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SFLC Seeks Legal Interns for Summer 2015

SFLC News Releases - Thu, 2014/11/20 - 14:14
SFLC Seeks Legal Interns for Summer 2015

Choosing Between Privacy and Cyberbullying: My Appearance on Bill C-13 Before the Senate Legal and Constitutional Affairs Committee

Michael Geist Law RSS Feed - Thu, 2014/11/20 - 11:08

Yesterday I appeared before the Senate Committee on Legal and Constitutional Affairs, which is studying Bill C-13, the lawful access/cyberbullying bill. The full transcript of the spirited discussion is not yet available (webcast here), but my opening statement is posted below.

Appearance before the Senate Standing Committee on Legal and Constitutional Affairs, November 19, 2014

Good afternoon. My name is Michael Geist.  I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law. I appear today in a personal capacity representing only my own views.

Given the limited time,  I’m going to confine my remarks to three privacy-related issues: immunity for voluntary disclosure, the low threshold for transmission data warrants, and the absence of reporting and disclosure requirements.

First let me emphasize that criticism of lawful access legislation does not mean opposition to ensuring our law enforcement agencies have the tools they need to address crime in the online environment. As Carol Todd, Amanda’s mother, told the House of Commons committee studying C-13, “we should not have to choose between our privacy and our safety.”  Similarly, Sue O’Sullivan, the federal ombuds for victims, told the committee that victims were divided on Bill C-13 due to the privacy concerns.

Immunity for Voluntary Disclosure

First, the creation of an immunity provision for voluntary disclosure of personal information. I believe that this immunity provision must be viewed within the context of five facts:

1.    The Supreme Court of Canada’s Spencer decision confirms that there is a reasonable expectation of privacy in subscriber information and clearly indicates that absent exigent circumstances, disclosures should involve a warrant.
2.    Pre-Spencer, intermediaries disclosed personal information on a voluntary basis without a warrant with shocking frequency. The recent revelation of 1.2 million requests to telecom companies for customer information in 2011 affecting 750,000 user accounts provides a hint of the privacy impact of voluntary disclosures.
3.    Disclosures have involved more than just basic subscriber information.  Indeed, the House of Commons committee studying this bill heard directly from law enforcement, where the RCMP noted that “currently specific types of data such as transmission or tracking data may be obtained through voluntary disclosure by a third party.”
4.    Intermediaries do not notify users about their disclosures, keeping hundreds of thousands of Canadians in the dark. Contrary to some discussion on Bill C-13 this committee heard, there is no notification requirement within the bill nor any auditing mechanism.
5.    This voluntary disclosure provision should also be viewed in concert with the lack of meaningful changes in Bill S-4, that would collectively expand warrantless voluntary disclosure to any organization.

Given this background, I would argue that the provision is a mistake and should be removed. The provision unquestionably increases the likelihood of voluntary disclosures at the very time that Canadians and the courts are increasingly concerned with such activity.  Moreover, it does so with no reporting requirements, oversight, or transparency.

Low Threshold for Transmission Data Warrants

Second, Bill C-13 contains a troubling, lower “reason to suspect” threshold for transmission data warrants. The kind of information sought by transmission data warrants is more commonly referred to as metadata. While some have tried to argue that metadata is non-sensitive information, that is simply not the case.

There has been some confusion regarding how much metadata is included as ‘transmission data’. This is far more than who phoned who for how long. It includes highly sensitive information relating to computer-to-computer links. This form of metadata may not contain the content of the message, but its privacy import is very significant. Late last year, the Supreme Court of Canada ruled in R. v. Vu on the privacy importance of computer generated metadata, noting:

In the context of a criminal investigation, however, it can also enable investigators to access intimate details about a user’s interests, habits, and identity, drawing on a record that the user created unwittingly

Security officials have also commented on the importance of metadata. General Michael Hayden, former director of the NSA and the CIA has stated “we kill people based on metadata.” Stewart Baker, former NSA General Counsel, has said “metadata absolutely tells you everything about somebody’s life. If you have enough metadata, you don’t really need content.”

There are numerous studies that confirm Hayden and Baker’s comments.  For example, some studies point to calls to religious organizations that allow for inferences of a person’s religion.  Calls to medical organizations can often allow for inferences on medical conditions. In fact, a recent U.S. court brief signed by some of the world’s leading computer experts notes:

Telephony metadata reveals private and sensitive information about people. It can reveal political affiliation, religious practices, and people’s most intimate associations. It reveals who calls a suicide prevention hotline and who calls their elected official; who calls the local Tea Party office and who calls Planned Parenthood. The aggregation of telephony metadata – about a single person over time, about groups of people, or with other datasets – only intensifies the sensitivity of the information

Further, the Privacy Commissioner of Canada has released a study on the privacy implications of IP addresses, noting how they can be used to develop a highly personal look at an individual.

