Island Linux Bits and Bytes of Technology

My earlier posts on Canada's anti-spam law focused on claims about restrictions involving family and personal relationships as well as the exaggerated concerns about the impact on small and medium sized businesses. This post tackles one of the strangest criticisms of the Canadian anti-spam law to date: the claim that it discriminates against charities, schools, and other not-for-profit organizations. In fact, the opposite is true since the law features additional protections for these groups that are not otherwise available to conventional commercial businesses. 


For charities, schools, and other similar organizations, there are at least two broad exceptions that cover their business activity. The first is the existing business relationship exception that allows for implied consent for two years after the purchase of a good or service as well as six months for an inquiry (there is an additional three year delay in the implementation of this provision once the law takes effect). The exception also covers written contracts if dealing with something other than goods or services. This exception is open to any organization - both for-profit and non-profit - so long as the activity fits within the definition.  For hospitals, schools, and other non-profits, these means that  many of their services will invariably be captured by the exception (either by way of the goods sold, services provided, or an underlying contract). Barry Sookman argues that these groups will be excluded from the implied consent provision for some of their services:

For example, when a college or university provides educational services to students, when a hospital or physician provides medical services to patients, when a charity provides services to the community, or when organizations such as hospitals and universities collaborate on research, and in the course of those activities send CEMs, none of them will be able to rely on the implied consent EBR exception, unless serendipitously a business relationship happens to arise from these or other interactions.

Yet several of these examples would certainly fall within an existing business relationship (for example, the payment of tuition fees by students). In other instances, it is hard to envision how this creates a serious problem. In the case of medical services, some services qualify as business activities (e.g. examinations on behalf of an insurance company) and best practices already mandate explicit opt-in consent for health privacy, which is widely viewed as particularly sensitive information. As for collaborative research between a hospital and university, those two institutions will typically have a business agreement that governs intellectual property issues and other responsibilities. That would allow for business-to-business emails between the two parties. Moreover, individual researchers would be covered by the personal relationship exception and project funders will have a business relationship and an underlying contract.

In addition to the existing business exception, these organizations can also rely on the non-business relationship exception, which is reserved for charities, political parties, and membership organizations. This exception implies consent for a wide range of "non-business relationships" including donations to charities and political parties over the prior two years, volunteer work over the prior two years for a charity or political party, attendance at a meeting organized by a charity or political party, or membership in club, association, or voluntary organization.

Sookman also claims that these organizations cannot rely on the exception for openly available addresses without a do-not-contact request. As noted yesterday, almost anyone that publishes their email address without a clear statement that they do not wish to receive commercial messages is fair game. The exception is not limited to businesses, however. The exception says implied consent is available where:

the person to whom the message is sent has conspicuously published, or has caused to be conspicuously published, the electronic address to which the message is sent, the publication is not accompanied by a statement that the person does not wish to receive unsolicited commercial electronic messages at the electronic address and the message is relevant to the person’s business, role, functions or duties in a business or official capacity

This would cover charities or other organizations that publish emails addresses and the emails that follow are relevant to the person's functions or duties in an official capacity with the organization.

In short, far from discriminating against charities, hospitals, and schools, the law actually provides them with more benefits and flexibility than is provided for conventional businesses. Both have long phase-in periods and broad exceptions that will permit implied consent for years after the law has taken effect.

The criticism against Canada's anti-spam legislation extends beyond absurd claims about restrictions involving family and personal relationships. Indeed, much of the discussion has focused on the impact of the law on small and medium sized businesses. Barry Sookman catalogs a wide range of supposed concerns, most of which appear to envision a world in which the only way for a new business to develop a customer base is to obtain marketing lists and send unsolicited commercial emails to potential customers.

It is true that the starting point of the law is that businesses must have consent before sending commercial emails. Canada is moving to an opt-in world that gives consumers greater control over their in-boxes and will ultimately provide businesses with higher quality lists of people who genuinely want to receive their messages. Notwithstanding the default requirement for opt-in consent, however, the law contains numerous exceptions that are available to businesses of all sizes and which allow small and medium sized businesses to engage in active (and likely more effective) email campaigns. The exceptions include:


Personal and Family relationships. Far from being limited to best friends, the personal relationship exception is extremely broad, covering a wide range of relationships. For businesses starting out, those personal relationships will often be important and the law allows for commercial emails in many of these circumstances.

