Brooklyn Law Review


U.S. businesses periodically adjust their marketing practices to foreign law innovations. Several years ago, U.S. businesses emailing into Canada had to incorporate Canada’s Anti-Spam Law, otherwise known as CASL. Businesses that believed they email only U.S.-based customers likely dismissed CASL as not applicable. Others may never have heard of the law altogether. As this note discusses, CASL created a compliance conundrum for U.S. businesses. Since CASL methodically differs from the U.S. anti-spam law, CAN-SPAM, it may be in a business’s best interest to apply this law to its Canadian subset and not to the entire email population. Neither the law itself nor the regulatory agency, ISED, however, provides specified directives of data segmentation to discern a U.S. resident from a Canadian resident. Surely, generic domain extensions like “.com” do not point to a location on a map. Hence, even those businesses that comply with CASL for a subset of their email base are unlikely to achieve a one hundred percent compliance rate. This note shows how easy it is for a U.S. business, without realizing, to email into Canada. CASL's current low rate of enforcement and the pause of a private right of action mask the reality that without a viable foreign sender exemption, U.S. businesses may face legal risk. As Canada's government commenced CASL review, this note proposes a foreign sender exemption and beseeches Canada to create such an exemption prior to the reactivation of a private right of action.