Indeed, even the Justice ministers report that seems to serve as the policy basis for Bill C-13 recommends the creation of new investigative tools in which “the level of safeguards increases with the level of privacy interest involved.”

Given the level of privacy interest with metadata, the approach in Bill C-13 for transmission data warrants should be amended by adopting the reasonable grounds to believe standard.

Transparency and Reporting

Third, the lack of transparency, disclosure, and reporting requirements associated with warrantless disclosures must be addressed. The stunning revelations about requests and disclosures of personal information – the majority without court oversight or warrant – points to an enormously troubling weakness in Canada’s privacy laws.  Most Canadians have no awareness of these disclosures and have been shocked to learn how frequently they are used and that bills before Parliament propose to expand their scope.  In my view, this makes victims of us all – disclosure of our personal information often without our awareness or explicit consent.

I’ll stop there and welcome your questions.

The post Choosing Between Privacy and Cyberbullying: My Appearance on Bill C-13 Before the Senate Legal and Constitutional Affairs Committee appeared first on Michael Geist.

Washington Post publishes Q&A with Eben Moglen

SFLC News Releases - Wed, 2014/11/19 - 15:06
Washington Post publishes Q&A with Eben Moglen

The Importance of Online Anonymity

Michael Geist Law RSS Feed - Tue, 2014/11/18 - 11:15

Appeared in the Toronto Star on November 15, 2014 as The Importance of Online Anonymity

If you could change or enact one Internet law, what would it be?  For some Canadians, it might be new rules to promote greater competition among Internet providers or increased copyright flexibilities matching the U.S. fair use provision.  For others, it would mean toughening online privacy protection or examining whether Canadian net neutrality rules are sufficient.

When Scott Naylor, a detective inspector with the Ontario Provincial Police was asked the question during a Senate hearing earlier this month on the government’s lawful access legislation, he responded that he would eliminate anonymity on the Internet. Naylor likened Internet access to obtaining a driver’s licence or a marriage licence, noting that we provide identification for many different activities, yet there is no requirement to identify yourself (or be identified) when using the Internet.

While acknowledging that a universal identification system is impractical, he said would ideally like a mandatory digital fingerprint for Internet users that would identify them sitting behind the computer. Naylor’s comments were quickly greeted with support from Conservative Senator Tom McInnis, who lamented the use of assumed names and agreed that identifying the identity of online users would be a good thing.

Law enforcement support for the elimination or erosion of online anonymity is particularly ironic since the Supreme Court of Canada just emphasized its importance in a landmark ruling on Internet privacy. The Spencer decision is best known for affirming that Internet users have a reasonable expectation of privacy in their subscriber information.

The implications of that ruling are that law enforcement officials now have little choice but to obtain a court order to obtain subscriber information from Internet providers. Moreover, Internet providers who were previously willing to voluntarily disclose basic subscriber information without court oversight have abandoned the practice.

While the decision altered the landscape of Internet privacy, it is important to recognize that the court pointed to online anonymity as particularly important in the context of Internet use. In fact, it identifies precisely the kinds of cases of importance to law enforcement as the reason to preserve online anonymity.

For example, it notes that there may be situations where police want the list of names that correspond to identification numbers on a survey. In such situations, “the privacy interest at stake…is not simply the individual’s name, but the link between the identified individual and the personal information provided anonymously.”

Anonymity can create a challenge for law enforcement (though one that is frequently surmountable through digital detective work), but it also plays an important positive role for the police. Anonymous tip lines or information from anonymous individuals are frequently an important source of information for investigators. Eliminating anonymity would run the risk of hampering age-old investigative techniques.

The importance of online anonymity extends far beyond law enforcement, however. Corporate whistleblowers, women in abusive relationships, visible minorities, and a myriad of other people are emboldened by anonymity to speak out in a manner that would otherwise be unavailable if they were forced to identify themselves.

The Supreme Court’s recognition of anonymity as a particularly important component of Internet privacy will not come as a surprise to millions of Internet users to rely upon it to varying degrees to exercise free speech rights and to preserve their privacy. What is surprising – or at least discouraging – is that the OPP and a Canadian Senator would seemingly jump at the chance to bring it to an end.