Openly available email addresses. Almost anyone that publishes their email address without a clear statement that they do not wish to receive commercial messages is fair game. The law allows for implied consent (implied in this case because they have published their email address without the notice) where:

the person to whom the message is sent has conspicuously published, or has caused to be conspicuously published, the electronic address to which the message is sent, the publication is not accompanied by a statement that the person does not wish to receive unsolicited commercial electronic messages at the electronic address and the message is relevant to the person’s business, role, functions or duties in a business or official capacity;

In other words, claims that new businesses will not be able to identify potential business contacts and contact them via email are false. The law allows businesses to develop a list of contacts and to send them relevant email messages provided the email is published without the do-not-contact statement.

Third party referrals. The new regulations have added a third party referral exception that represents a huge loophole in the law. It will allow businesses to greatly extend their networks without the need for additional consents.

Business to business emails. The law includes a specific exception for business-to-business emails that remove the need for further consent. This ensures that existing business relationships are largely unaffected by the law. The business-to-business exception covers email:

to an employee, representative, contractor or franchisee of another organization if the organizations have a business relationship at the time the message was sent and the message concerns the affairs of the organization or that person’s role, functions or duties within or on behalf of the organization;

All emails sent in response to a request, inquiry or complaint.  The law includes an exception for inquiries or requests from customers exempting email "that is sent in response to a request, inquiry, complaint or is otherwise solicited by the person to whom the message is sent." This exception removes the need for further consent.

Existing business relationships. Consent is implied for existing business relationships, which includes everything from having purchased a product or service over the prior two years to instances where a consumer has merely made an inquiry within the prior six months. Moreover, this exception is effectively extended for three years from whenever the law takes effect, giving businesses nearly ten years from when the bill was first tabled to ask for explicit consent. Until the explicit consent requirement kicks in, businesses with a relationship will be entitled to rely on implicit consent.

Non-business relationships. The law also implies consent for a wide range of "non-business relationships." This covers donations to charities and political parties over the prior two years, volunteer work over the prior two years for a charity or political party, attendance at a meeting organized by a charity or political party, or membership in club, association, or voluntary organization. This exception is also extended for three years from whenever the law takes effect, giving those organizations nearly ten years from when the bill was first tabled to ask for explicit consent.

Purchase of existing business.  The law extends the existing business relationship even when a business is sold. In other words, if you buy a business all their contacts and customers may be used by the new owner.

This is a very long list of exceptions for businesses of all sizes and hardly the catastrophe that some suggest. While it will require some businesses to obtain express consent or to modify marketing practices that were based on sending large scale unsolicited commercial email, the result should be better, more effective online marketing for businesses and greater control over their in-boxes for Canadians.

Yesterday's post on the fears associated with Canada's anti-spam legislation focused on emails between extended family members. This post will examine personal relationships and the absurd claims that the current rules will stop everything from emailing a teacher to promoting a lemonade stand. Barry Sookman writes that the following would all likely be illegal under CASL:

• E-mailing or sending a BBM message to your child’s teacher to ask him/her to tutor your child. A child emailing his/her teacher for the same purpose would also be illegal.
• A student e-mailing a student a year ahead to buy a textbook or a student trying to sell used textbooks to students in another grade.
• A mother sending out an e-mail to her daughter’s friend to ask her to baby sit.
• A child soliciting a parent of a friend to shovel snow or mow a lawn for some extra cash.
• A child sending out emails to invite neighbors to buy a glass of lemonade at his/her lemonade stand.
• A person e-mailing neighbors on the street asking for a donation to fight a planned development or environmental threat.
• A parent teachers group e-mailing a school principal encouraging him or her to purchase new equipment or learning materials or to do a renovation that would enhance their children’s learning or learning environment.
• A child e-mailing her parents friends to buy Girl Guide cookies or to sponsor her in a school event.
• Neighbors or acquaintances e-mailing each other to set up a carpool and to share the costs.
• E-mails sent out to acquaintances, colleagues, and business contacts asking them for sponsorship in a charitable event such as to raise money for cancer research or many other worthy causes.
• E-mailing an old friend who moved away and asking him/her to buy you hockey tickets so that both of you could see your home team when your visit.
• E-mailing an old friend you haven’t spoken to in a while to help find a job or to ask for a referral or to tell the friend about your new job (and the products and services it sells).
• E-mailing an old classmate to ask if he/she would be interested in investing in a new venture you are starting.

