CASL Private Right of Action Delayed

Today the Canadian Government announced they were suspending the provision that allows individuals to sue marketers for violations of CASL.
Under these provisions, individual Canadian consumers had a private right of action. Any Canadian could sue any company that sent mail violating the law. This part of the law upset many senders and marketers. I’m sure many are relieved at this delay in enforcement.
 
This delay has no effect on the other major CASL provision with a July 1, 2017 deadline.
On July 1 a 3 year waiver on implied consent collected prior to CASL will end. What does that mean? Implied consent is just what it sounds like. Under certain conditions, senders can assume they have legal consent to mail the recipient. These conditions are spelled out in Section 10(9) of the law. Implied consent expires after 2 years. However, companies were granted a 3 year waiver on this provision for email addresses collected prior to July 1, 2014.
The waiver allowed senders to continue mailing addresses with implied consent even after the 2 year expiration.  This was to allow companies time to convert implied consent into express consent as to not lose recipients. There are about 3 weeks left for senders to get explicit permission to continue mailing addresses collected prior to July 1, 2014.
Additionally, as of July 1, 2017 CASL requires a parliamentary committee to review the law and its operation over the last 3 years.

Many senders are thrilled with the indefinite suspension of the PRA. It was, I think, one of the parts of the law that worried people the most. Allowing any citizen to sue someone who sent them mail they thought violated CASL? That concept struck fear into the hearts of many a legitimate marketer. I was never quite so sure it was going to be as bad as some thought.
A few years ago I had the opportunity to sit in a conference session with an individual from the Canadian government. They explained that there were significant barriers to individuals suing senders. Plaintiffs must file in provincial courts, not local ones. Second, defendants couldn’t be under investigation by the CRTC and a PRA at the same time. The presenter implied that CRTC had priority over any joint defendant. Finally, the plaintiff must prove actual damages. This is difficult for defendants that use a freemail provider like Gmail. There aren’t really damages in that case.
The overall gist of the session was that PRA in Canada was not that simple. Individuals wanting to sue had some bigger hoops to jump through than just filing something in small claims court. Nevertheless, I’m sure that many senders are relieved to hear the PRA is indefinitely suspended.

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March 2017: The Month in Email

It’s that time again… here’s a look at our last month of blog posts. We find it useful to recap each month, both to track trends and issues in email delivery and to provide a handy summary for those who aren’t following along breathlessly every single day. Let us know if you find it useful too!

As always, I wrote about email filters. It’s so important to recognize that filters aren’t arbitrary — they’re detailed instructions that help meet specific user needs, and the more you are cognizant of that, the better you’ll be able to work with them. Additionally, filters aren’t perfect and likely never will be. False positives and false negatives are frustrating, but as long as spam is still a viable business for spammers, they’ll continue to figure out how to work around filters. As such, we can’t expect filters to be 100% accurate in determining what constitutes wanted and unwanted mail.
Part of this, of course, is due to the problem of fraudulent signups. Companies aren’t particularly vigilant about address acquisition and hygiene, and as a result, they’ll claim you “signed up” for their email when you did not. Some people believe that a confirmed opt-in (COI) will solve this problem, but our experience is companies are reluctant to leave revenue on the table, and that they will continue to mail to addresses that have not confirmed.
Address sharing and co-reg is also part of the problem. As we saw in the extensive RCM data breach, many major brands continue to work with third-party senders to send mail in ways that are quite clearly spam. And in more criminal activity, I looked at the rise of botnets and how some of those criminals were brought to justice. In other justice news, there’s been an indictment in the Yahoo breach and another CASL enforcement action.
I wrote a post about bounce handling and “relaying denied” error messages, which are quite rare. It’s useful to have an understanding of these and other error messages, since bounces are sometimes indicative of a larger technical issue, such as when AOL accidentally bounced all messages for a short period last week. Speaking of AOL, we noted that there’s no official timeline for the move from Verizon addresses to AOL addresses following the 2015 acquisition, but it may be worth considering asking your customers to update their addresses.
Spam and filters aren’t the only factors of course. It can be challenging to figure out the multiple factors that make up the black box of delivery. And of course, the most important part of delivery continues to be engagement, engagement, engagement.
I wrote a few posts this month on why I do what I do, and why it’s so important to me. First, I wrote about A Day Without A Woman, and my choice not to participate in offering advice and guidance for that day. The truth is that I enjoy sharing what I know and helping people solve problems. I was honored to be named one of 11 Innovators in Email, and I know that my volunteer work in the industry and my unpaid blogging work is a big part of that. It may sound corny, but I really do believe we are on the front lines of the fight of good vs. evil online, and despite the distractions of politics and world events, we must all continue to do our part.

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CASL botnet take down

biohazardmailThe CRTC served its first ever warrant as part of an international botnet takedown. The warrant was to take down a C&C (command and control) server for Win32/Dorkbot. International efforts to take down C&C servers take a lot of effort and work and coordination. I’ve only ever heard stories from folks involved but the scale and work that goes into these take downs is amazing.
Bots are still a problem. Even if we manage to block 99% of the botnet mail out there people are still getting infected. Those infections spread and many of the newer bots steal passwords, banking credentials and other confidential information.
This kind of crime is hard to stop, though, because the internet makes it so easy to live in one country, have a business in a third, have a shell corp in a fourth, and have victims in none of those places. Law enforcement across the globe has had to work together and develop new protocols and new processes to make these kinds of takedowns work.
 

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What do you think about these hot button issues?

bullhornIt’s been one of those weeks where blogging is a challenge. Not because I don’t have much to say, but because I don’t have much constructive to say. Rants can be entertaining, even to write. But they’re not very helpful in terms of what do we need to change and how do we move forward.
A few different things I read or saw brought out the rants this week. Some of these are issues I don’t have answers to, and some of them are issues where I just disagree with folks, but have nothing more useful to say than, “You’re wrong.” I don’t even always have an answer to why they’re wrong, they’re just wrong.
I thought today I’d bring up the issues that made me so ranty and list the two different points of views about them and see what readers think about them. (Those of you who follow me on Facebook probably know which ones my positions are, but I’m going to try and be neutral about my specific positions.)

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