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

The post The Importance of Online Anonymity appeared first on Michael Geist.

Let’s Encrypt: Bringing HTTPS to Every Web Site

Freedom to Tinker - Tue, 2014/11/18 - 11:00
HTTPS, the cryptographic protocol used to secure web traffic as it travels across the Internet, has been in the news a lot recently. We’ve heard about security problems like Goto Fail, Heartbleed, and POODLE — vulnerabilities in the protocol itself or in specific implementations — that resulted in major security headaches. Yet the single biggest […]

Information Doesn’t Want to Be Free interview with Baltimore morning radio

I'm heading to Ann Arbor, DC and Baltimore this week for a series of talks -- I did a a quick interview with Baltimore's WYPR (MP3) that came out very well!

Huxleyed into the Full Orwell


​Huxleyed Into the Full Orwell is a new short story I wrote for Vice Magazine's just-launched science fiction section Terraform, which also has new stories up by Claire Evans, Bruce Sterling, and Adam Rothstein.

"Huxleyed" is a story about the way that entertainment companies' war on general purpose computing could lead into a horrible mashup of the surveillance tyranny of Orwell and the entertainment tyranny of Huxley.


The First Amendment Area was a good 800 yards from the courthouse, an imposing cage of chicken-wire and dangling zip-cuffs. The people inside the First Amendment area were weird. I mean, I include myself in that group. After all, I vacuformed my own Guy Fawkes mask mold. That is not the action of a sane woman. Shandra was weirder, though. She'd thought up the whole demonstration, socialed the everfuck out of the news, rallied a couple hundred weirdos to join her in the chicken-farm, shouting impotently at the courthouse, ringed by cops scarily into their Afghanistan-surplus riot-gear.

"Shandra, how is this supposed to work again?"

"Like this," she said, and powered up her—weird—device. It started life as a compact projector, the kind of thing you use for screening dull-ass presentations in school auditoriums. But then she'd added a hydrogen-cell that she wore in a backpack, and a homebrew steadicam rig that she strapped to her front, making her look like the world's most overburdened suicide bomber. I could tell that she was already freaking out the cops on the other side of the chicken wire, and they snapped into palpable alert when a beam of light emerged from the projector. I could only imagine how many tasers, sniper-rifles and gas-grenades were trained on her at that moment. But she didn't give any sign that she noticed or cared.

​Huxleyed Into the Full Orwell


(Image: Koren Shadmi)

Eben Moglen replies to GCHQ op-ed attack on privacy

SFLC News Releases - Thu, 2014/11/13 - 17:03
Eben Moglen replies to GCHQ op-ed attack on privacy

Why Does the Ontario Provincial Police Still Not Know What is in the Lawful Access Bill?

Michael Geist Law RSS Feed - Thu, 2014/11/13 - 11:01

Earlier this week, I posted on Ontario Provincial Police comments at the Standing Senate Committee on Legal and Constitutional Affairs hearing on Bill C-13 that were sharply critical of online anonymity.  The same hearing was notable for additional comments from the OPP on the lawful access bill.  The comments, which came in the opening statement, suggest that one of Canada’s largest police forces is simply unaware of the contents of the proposed legislation.

Scott Naylor of the OPP’s opening remarks included:

There is no question that some of the legislation involving technology and communication in Canada is out of date.  Under the current legislation, police can only access the very basic subscriber information – i.e., name, address, telephone number – on a totally ad hoc basis, by production order from service providers.  This means that there is an inconsistent response, which impedes investigations and, in extreme cases, may prolong victimization. Under the proposed legislation, Internet service providers would be compelled to provide this information in a timely fashion and on a consistent basis.  Access to this information would be strictly controlled and limited to law enforcement officials, who would be fully trained in these procedures and subject to auditing and report oversight.  I will repeat – auditing and report oversight.

Here is the problem: Naylor appears to think that Bill C-13 has not changed from Vic Toews’ Bill C-30. Under the lawful access bill, ISPs would not be compelled to disclose subscriber information. Indeed, the mandatory disclosure of subscriber information without a warrant was removed from the bill altogether.  The bill does include incentives for voluntary disclosure, but there are no mandatory disclosure requirements. If the OPP think the bill guarantees consistent disclosure of subscriber information, it is wrong. In fact, the Supreme Court’s Spencer decision means that subscriber information now only comes (except in emergency circumstances) through a court order.