The reality is that some of these examples are not even covered by the law without the need to delve into the regulatory exceptions. For example, the law only covers commercial electronic messages, which would likely exclude activities such as arranging a carpool. Commercial electronic messages require the encouragement of commercial activity, which the law defines as transactions, act or conduct that is of a "commercial character". As anyone who has arranged a carpool for their kids can tell you, a reasonable interpretation of non-commercial carpooling would find that it does not meet that standard (even with "shared costs").

The email from the mother to a daughter's friend to ask her to babysit is actually an inquiry as to whether the daughter is available to babysit (the daughter's friend is the service provider, not the parent) and subject to the inquiry exception. The law exempts commercial emails that are "sent to a person who is engaged in a commercial activity and consists solely of an inquiry or application related to that activity." In the event that the email is confirming a prior arrangement, there is likely consent for the message or coverage under an exception for information directly related to an employment relationship.

There are other examples that likely involve prior consent, such as emailing a child's teacher or school principal. Most of the remaining examples would be exempted by the personal relationships exception such as students emailing each other, old friends or classmates emailing one another, or neighbours exchanging emails.

The repeated reference to neighbours emailing each other is particularly odd. I know the email addresses of a few of my neighbours, but only the ones with whom I have a personal relationship. I am not aware of many neighbourhoods where everyone's email address is widely known such that emails go out promoting lemonade stands or local advocacy. Rather, most of that information is disseminated in physical form, specifically because the email addresses of all your neighbours isn't typically available. While there may be exceptions, those are likely instances where the community has actively requested the email addresses for use by the community (often going door-to-door), so those on the list have provided consent (or else it involves marketing companies linking various databases to map contact information on a geographic basis, which is precisely the kind of activity the law seeks to stop if there is no consent).

Applied to Sookman's example, the lemonade stand concern makes little sense.  Emails sent to people in the neighbourhood will invariably meet the personal relationship requirement (or have consent) since there is no other obvious way to obtain those email addresses. Without such a relationship or consent, the sender simply doesn't have the necessary email addresses to send throughout the neighbourhood. So lemonade stands may be safe, but what of many other small and medium sized businesses? More on why the law does not represent a dire threat to those businesses tomorrow.

The New Zealand tribunal responsible for copyright graduated response cases has issued its first decision. The tribunal ordered an individual to pay $616.57, which included $6.57 for three songs, $50.00 for notice fees, $200 for the application fee, and a $360 deterrent fee ($120 per song). Most striking is that the New Zealand law forces the tribunal to statutorily presume infringement, despite an absence of evidence and denials by the individual.

Over the past couple of weeks, there have been a myriad of posts and articles criticizing Canada's anti-spam legislation. According to some posts - primarily those by Barry Sookman - the legislation will stop family members from sending commercial email to each other, parents from promoting their children's lemonade stands, and discriminate against charities and schools.  Is this true?  In a word, no. While there is little point in unpacking each of the many outrageous claims, over the next few days I'll offer up a few posts on some of the crazier ones.

Today's post focuses on the suggestion that families will be stopped from sending commercial messages to other family members. Sookman writes:

Under the proposed regulation, sending an email to your second cousin offering to sell a snow blower or a used baby crib would become illegal. (CASL has no de minimis exception.) It would be illegal to send an email to a retired great uncle asking for an investment or business advice to help start-up a business. It would also be illegal for a divorced spouse to email her/his ex spouse asking for a loan to cover unexpected expenses or medical bills. The ex-spouse could also insist on unsubscribing from receiving emails asking for such financial help. A child that e-mails his/her step-parent asking for a loan to cover tuition would also violate CASL.

