Do mandatory Amber Alert texts conflict with anti-spam laws?

A danger alert SMS on a cellphone screen. Stock photo by Getty Images.

If you are reading this, chances are you have come across the news of Hailey Dunbar-Blanchette’s abduction and murder this week on television, radio or on your social media accounts. What you have not received is an automatic text-message alerting you she was missing.

In Canada, getting mobile Amber Alert text notifications is voluntary, but things are about to change.

The Canadian Wireless Telecommunication Association says slightly more than 45,000 Canadians have signed up to receive automatic Amber Alert messages on their phones. This is a very small fraction of the 28 million mobile users in Canada, illustrating the voluntary system is not very effective.

This is why the CRTC announced in June it will be developing a new system — similar to what is in place in the U.S. — to deliver text alerts to smartphones automatically. The system will alert cellphone users to missing persons, forest fires, contaminations, and other emergencies. A pilot project will begin sometime next year.

Automatic electronic messages, however, often come with privacy concerns.

In 2014, Canada’s anti-spam legislation came into effect. It prohibits sending commercial electronic messages without the recipient’s consent — in the form of emails or text messages. The CRTC can now impose administrative monetary penalties on violators up to a maximum of a million dollars, in the case of individuals, and up to $10 million for organizations. Additionally, the Competition Bureau can ask for monetary penalties or criminal sanctions; and the Office of the Privacy Commissioner has investigative powers if personal information is collected in contravention of the law.

Under anti-spam legislation an electronic commercial message is a message that encourages participation in a commercial activity such as buying a product or asking for an investment.

See: Anti-spam law — FAQ

Automatic Amber Alert texts will not qualify as commercial messages. However, if as a result of a technical glitch, an automatic notification ends up delivering malware or viruses to recipients’ cell phones, it may fall under the definition of “spam” and expose the government to lawsuits by mobile services provides and users. This is why the technical side of the system must be thoroughly worked out.

As long as the texts don’t contravene anti-spam laws, the CRTC has powers under the Telecommunications Act to prohibit or regulate unsolicited telecommunications on the basis of inconvenience or nuisance, but must give due regard to freedom of expression.

Canadian cellphone users must still be given a chance to opt out if they do not want to receive the alerts. In the U.S., mobile users may opt out of Amber Alerts, but not natural disaster ones such as a hurricane.

Should any lawsuits arise, the inquiry on which automatic text messages may be subject to opt outs must balance individuals’ privacy expectations against public safety. The courts may engage in such a balancing test under s. 1 of the Charter, which allows for reasonable limits to be put on our rights and freedoms if the limits are demonstrably justifiable in a free and democratic society.

While waiting on the new system, Canadian cellphone users can text AMBER to 26237 or sign up at WirelessAmber.ca.

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