In fact, a different OPP representative said much the same thing to the House of Commons committee hearing on Bill c-13. Operating from the same script, Carson Pardy, Director of Operation for the East Region, stated:

Under the current legislation, police can only access the very basics of subscriber information – name and address, maybe a phone number – on a totally ad hoc basis from Internet service providers. This means there is an inconsistent response which impedes investigations and many times prolongs victimization. Under the proposed legislation, ISPs will be compelled to provide this information in a timely fashion and on a consistent basis. Access to this information will be strictly controlled and limited to law enforcement officials who would be fully trained in these procedures and subject to auditing and/or reporting processes. The outcome will be that the police can quickly and consistently gain access to information that makes a difference to our effectiveness in investigating and preventing criminal activity and victimization.

This means that both the House of Commons and Senate committee studying Bill C-13 have received inaccurate information from law enforcement about the impact of the proposed bill. Moreover, it suggests that the police are supporting a bill that at worst they have not read or at best have misinterpreted.

The post Why Does the Ontario Provincial Police Still Not Know What is in the Lawful Access Bill? appeared first on Michael Geist.

Investigathon: Helping investigative journalists access information through the Investigative Dashboard

Google Public Policy BLOG - Wed, 2014/11/12 - 11:43
As the old saying goes, “News is something somebody wants to suppress. All the rest is advertising.” We agree: Investigative journalism is a crucial pillar of free societies. That’s why we’re holding an “Investigathon” in New York City to share and practice new ways to make investigations more powerful.
It all starts with data. With the Organized Crime and Corruption Reporting Project, we’ve built the Investigative Dashboard to help investigators trace shell company ownership around the world. At the Investigathon, 100 investigators of all stripes will spend the afternoon learning to use the Dashboard and other datasets to trace Eastern European money laundering activities. So many public records are already available to search, sometimes it’s just a question of knowing how to look.
Data only goes so far without tools. That’s why we’ve also been working with Overview Project to make it easier to sift through huge volumes of business records. The world doesn’t need more isolated platforms, so Overview Project will soon have standardized APIs to integrate directly into the Investigative Dashboard, Visual Investigative Scenarios, and beyond.
Finally, knowledge spreads through personal relationships based on trust, so we’re hoping to play a small role in strengthening the investigative journalism community on the East Coast. When we held our inaugural Investigathon in London, there was so much enthusiasm that Hacks/Hackers, Bellingcat, and OCCRP decided to run six-month series of follow-up workshops and convenings to support the work we started there.
The challenges of investigative journalists are immense, and the forces arranged against them are formidable. But if people are to have free and open access to the truths about their societies, investigators must stay one step ahead of those who would want to suppress that information. We aim to help, one step at a time.
Posted by Justin Kosslyn, Product Manager, Google Ideas

Competition Matters: New Study Supports Government Policy Focused on Fourth Wireless Player

Michael Geist Law RSS Feed - Wed, 2014/11/12 - 11:17

Last year’s explosive battle over the potential entry of wireless giant Verizon into the Canadian market may be a distant memory, but the debate over the state of wireless competition remains very much alive. Industry Minister James Moore has pointed to a modest decline in consumer pricing and complaints as evidence that government policies aimed at fostering a more competitive market are working.

The big three wireless carriers remain adamant that the Canadian market is competitive and that while pricing may be high relative to some other countries, that is a function of the quality of their networks. In other words, you get what you pay for.

There is seemingly no major international entrant on the horizon, but the Canadian Radio-television and Telecommunications Commission is currently grappling with an assortment of policy measures aimed at improving the competitiveness of new entrants and facilitating the development of a more robust market for virtual operators who could enhance consumer choice. Moreover, the government is planning another spectrum auction early next year that would benefit new entrants.

My weekly technology law column (Toronto Star version, homepage version) notes that at the heart of the debate is whether creating a fourth national carrier is a legitimate policy goal or a mirage that will do little to decrease pricing or create market innovation. The major carriers argue that the Canadian market is too small to support a fourth national carrier and that competitiveness is not directly correlated to the number of national operators.

Conversely, the government, supported by independent analysis from the Competition Bureau, believes that more competition is needed given the “market power” wielded by the big three incumbents. The creation of fourth national wireless carrier is often cited as an important target that would alter the competitive dynamic.

The government’s position received a major boost last week with the release of a new study by the Organization for Economic Co-operation and Development, a leading international governmental body that counts most developed economy countries as members. The OECD report focused specifically on whether the number of carriers within member countries is linked to consumer pricing or marketplace innovation.