Sookman's suggestion that the child and step-parent email does not qualify as a family relationship is simply wrong as it is a marriage to a blood relative and therefore fits within the definition in the regulations. As for the remaining examples, assuming that there is a personal relationship with the second cousin, great uncle, and divorced spouse, all of these qualify for the personal relationship exception. The personal relationship exception covers:

“personal relationship” means the relationship between an individual who sends the message and the individual to whom the message is sent, if
(i) those individuals have had direct, voluntary, two-way communications and it would be reasonable to conclude that the relationship is personal taking into consideration all relevant factors such as the sharing of interests, experiences, opinions and information evidenced in the communications, the frequency of communication, the length of time since the parties communicated and if the parties have met in person, and
(ii) the person to whom the message is sent has not indicated that they no longer wish to receive any commercial electronic messages, or any specified class of such messages, from the person who sent the message.

This a broadly worded, flexible exception (arguably too broad) that surely covers relationships with extended family members, who will have had direct, voluntary communications, will have often have met in person, and would have common experiences. Leaving aside the fact that no enforcement agency would ever contemplate taking action in these circumstances, they will not need to do so since the law already exempts such messages through regulation. With the family on safe ground, tomorrow's post will take a closer look at the lemonade stand and other neighbourhood activities.

Canadians frustrated with ever-increasing cable and satellite bills received bad news last week with the announcement that the Canadian Radio-television and Telecommunications Commission will consider whether to require cable and satellite companies to include nearly two-dozen niche channels as part of their basic service packages.  If approved, the new broadcast distribution rules would significantly increase monthly cable bills with consumers forced to pay for channels they may not want.

My weekly technology law column (Toronto Star version, homepage version) notes that two issues sit at the heart of the broadcast distribution rules.  First, whether the CRTC should grant any broadcaster mandatory distribution across all cable and satellite providers such that all subscribers are required to pay for them as part of their basic packages. Second, in the absence of mandatory distribution, whether broadcast distributors should be required to at least offer the services so that consumers have the option of subscribing.

Twenty-two channels are vying for mandatory distribution status as part of the current review, which includes a comment period and a hearing scheduled for late April. Some have likened the process to winning the lottery, since mandatory distribution guarantees broadcasters millions in revenues. For example, 25 cents per subscriber - the amount the Aboriginal Peoples Television Network currently receives - generates $30 million in revenue in each year for the broadcaster (it wants the fee to increase to 40 cents per subscriber).

These proposed cash grabs could add hundreds of dollars to cable and satellite bills if approved. Sun TV News, which previously disavowed mandatory distribution by likening it to a tax on all cable and satellite subscribers, now wants the CRTC to require those subscribers to pay it 18 cents per month until 2017.  Starlight, a proposed new Canadian film channel, hopes to generate hundreds of millions in revenues from mandatory distribution, much of which would be used fund the creation of new Canadian films.  

While the financial benefits for broadcasters are enormous, the policy represents a near-complete elimination of consumer choice for the channels at issue. Rather than convincing millions of Canadian consumers that their services are worth buying, the broadcasters need only convince a handful of CRTC commissioners that their service meets criteria such as making "an exceptional contribution to Canadian expression." That is supposedly a high bar, yet it is surely far easier than convincing millions of people to pay for your service each month.

Last year, CRTC chair Jean Pierre Blais emphasized that the Commission's top priority was to "put Canadians at the centre of their communications system."  The mandatory distribution rules do the opposite.  Rather than focusing on consumer interests and choice, the rules place broadcasters at the centre of the communications system by offering up the prospect of millions in revenue without regard for what consumers actually want.

There are few, if any, broadcasters that can be considered so essential as to merit mandatory distribution. Niche cultural broadcasters have a myriad of distribution possibilities and should be forced to compete like any other content creator or distributor.  In fact, even broadcasters that position themselves as "public services" can often be replicated by Internet-based alternatives.

While the anti-consumer mandatory distribution rules should be scrapped, the Commission can enhance consumer choice by making "must offer" the default for broadcast services.

