conduct is such that it is reasonable to believe that the person consents to the installation Cookies HTML code Javascripts Operating systems DLA Piper (Canada) LLP 15
16 DEEMED CONSENT CASL S.10 (8) IC regs allow telecom service providers to install programs on customers computers/devices to: Protect network security Update/upgrade network Prevent failure of computer system or program DLA Piper (Canada) LLP 16
17 TELECOM SERVICE PROVIDERS Telecom service provider = a person who, independently or as part of a group or association, provides telecommunications services Telecom service = a service, or a feature of a service, that is provided by means of telecom facilities Telecom facilities = any facility, apparatus or other thing that is used for telecommunications or for any operation directly connected with telecommunications DLA Piper (Canada) LLP 17
18 COOKIE CONUNDRUM? 10(8) specifically mentions cookies in list of deemed consent computer programs so are they computer programs and subject to CASL? IC: cookies are not programs they are not executable, cannot carry viruses and cannot install malware CRTC: cookies are programs but are not installed and so not subject to CASL prohibition DLA Piper (Canada) LLP 18
19 IP ADDRESSES Cannot send CEMs to electronic address IC: IP address is not electronic address because not linked to identifiable person or account (and so banner advertising not subject to CASL) CRTC: IP address may be electronic address, at least in some situations DLA Piper (Canada) LLP 19
20 UPDATES / UPGRADES No consent required for update/upgrade if: Express consent to the installation and use of original program Person who gave consent is entitled to receive the update/upgrade under the terms of the express consent The update/upgrade is installed in accordance with those terms DLA Piper (Canada) LLP 20
21 COMPUTER PROGRAMS TIMING Effective: January 15, 2015 Transition: if program already installed, consent to update/upgrade implied until earlier of: Consent withdrawn January 15, 2018 (3 years after s. 8 in force) Issue = program rules require express not implied consent DLA Piper (Canada) LLP 21
22 ALTERING TRANSMISSION DATA CASL S.7 Altering or causing to be altered the transmission data in an EM so it s delivered to a destination other than or in addition to that specified by sender DLA Piper (Canada) LLP 22
23 PHISHING DLA Piper (Canada) LLP 23
24 MAN IN THE MIDDLE ATTACK DLA Piper (Canada) LLP 24
25 WOMAN IN THE MIDDLE ATTACK DLA Piper (Canada) LLP 25
26 EXCEPTIONS Not in the course of commercial activity Court order ISP Express Consent DLA Piper (Canada) LLP 26
27 EXPRESS CONSENT Same express requirement rules as discussed above If you have express consent: Must also provide an electronic address to which person may send notice of withdrawal of consent Give effect within 10 business days DLA Piper (Canada) LLP 27
28 HARVESTING CASL amends PIPEDA to prohibit address harvesting Cannot collect individual s electronic address with a computer program designed primarily for generating or searching for, and collecting, electronic addresses Cannot use an individual s electronic address collected by such a program DLA Piper (Canada) LLP 28
29 HARVESTING PIPEDA AMENDMENTS Cannot collect personal information through any means of telecommunications by accessing a computer system in contravention of an Act of Parliament Cannot use personal information collected that way DLA Piper (Canada) LLP 29
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