After reviewing the recent experience in eleven OECD countries, it concluded that a fourth carrier makes a difference. The study finds that with four or more competitors “there is a higher likelihood of more competitive and innovative services being introduced and maintained.”

For example, France and Israel experienced price reductions and the introduction of unlimited usage plans with the entry of a fourth carrier. In the Netherlands, the study finds that the imminent launch of a fourth carrier has led to more competitive consumer offers, including Europe-wide roaming.

The study also identifies other areas where new competitors have had a significant impact on marketplace dynamics. Fourth carriers have often the been source of better international roaming offers, forcing the established players to respond by reducing their own prices or enhancing their plans. Similarly, virtual operators have targeted niche markets by expanding access to pre-paid plans more aggressively than established carriers.

Just as more competition helps, reduced competition can hurt. For example, the study notes that a 2009 Australian merger that decreased the number of wireless competitors has led to less vigorous retail competition.

Notwithstanding fears that new entrants or virtual operators might reduce earnings and thereby the incentives to invest in new networks, the OECD data suggests those concerns are largely unfounded. Reviewing nearly 15 years of data, the study finds that investments in telecommunications networks has remained remarkably stable.

In other words, competition works. This finding will not come as surprise to most observers, but in the contentious world of Canadian telecom, where incumbents seemingly fear the prospect of new competitors as much as actual competition, the OECD report provides yet another reason for the government to maintain its policy approach and for the CRTC use its regulatory powers to foster a more competitive marketplace.

The post Competition Matters: New Study Supports Government Policy Focused on Fourth Wireless Player appeared first on Michael Geist.

PCLOB testimony on “Defining Privacy”

Freedom to Tinker - Wed, 2014/11/12 - 09:40
This morning I’m testifying at a hearing of the Privacy and Civil Liberties Oversight Board, on the topic of “Defining Privacy”. Here is the text of my oral testimony. (This is the text as prepared; there might be minor deviations when I deliver it.) [Update (Nov. 16): video stream of my panel is now available.] […]

It’s time to extend the US Privacy Act to EU citizens

Google Public Policy BLOG - Wed, 2014/11/12 - 09:07
Cross-posted from the Google Europe Blog 

Last summer’s Snowden revelations not only highlighted the urgent need for surveillance reform but also severely damaged relations between the US and Europe.

Google and many other technology companies have urged the US to take the lead and introduce reforms that ensure government surveillance activity is clearly restricted by law, proportionate to the risks, transparent and subject to independent oversight. Sadly, we’ve seen little serious reform to date.

However, the US Government can signal a new attitude when representatives of the European Commission visit Washington DC tomorrow. Right now, European citizens do not have the right to challenge misuse of their data by the US government in US courts -- even though American citizens already enjoy this right in most European countries. It’s why Google supports legislation to extend the US Privacy Act to EU citizens. The Obama Administration has already pledged its support for this change and we look forward to to working with Congress to try and make this happen.

We understand that governments have a duty to protect their citizens. The emergence of ISIS and other new threats have reminded us all of the dangers we face. But the balance in the US and many other countries has tipped too far in favour of the state and away from the rights of the individual — rights that are enshrined in the Universal Declaration of Human Rights.

As President Obama recently instructed his Intelligence agencies: “All persons should be treated with dignity and respect, regardless of their nationality or wherever they might reside, and that all persons have legitimate privacy interests in the handling of their personal information.”

Posted by David Drummond Chief Legal Officer, Google

Audio from Seattle Hieroglyph event with Neal Stepehenson

Here's an MP3 of the audio from the Reigniting Society’s Ambition with Science Fiction event that I did with Neal Stephenson and Ed Finn at Seattle Town Hall on Oct 26, to promote the Hieroglyph anthology, designed to inspire optimistic technologies to solve the Earth's most urgent problems. I had a story in it called The Man Who Sold the Moon.

Stories are a fuggly hack


My latest Locus Magazine column is Stories Are a Fuggly Hack, in which I point out the limits of storytelling as an artform, and bemoan all the artists from other fields -- visual art, music -- who aspire to storytelling in order to make their art.

There are other media, much more abstract media, that seemingly manage to jump straight to the feels: painting, photography, poetry, sculpture, music. Not always – all of these things can tell stories, but they don’t need to in order to make you feel things. Instead, they seem to reach right inside your skull and tickle the feeling parts of you, trig­gering cascades of intense emotion that are all the more powerful for their inexplicable nature.