Cable and satellite companies should theoretically welcome the chance to offer more options to subscribers, but the vertical integration between broadcasters and broadcast distributors may create anti-competitive incentives. With Bell, Rogers, Shaw, and Videotron each controlling a major broadcaster, it may make economic sense for those distributors to prioritize their own channels while offering their customers less choice.  

The role for a CRTC that places Canadians at the centre of their communications system is obvious - stop treating Canadians as ATMs for the broadcasters by dropping mandatory distribution altogether, while requiring broadcast distributors to offer all licensed channels to their subscribers in a pick-and-pay format so that at long last consumers get to decide what they want to watch and pay for.

The European Commission has posted a public update on the status of the agricultural provisions in the proposed Canada - EU Trade Agreement. The EC says the goal is to conclude the agreement at a Ministerial meeting in Ottawa on February 7th, though reports suggest that may be overly optimistic.  The state of the agricultural provisions is described as follows:
In agriculture, both sides have agreed to liberalise most trade, except for products considered sensitive: beef, pork and sweet corn for the EU; and products under the supply management regime, i.e. dairy, poultry and eggs, for Canada. An understanding has been reached that these products will not be liberalised but that new market access will be granted in the form of tariff quotas, with Canada asking for the exclusion of poultry and eggs.

A major stumbling block in this end-game is the establishment of tariff quota volumes which would be acceptable to both sides. Canada is asking important volumes of beef, in particular fresh and chilled, as well as of pork, while offering very modest dairy volumes in exchange. 
The Commission is well aware that the EU capacity to open its meat markets is limited, and any market opening needs to take into consideration the interaction between the different free-trade agreements, on-going and forthcoming ones.

Positive results can be expected in the wine and spirits sector, with disciplines on discriminatory practices applied by Canadian provinces. The EU has also made clear that a satisfactory result is necessary on geographical indications, i.e. enhanced protection of EU geographical indications in Canada.

Note that the geographical indications provisions - which target products such as feta cheese or parma ham - could include new rules on border measures. While the new information is helpful (and largely confirms prior media reports), it is worth asking why almost all official CETA information now comes from Europe as a cone of silence has descended on the Canadian delegation.  For several years, Canadian officials provided regular updates with an opportunity for open questions. The last update occurred in October with no new updates despite near-continuous negotiations toward a final text and multiple updates and leaks from Europe.

I’ve been sitting on this one for too long. Well not so much sitting, as bopping in my chair. The dog’s been looking at me funny. You will be too. I mean the bopping, more than the looking funny. You are beautiful. I swear.

So much good music this year. And I just have to keep the tradition alive (search this blog for music mixes going back to 2006). I know you guys need you fix of the yearly music mix. enjoy!

01.    Edward Sharpe & The Magnetic Zeros     Man on Fire 02.    The Lumineers     Ho Hey 03.    Electric Guest     This Head I Hold 04.    Miike Snow     Bavarian #1 (Say You Will) 05.    Passion Pit     Take A Walk 06.    Stealing Sheep     Shut Eye 07.    Crystal Castles     Plague 08.    alt-J     Matilda 09.    Grimes     Oblivion 10.    The XX     Angels 11.    Tycho     A Walk 12.    Washed Out     Amor Fati 13.    Yppah     R. Mullen 14.    Now, Now     Dead Oaks 15.    Islands     This is Not A Song 17.    Bat For Lashes     Laura 18.    Beach House     Myth 20.    Diamond Rings     I’m Just Me 21.    Hot Chip     Look At Where We Are 22.    Sea Wolf     Old Friend 23.    Joel Plaskett Emergency     Harbour Boys 24.    Skinny Lister     If The Gaff Don’t Let Us Down 25.    Chromatics     Kill for Love

Two good options, download the whole thing as a big-ass-zip-file here: Tom’s best of 2012 zip file
Or if you Rdio, you can follow me and stream [almost all] the playlist here: Tom’s best of 2012 Rdio Playlist

pictured: Diamond Rings, San Francisco 2012

First I hired a gastroenterologist to help figure it out. This disagreement I was having. His name was Dr Man, very nice guy. Though secretly I wished his name was Magnum. Then I could say that Magnum GI was on the case.

