The proposed regulations contain a critical provision that requires express consent from users before software can be installed in a computer. The provision specifically states that a person must not, in the course of a commercial activity, install have someone install computer program on any other person’s computer system.
If a computer program has been installed, the provision states, the installer or the person who ordered the installation must not cause an electronic message to be sent from that computer system, unless expressed consent of the owner or authorized user of the machine is obtained or if the act is in accordance with a court order.
“CASL’s computer program rules could make it illegal for Canadian organizations to fight threats to their computer systems, networks and to their customer’s personal information and privacy,” the coalition’s submission said. “…This could result in law abiding organizations that are trying to do the right thing in the face of cyber threats inadvertently violating CASL.”
The group proposed the creation of a “Review Body” to look into the draft regulations once more before it comes into effect with the “consideration of limiting the scope of the computer program provision to malware and spyware.”
Interestingly, the first exemption the coalition proposed deals with the type of programs the provision addresses. The coalition wants exempted:
(a) A program that is installed by or on behalf of a person to prevent, detect, investigate, or terminate activities that the person reasonably believes (i) presents a risk or threatens the security privacy, or unauthorized or fraudulent use of a computer system, telecommunications facility or network or (ii) involves the contravention of any law of Canada, or a province or municipality of Canada or of a foreign state.
At least one privacy advocate argues that admitting this and other exemptions allows “surreptitious” surveillance by copyright owners.
“This provision would effectively legalize spyware in Canada on behalf of these industry groups,” wrote Michael Geist University of Ottawa Internet law professor in his blog yesterday. “…a software program secretly installed by an entertainment software company designed to detect or investigate alleged copyright infringement would be covered by this exception.”