Now, this stuff is all very primal and non-rational and is hard to taxonomize and rationalize and turn into something repeatable. If I can’t tell you why ‘‘Guernica’’ makes me feel Guernica-ey, then how are you supposed to improve on it in a future iteration to fine-tune the emotive effect? At least with stories, you know that if you tell a scary story, and it works, the audience will experience fear. But the emotional oomph of non-narrative art is much more mysterious, more of an art, really, and though it may be harder to systematize, when it gets in the groove, look out.

Which is why, as a ‘‘storyteller,’’ I sometimes get a little impatient with people who are really good at those other media – none of which I have any talent for, incidentally – when they rhapsodize about sto­rytelling as a way of practicing their art. That’s not because I want to jealously guard my preserve here in storyland, but because making someone feel something without all that tedious making-stuff-up is a hell of an accomplishment and it’s heartbreaking to see brilliant artists turn their back on it.

Stories Are a Fuggly Hack [Cory Doctorow/Locus]

(Image: Großmutters Geschichten 19Jh, Public Domain)

Amanda Palmer’s Art of Asking: art for the crowdfunding age


Amanda Palmer's new book Art of Asking is a moving and insightful memoir of her life performing music while making personal connections with her fans; I wrote a long, in-depth review of it for The New Statesman.

There's a litmus test for how you will likely feel about Palmer's Kickstarter: Palmer invited local musicians in each city on her tour to come onstage and jam with the band. She asked that they come by for an afternoon's quick rehearsal, and offered them beer, t-shirts, and gratitude and recognition. This move - something that Palmer's bands had often done on previous tours - enraged her detractors like nothing else.

The inaccurate headline: "Musician raises $1 million from fans, asks her band to play for free." (Palmer's band was paid, it was the jamming local performers who were volunteers.) Even after it was corrected, even after Palmer relented and offered the volunteer musicians $100 to come on stage with her, she was still pilloried for "not valuing the hard work of fellow musicians".

But in truth, the practice of letting fans jam with the band is an honourable and widespread one. I once spent a night on New Orleans' Bourbon Street, hopping from bar to club, listening to the always-excellent house-bands performing blues and rock and rockabilly and jazz. And without fail, during each set, someone would walk in off the street, a musician on holiday from some much-less-exotic city, perhaps in a state that began and ended with a vowel, with a guitar or sax or even an accordion, and that person would take the stage with the band and jam in. It was a gift - from the band to the vacationing musician, from the musician to the band, from the crowd (who would cheer on the newcomer with real zest), and to the crowd. It wasn't a market transaction, though sometimes a beer or a t-shirt or a CD would change hands (and in any conceivable direction).

As Palmer points out, other bands have run successful Kickstarters in which they charge their backers for the privilege of performing on stage during the tour. No one bats an eye at the idea that musicians should pay to perform, nor do they balk at the idea that they should be paid to perform. But let no money change hands at all and all of our reactions are disordered. Art without the market is a terrifying thing, a frank admission that the alleged "music industry"'s most indispensable components - the musicians - never really had a realistic chance of earning anything, and the ones that do get paid are statistical outliers.

Standing naked in front of an audience: Amanda Palmer and a new way to make art [Cory Doctorow/New Statesman]

Video from SFLC's tenth anniversary conference available.

SFLC News Releases - Tue, 2014/11/11 - 14:21
Video from SFLC's tenth anniversary conference available.

Net Neutrality and Netflix Taxes: The Tension Between Government and Regulatory Agencies on Digital Policy

Michael Geist Law RSS Feed - Tue, 2014/11/11 - 10:26

U.S. President Barack Obama yesterday came out strongly in favour of net neutrality, urging the U.S. Federal Communications Commission to uphold core net neutrality principles. Obama’s comments were unsurprisingly welcomed by net neutrality activists throughout the U.S., though some caution that the ultimate decision still lies with the regulatory agency. Obama focused on the need for greater transparency along with rules to ensure no blocking, throttling, and paid prioritization. I wrote earlier this year on how Canada passed net neutrality regulations (termed Internet traffic management practices) in 2009, which address many of the issues raised by Obama.

Obama’s decision to wade into the net neutrality debate highlights how politicians can no longer simply avoid telecom, broadcast, and Internet issues by claiming that the matter is solely for regulators to determine. Policy issues such as net neutrality and Internet regulation have profound importance for millions and we should not be content to leave the issue exclusively to unelected regulators (no matter transparent their processes).

