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- Most Canadian businesses will have heard of the incoming Canadian Anti-Spam Law (referred to as CASL, which joins the Canadian pantheon of legislative acronyms like PIPEDA and PIPA). The consent requirements for sending commercial electronic messages (CEMs) is covered elsewhere (See here, and see this upcoming event on March 18 and 20, 2014). Those requirements ...
- Where a technology license carries with it an obligation to pay royalties based on revenues, how does the licensor determine if the revenues are accurately reported? The sales are known to the licensee, but the licensor has no way of determining what those sales are. Many license agreements impose reporting obligations on ...
- Earlier this week, the government introduced an unprecedented five international intellectual property treaties in the House of Commons on the same day. The five tabled treaties, introduced for ratification and implementation, are: the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, the Singapore Treaty on the Law of Trademarks, the Nice ...
Business people are sometimes seen to roll their eyes when they ask their lawyer a straighforward question, and the lawyer pauses and replies "Well... it depends..." In our earlier post (here and here), we reviewed the Canadian decision in Tucows.Com Co. v. Lojas Renner S.A., 2011 ONCA 548, which stands for the proposition ...
- In a recent decision released by the Canadian Privacy Commissioner (PIPEDA Report of Findings #2014-001), the commissioner investigated a complaint that Google pitched ads to an individual based on medical information that he disclosed while surfing various health-related websites. The commissioner's office took the position that "meaningful consent" is required ...
Let's say you pitch a story idea to a TV production company - and not just an idea, but a complete set of storyboards, characters and scripts. You would be surprised if one day you saw that story idea come to life in a TV production that gave no credit to ...
The lawful access fight of 2012, which featured then-Public Safety Minister Vic Toews infamously claiming that the public could side with the government or with child pornographers, largely boiled down to public discomfort with warrantless access to Internet subscriber information. The government claimed that subscriber data such as name, address, and IP address was harmless information akin to data found in the phone book, but few were convinced and the bill was ultimately shelved in the face of widespread opposition.
My weekly technology law column (Toronto Star version, homepage version) notes the government resurrected the lawful access legislation last year as a cyber-bullying bill, but it has been careful to reassure concerned Canadians that the new powers are subject to court oversight. While it is true that Bill C-13 contains several new warrants that require court approval (albeit with a lower evidentiary standard), what the government fails to acknowledge is that telecom companies and Internet providers already hand over subscriber data hundreds of times every day without court oversight. In fact, newly released data suggests that the companies have established special databases that grant law enforcement quick access to subscriber information without a warrant for a small fee.
The latest data comes from a government response to NDP MP Charmaine Borg's effort to obtain information on government agencies requests for subscriber data. While many agencies refused to disclose the relevant information, Canada Border Services Agency revealed that it had made 18,849 requests in one year for subscriber information including geo-location data and call records.
The CBSA obtained a warrant in 52 instances with all other cases involving a simple request without court oversight. The telecom and Internet providers fulfilled the requests virtually every time - 18,824 of 18,849 - and the CBSA paid a fee of between $1.00 and $3.00 for each request.
The CBSA revelations follow earlier information obtained under the Access to Information Act that the RCMP alone made over 28,000 requests for subscriber information in 2010 without a warrant. These requests go unreported - subscribers don't know their information has been disclosed and the Internet providers and telecom companies aren't talking either.
The recent disclosures also reveal that the telecom companies have established law enforcement databases that provide ready access to subscriber information in a more efficient manner. For example, the Competition Bureau reports that it "accessed the Bell Canada Law Enforcement Database" 20 times in 2012-13.
The absence of court oversight may surprise many Canadians, but the government actively supports the warrantless disclosure model. In 2007, it told the Privacy Commissioner of Canada that an exception found in the private sector privacy law to allow for warrantless disclosure was "designed to allow organizations to collaborate with law enforcement and national security agencies without a subpoena, warrant or court order." The cyber-bullying bill further supports the warrantless disclosure model since it contains a provision that grants Internet providers and telecom companies full immunity from any civil or criminal liability for voluntarily disclosing subscriber information.
While much of the warrantless disclosure data remains shrouded in secrecy - many government departments refuse to divulge details about their practices and the telecom companies and Internet providers have declined requests to come clean - the latest revelations confirm fears that subscriber information is disclosed tens of thousands of times every year without court oversight.
The law may grant the companies the right to disclose subscriber information without a warrant, but the pervasive warrantless disclosure is still deeply troubling and represents an abdication of their responsibility to safeguard the privacy interests of their subscribers.
Here's a reading (MP3) of a my November, 2013 Locus column, Collective Action, in which I propose an Internet-enabled "Magnificent Seven" business model for foiling corruption, especially copyright- and patent-trolling. In this model, victims of extortionists find each other on the Internet and pledge to divert a year's worth of "license fees" to a collective defense fund that will be used to invalidate a patent or prove that a controversial copyright has lapsed. The name comes from the classic film The Magnificent Seven (based, in turn, on Akira Kurosawa's Seven Samurai) in which villagers decide one year to take the money they'd normally give to the bandits, and turn it over to mercenaries who kill the bandits.
