With no legislation yet enacted, Canadian ISPs have implemented a ‘‘notice and
notice’’ policy for handling copyright infringement. This policy would be continued
under Bill C-61. 76 ‘‘Notice and notice’’ was a concept originally proposed in the nowdefunct Bill C-60, which was dropped from the legislative agenda in 2005 with the
collapse of the Liberal government. 77 Under this policy, copyright owners send notices
to ISPs regarding possible copyright infringement by subscribers. Providers then forward these notices to their subscribers—instead of being obligated themselves to remove the content. 78 Even though the notices do not mean that immediate legal
action will follow if infringing activities do not cease, they have been successful in getting significant portions of infringing subscribers to remove their materials. 79
Legal protections against defamation and copyright infringement afforded under
U.S. and Canadian law are in tension with the rights of service providers and Internet
users. This often gives rise to the censoring and self-censoring of material. Canadian
service providers erring on the side of caution may remove content from subscribers’
sites, as U.S. providers do when informed of alleged copyright violations. User material
is therefore subject to censorship based on unsubstantiated claims. Moreover, because
subpoenas offer plaintiffs an avenue for ascertaining subscribers’ identities without
scrutiny, the potential for misuse of these subpoenas can instill a fear of improper
discovery in subscribers that leads to self-censorship. These chilling effects have been
well documented, 80 and while they are indirect rather than direct state-mandated filtering, they constitute real censorship of online speech. 81
Computer Security
Security concerns drive many of the state-mandated limitations on the speech and privacy interests of citizens. These security concerns in the United States and Canada take
two forms: national security and computer security.
Computer security has led to certain content restrictions in the United States and
Canada. Concerns about unwanted messages reaching computers, in various flavors of
spam, have prompted content-based restrictions such as the CAN-SPAM Act of 2003 in
the United States. In Canada, a National Task Force on Spam was convened in 2005 to
study the spam problem. 82 While some laws, such as the Personal Information Protection and Electronic Documents Act, were found to at least tangentially apply to spam,
the task force found a need for legislation directly limiting spam that originates in Canada. 83 The ‘‘Anti-Spam Bill’’ was finally tabled by the Canadian Government on April
24, 2009, as the Electronic Commerce Protection Act (Bill C-27) and is headed for committee review. 84 Government materials accompanying the release of Canada’s ECPA
point to plans to establish a Spam Reporting Centre similar to the U.S. FTC reporting
mechanism. 85 The U.S. Congress has considered a range of options for limiting the free
flow of bits across the Internet to address the problem of malicious software infecting
United States and Canada Overview
379
notice’’ policy for handling copyright infringement. This policy would be continued
under Bill C-61. 76 ‘‘Notice and notice’’ was a concept originally proposed in the nowdefunct Bill C-60, which was dropped from the legislative agenda in 2005 with the
collapse of the Liberal government. 77 Under this policy, copyright owners send notices
to ISPs regarding possible copyright infringement by subscribers. Providers then forward these notices to their subscribers—instead of being obligated themselves to remove the content. 78 Even though the notices do not mean that immediate legal
action will follow if infringing activities do not cease, they have been successful in getting significant portions of infringing subscribers to remove their materials. 79
Legal protections against defamation and copyright infringement afforded under
U.S. and Canadian law are in tension with the rights of service providers and Internet
users. This often gives rise to the censoring and self-censoring of material. Canadian
service providers erring on the side of caution may remove content from subscribers’
sites, as U.S. providers do when informed of alleged copyright violations. User material
is therefore subject to censorship based on unsubstantiated claims. Moreover, because
subpoenas offer plaintiffs an avenue for ascertaining subscribers’ identities without
scrutiny, the potential for misuse of these subpoenas can instill a fear of improper
discovery in subscribers that leads to self-censorship. These chilling effects have been
well documented, 80 and while they are indirect rather than direct state-mandated filtering, they constitute real censorship of online speech. 81
Computer Security
Security concerns drive many of the state-mandated limitations on the speech and privacy interests of citizens. These security concerns in the United States and Canada take
two forms: national security and computer security.
Computer security has led to certain content restrictions in the United States and
Canada. Concerns about unwanted messages reaching computers, in various flavors of
spam, have prompted content-based restrictions such as the CAN-SPAM Act of 2003 in
the United States. In Canada, a National Task Force on Spam was convened in 2005 to
study the spam problem. 82 While some laws, such as the Personal Information Protection and Electronic Documents Act, were found to at least tangentially apply to spam,
the task force found a need for legislation directly limiting spam that originates in Canada. 83 The ‘‘Anti-Spam Bill’’ was finally tabled by the Canadian Government on April
24, 2009, as the Electronic Commerce Protection Act (Bill C-27) and is headed for committee review. 84 Government materials accompanying the release of Canada’s ECPA
point to plans to establish a Spam Reporting Centre similar to the U.S. FTC reporting
mechanism. 85 The U.S. Congress has considered a range of options for limiting the free
flow of bits across the Internet to address the problem of malicious software infecting
United States and Canada Overview
379