It at last came to this because my own belly and I of late have come to certain difference of opinion on the relative merits of wheat gluten. Obviously wheat gluten is delicious. This is the argument my brain and mouth try and tell my other organs. But another faction within body is convinced gluten is some kind of murderous toxin, that it must tie my innards in knots to get rid of it. And so I’ve been trying to go gluten free. Going gluten free is hard. I find myself creating a lot more of my food. I find myself buying oats by the bushel to get that carb fix. Damn I miss [real] croissants. Meanwhile I find myself learning how to bake, owning mysterious ingredients like xantham gum or sourgum flour.

But there are upsides to having to DIY your own baked goods. This awesomeness is one of them. Perfected over the last few weekends for your enjoyment.

1/4 Cup brown sugar (seriously cut down from other cookie recipes)
1 Cup butter (mmm butter)
2 eggs
1 tsp Vanilla (better: 1tblsp ground Tahitian Vanilla)
1 tbsp spiced rum (Kraken, Sailor Jerry or Goslings)
1 tsp Baking Soda
1 tsp Baking Powder
Pinch salt
1 tsp Xantham Gum
1 tsp Guar Gum (in a pinch, 2tsp of either)
1/2 cup Sorghum flour
1/2 cup white rice flour
2.5 cup Gluten-free oats ( on Amazon)
1 tsp ground ginger
1 tsp cinnamon
1 fistful Candied/Crystallized Ginger

If solid, nuke the butter for 30s or so til mushy or half melted. Then cream it with sugar. Stir in eggs, rum, vanilla. Fold in the dry ingredients and spices (feeling fancy, you can sift together the dry ingredients first in another bowl). Now stir in oats. Rinse or soak the ginger for couple minutes to remove excess sugar. Dry and shop into bit-sized bits. Stir ginger into mix. Spoon cookie dough onto cookie sheets. Makes about 2 baking sheets worth of cookies. 350, 11 min, will do the rest. Allow to cool on the baking sheet before removing.

Serve with a tot of your darkest rum. For dipping. Zomg.

There you have it, awesome super-gingery oatmeal cookies. For my non-gluten-free friends, just call these Oatmeal Dark and Stormies… and thank me later

Tags: cookies

Some of my dearest Toronto friends Leila Boujnane and the crew at Mozilla Toronto are putting on an event combining two of all of our favourite things: robots and hackathons. I wish I could go! But alas the west coast is a little out of the way. So I need your help to help me help them. First you need to vicariously go for me. Build fantastic bots! Second, Leila needs sponsors.

Sez Leila:

Help us make this robotics hacakthon happen http://www.getyourboton.com/. We need to raise $5,000 in 10 days to acquire all the hardware required! That’s 200 people donating $25. Do I have 200 friends who could help? or perhaps just 100 friends with $50 to donate? I am organizing a robotics weekend hackathon at the end of November and would really appreciate your help to give people a chance to build a robot in a single weekend with support of mentors, volunteers and hardware fans! I believe in our generous community! Can you friends help?

Robots are always a good cause. I chipped in, you should too. Myself I’ll next be back in Toronto in early December, I’ll expect to shake hands with your robot.

When: Friday, November 23 at 6:00 pm
Where: Mozilla Offices – MozSpace
366 Adelaide Street West, Suite 500
Toronto, Canada
Go to Google Maps

LINK: tickets and sponsorship via GuestListApp

As it is with everything in the world, good things can’t last forever. Dreamhost was great and has seen me through millions and millions of page views with just a few pennies thrown their way in return.

To scratch my own itch, I’ve moved this blog to Amazon on a micro instance. The bonus is that it’s a real, virtualized machine, and I can run my own stack on it however I please. CloudFlare seems nice, they’ll host my DNS records for free and cache bunches of stuff… Varnish is pretty damn brilliant, let’s turn that on. WordPress/W3TC, Apache and PHP APC round out the regular suspects. Giving MySQL some breathing room. Done! Seems like I should start writing again so that I can see if my machine can survive a good Reddit attack.

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