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Canada's Do-Not-Call Disaster

How a good idea to protect your privacy was bungled.

By Michael Geist 3 Feb 2009 | TheTyee.ca

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

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CRTC, do your job!

When Canada's do-not-call list was launched last September, two outcomes were easy to predict. The first was that the list would prove enormously popular with millions of phone numbers registered in a matter of months. The second was that Canadians would ultimately be left disappointed with little reduction in unwanted telemarketing calls, and concerns about the ability of the Canadian Radio-television and Telecommunications Commission to enforce the law.

Four months later, the do-not-call list contains roughly six million registered phone numbers and, as expected, there are a growing number of Canadians -- including Industry Minister Tony Clement -- who are expressing misgivings about the potential for abuse.

Three big problems

The problems associated with the do-not-call list fall into three categories. The first, which was readily apparent years before the list became operational, is that there are far too many exceptions that allow for the majority of telemarketing calls to continue unhindered. With exceptions for survey companies, political parties, charities, newspapers, and businesses with a prior relationship, some estimate that 80 per cent of telemarketing calls are not covered by the do-not-call legislation.

The second problem revolves around the technical structure of the do-not-call list. As has been well reported, the list -- all six million numbers -- is available to any telemarketer. With numerous reports of abuse, the danger of making the numbers available to the very organizations precluded from calling those same numbers is now readily apparent.

The third problem is tied to enforcement. The do-not-call legislation includes provisions for significant penalties, but it falls to the CRTC to investigate complaints and pursue penalties. There have been many complaints filed with the CRTC, but to date, no penalties.

Some of the enforcement problems are linked to jurisdiction -- the CRTC's jurisdictional mandate ends at the border and its ability to levy penalties against an out-of-country organization is very limited -- but there is also mounting evidence that Canadian companies are disregarding the CRTC's own rulings and effectively daring the commission to bring actions.

For example, last summer the CRTC ruled that do-not-call requests registered through third-party services such as iOptOut.ca (a site I founded) were valid and should be honoured. IOptout.ca has generated nearly eight million opt-out requests. However, there have been several online reports that blue-chip companies such as Bell Canada and the Bank of Nova Scotia are refusing to accept the opt-out requests, in direct contravention of the CRTC ruling.

How to save the list

With many more do-not-call registrations likely on the way and Clement vowing to take action, can the do-not-call list be saved?

The short answer is yes, though reversing the do-not-call disaster will require action from both the government and the CRTC. The government should start by paring back the current overbroad exceptions. A do-not-call list that exempts the majority of telemarketing calls is bound to disappoint and the only way to address that issue is to return to the bill as it was originally presented in the House of Commons: without exceptions.

Further, Clement should open talks with the United States to address some of the jurisdictional limitations of the do-not-call list. Given that the U.S. faces some of the same concerns, a mutual recognition approach that would establish a North-America-wide do-not-call list is a logical next step.

Meanwhile, the CRTC must also step up to the plate. It bears responsibility for enforcing the law and it needs to send a strong signal that it is fully prepared to investigate complaints and to levy tough penalties for non-compliance. In that regard, the commission should target high-profile organizations to send the message that no one is above the law.

Given its remarkable popularity, doing away with the do-not-call list is not an option. The government bought it, then broke it, and now it must fix it.

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