The question of the appropriate role for politicians on policies being considered by regulators has attracted attention on both sides of the border. For example, the involvement of elected officials in telecom and Internet policy captured headlines in Canada in September when the federal government declared that it would not support a “Netflix tax” as an outcome from the CRTC’s TalkTV hearings. The Netflix issues comes in the aftermath of a “mandate letter” to the CRTC on the appointment on CRTC Chair Jean-Pierre Blais that identified top priorities as well as active involvement on issues such as usage based billing.

The public comments on the Netflix tax sparked a backlash from some opposition parties, who claimed the government was “playing politics” with the CRTC. Blais was also clearly unhappy with the interventions both during the hearing and in the weeks that followed. Last Friday, he delivered a talk in Vancouver in which he pointedly criticized outside commentary and emphasized that CRTC decisions would only be based on the evidence raised in submissions and during the hearing.

Blais suggested that government comments will have no impact on the outcome of the policy process, which seems somewhat unrealistic. An independent agency must obviously be free to make its own decisions, but the notion that governmental comments – whether President Obama’s on net neutrality in the U.S. or the Canadian government’s on Netflix here – can be ignored because they are not offered directly through the formal policy process only breeds further uncertainty since it is elected officials, not regulators, that ultimately have the final say on these matters. Indeed, much of the recent criticism appears to be an effort to mask criticism with the substance of policies by focusing on process. There is a danger that politicians can overstep the boundaries with independent agencies, but digital policies are too important to be left solely to the CRTC or FCC.

The post Net Neutrality and Netflix Taxes: The Tension Between Government and Regulatory Agencies on Digital Policy appeared first on Michael Geist.

Competition Matters: New Study Supports Government Policy Focused on Fourth Wireless Player

Michael Geist Law RSS Feed - Tue, 2014/11/11 - 09:38

Appeared in the Toronto Star on November 8, 2014 as Why Canada Needs a Fourth Wireless Player

Last year’s explosive battle over the potential entry of wireless giant Verizon into the Canadian market may be a distant memory, but the debate over the state of wireless competition remains very much alive. Industry Minister James Moore has pointed to a modest decline in consumer pricing and complaints as evidence that government policies aimed at fostering a more competitive market are working.

The big three wireless carriers remain adamant that the Canadian market is competitive and that while pricing may be high relative to some other countries, that is a function of the quality of their networks. In other words, you get what you pay for.

There is seemingly no major international entrant on the horizon, but the Canadian Radio-television and Telecommunications Commission is currently grappling with an assortment of policy measures aimed at improving the competitiveness of new entrants and facilitating the development of a more robust market for virtual operators who could enhance consumer choice. Moreover, the government is planning another spectrum auction early next year that would benefit new entrants.

At the heart of the debate is whether creating a fourth national carrier is a legitimate policy goal or a mirage that will do little to decrease pricing or create market innovation. The major carriers argue that the Canadian market is too small to support a fourth national carrier and that competitiveness is not directly correlated to the number of national operators.

Conversely, the government, supported by independent analysis from the Competition Bureau, believes that more competition is needed given the “market power” wielded by the big three incumbents. The creation of fourth national wireless carrier is often cited as an important target that would alter the competitive dynamic.

The government’s position received a major boost this week with the release of a new study by the Organization for Economic Co-operation and Development, a leading international governmental body that counts most developed economy countries as members. The OECD report focused specifically on whether the number of carriers within member countries is linked to consumer pricing or marketplace innovation.

After reviewing the recent experience in eleven OECD countries, it concluded that a fourth carrier makes a difference. The study finds that with four or more competitors “there is a higher likelihood of more competitive and innovative services being introduced and maintained.”

For example, France and Israel experienced price reductions and the introduction of unlimited usage plans with the entry of a fourth carrier. In the Netherlands, the study finds that the imminent launch of a fourth carrier has led to more competitive consumer offers, including Europe-wide roaming.

The study also identifies other areas where new competitors have had a significant impact on marketplace dynamics. Fourth carriers have often the been source of better international roaming offers, forcing the established players to respond by reducing their own prices or enhancing their plans. Similarly, virtual operators have targeted niche markets by expanding access to pre-paid plans more aggressively than established carriers.

Just as more competition helps, reduced competition can hurt. For example, the study notes that a 2009 Australian merger that decreased the number of wireless competitors has led to less vigorous retail competition.

Notwithstanding fears that new entrants or virtual operators might reduce earnings and thereby the incentives to invest in new networks, the OECD data suggests those concerns are largely unfounded. Reviewing nearly 15 years of data, the study finds that investments in telecommunications networks has remained remarkably stable.

In other words, competition works. This finding will not come as surprise to most observers, but in the contentious world of Canadian telecom, where incumbents seemingly fear the prospect of new competitors as much as actual competition, the OECD report provides yet another reason for the government to maintain its policy approach and for the CRTC use its regulatory powers to foster a more competitive marketplace.

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

The post Competition Matters: New Study Supports Government Policy Focused on Fourth Wireless Player appeared first on Michael Geist.

Ontario Provincial Police Recommend Ending Anonymity on the Internet

Michael Geist Law RSS Feed - Mon, 2014/11/10 - 10:31

The Standing Senate Committee on Legal and Constitutional Affairs began its hearings on Bill C-13, the lawful access/cyberbullying bill last week with an appearance from several law enforcement representatives. The Ontario Provincial Police was part of the law enforcement panel and was asked by Senator Tom McInnis, a Conservative Senator from Nova Scotia, about what other laws are needed to address cyberbullying. Scott Naylor of the OPP responded (official transcript not yet posted online):

If the bag was open and I could do anything, the biggest problem that I see in the world of child sexual exploitation is anonymity on the Internet. When we get our driver’s licence we’re required to get our picture taken for identification.  When you get a mortgage you have to sign and provide identification.  When you sign up for the Internet, there is absolutely no requirement for any kind of non-anonymity qualifier.  There are a lot of people who are hiding behind the Internet to do all kinds of crime, including cybercrime, fraud, sexual exploitation and things along those lines.

The Internet is moving so quickly that law enforcement cannot keep up.  If there were one thing that I would ask for discussion on is that there has to be some mechanism of accountability for you to sign on to an Internet account that makes it like a digital fingerprint that identifies it to you sitting behind the computer or something at that time.  There are mechanisms to do it, but the Internet is so big and so vast at this point, and it’s worldwide, I’m not sure how that could happen, but that would certainly assist everybody.  In that way I can make a digital qualification that that’s the person that I’m talking to.  If I had one choice, that’s what I would ask for.

Naylor’s comment was approved by Senator McInnis, who stated that he “absolutely agreed” with the recommendation.

Leaving aside the deeply troubling inference of requiring licences to the use the Internet in the same manner as obtaining a driver’s licence, the police desire to stop online anonymity suggests that the OPP has not read the Supreme Court of Canada Spencer decision very carefully. If it had, it would know that not only does the court endorse a reasonable expectation of privacy in subscriber information, but it emphasizes the importance of online anonymity in doing so. Justice Cromwell, speaking for unanimous court:

There is also a third conception of informational privacy that is particularly important in the context of Internet usage. This is the understanding of privacy as anonymity. In my view, the concept of privacy potentially protected by s. 8  must include this understanding of privacy.
The notion of privacy as anonymity is not novel. It appears in a wide array of contexts ranging from anonymous surveys to the protection of police informant identities. A person responding to a survey readily agrees to provide what may well be highly personal information. A police informant provides information about the commission of a crime. The information itself is not private – it is communicated precisely so that it will be communicated to others. But the information is communicated on the basis that it will not be identified with the person providing it.

Consider situations in which the police want to obtain the list of names that correspond to the identification numbers on individual survey results or the defence in a criminal case wants to obtain the identity of the informant who has provided information that has been disclosed to the defence. The privacy interest at stake in these examples is not simply the individual’s name, but the link between the identified individual and the personal information provided anonymously. As the intervener the Canadian Civil Liberties Association urged in its submissions, “maintaining anonymity can be integral to ensuring privacy.”

Cromwell adds:

Recognizing that anonymity is one conception of informational privacy seems to me to be particularly important in the context of Internet usage. One form of anonymity, as Westin explained, is what is claimed by an individual who wants to present ideas publicly but does not want to be identified as their author. Here, Westin, publishing in 1970, anticipates precisely one of the defining characteristics of some types of Internet communication. The communication may be accessible to millions of people but it is not identified with its author.

The recognition of anonymity as a particularly important component of Internet privacy will not come as a surprise to millions of Internet users to rely upon it to varying degrees to exercise free speech right and to preserve their privacy. It lies at the heart of posts from abuse victims, whistleblowers, and people who cannot otherwise speak out for fear of a backlash.  What is surprising – or at least discouraging – is that the OPP and a Canadian Senator would seemingly jump at the chance to bring it to an end.

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