Why has Warner gotten away with its theft of ‘‘Happy Birthday’’ for so long? Because the interests of all the people who pay the license fee are diffused, and Warner’s interests are concentrated. For any one licensor, the rational course of action is paying Warner, rather than fighting in court. For Warner, the rational course is fighting in court, every time.
In this regard, Warner is in the same position as copyright and patent trolls: the interests of the troll are concentrated. Their optimal strategy is to fight back when pushed. But it’s the reverse for their victims: the best thing for them to do is to settle.
Collectively, though, the victims are always out more than the cost of a defense. That is, all the money made by a troll from a single stupid patent is much more than the cost of fighting to get the patent invalidated. All the money made by Warner on ‘‘Happy Birthday’’ dwarfs the expense of proving, in court, that they weren’t entitled to any of it.
The reason the victims don’t get together to fight back is that they don’t know each other and have no way to coordinate among each other. In economists’ jargon, they have a ‘‘collective action problem.’’
Mastering by John Taylor Williams: email@example.com
John Taylor Williams is a audiovisual and multimedia producer based in Washington, DC and the co-host of the Living Proof Brew Cast. Hear him wax poetic over a pint or two of beer by visiting livingproofbrewcast.com. In his free time he makes "Beer Jewelry" and "Odd Musical Furniture." He often "meditates while reading cookbooks."
In a recent default judgment granted to Twentieth Century Fox, a Canadian Federal Court recently issued an injunction and a damage award in Twentieth Century Fox Film Corp. v. Hernandez et al (T-1618-13) for copyright infringement based on copying and rebroadcasting The Simpsons and Family Guy programs through the defendant's websites "Watch ...
Posted by Richard Salgado, Legal Director, Law Enforcement and Information Security
While we’ve always known how important transparency is when it comes to government requests, the events of the past year have underscored just how urgent the issue is. From being the first company to disclose information about National Security Letters to fighting for the ability to publish more about FISA requests, we’ve continually advocated for your right to know.
Today, we’re updating our Transparency Report for the ninth time. This updated Report details the number of government requests we received for user information in criminal investigations during the second half of 2013. Government requests for user information in criminal cases have increased by about 120 percent since we first began publishing these numbers in 2009. Though our number of users has grown throughout the time period, we’re also seeing more and more governments start to exercise their authority to make requests.
We consistently push back against overly broad requests for your personal information, but it’s also important for laws to explicitly protect you from government overreach. That’s why we’re working alongside eight other companies to push for surveillance reform, including more transparency. We’ve all been sharing best practices about how to report the requests we receive, and as a result our Transparency Report now includes governments that made less than 30 requests during a six-month reporting period, in addition to those that made 30+ requests.
We also call on Congress to pass legislation that would update the Electronic Communications Privacy Act (ECPA) to require governmental entities to obtain a warrant before they can compel online companies to disclose the content of users’ communications. As we have noted previously, legislation introduced by Senators Leahy and Lee (R-Utah) in the Senate and Representatives Yoder (R-Kan.), Graves (R-Ga.), and Polis (D-Colo.) in the House would achieve that goal. This legislation enjoys broad, bipartisan support, and we urge Congress to move quickly toward enacting legislation that would update ECPA in a manner that comports with how people use the Internet today. Moreover, more than 110,000 people have signed a White House petition, asking the Administration to support legislation that would update ECPA in this manner.
Also, people have been asking about how we respond to search warrants in the U.S., so we’ve created an entertaining video to explain in plain language how this process works. We apply the same rigorous standards presented in this video to every request we receive, regardless of type.
You deserve to know when and how governments request user information online, and we’ll keep fighting to make sure that’s the case.
There's less than a week left during which you can get the independently produced Homeland audiobook through the Humble Ebook Bundle!
We fight very hard for our members, in our case authors, composers, and publishers as well, but it's nothing new. When I say we fight hard, in this case it's on complex legal issues.
Back in the 1990s we had to go to the courts to ensure that our members were paid for the use of their music in specialty television programming, such as on TSN. Things we take for granted today, we had to fight for 25 years ago. We're continuing those fights. We appear before the Copyright Board, where the royalties that ultimately are distributed to our members are set. In order for those royalties to be set, they have to be confirmed as a matter of law that we can legitimately collect them.
Our members were extremely disappointed two years ago to find that well over $20 million that was with SOCAN and awaiting distribution to our members had to be repaid to this little company called Apple iTunes. Ironically, Apple was not among the companies challenging our members' rights to receive royalties for downloads. We're still fighting for our members' rights in that regard as a result of changes to legislation that came through with the adoption of Bill C-11 two years ago.
One way in which we try to ensure that royalties continue to make their way to our members is by representing them in these very significant legal battles that existed 25 years ago and that are simply now been shifted to a new front with the advent of these new technologies. We're going to continue to do that.
Before he died, Aaron Swartz wrote a tremendous afterword for my novel Homeland -- Aaron also really helped with the core plot, devising an ingenious system for helping independent candidates get the vote out that he went on to work on. When I commissioned the indie audiobook of Homeland (now available in the Humble Ebook Bundle, I knew I wanted to have Aaron's brother, Noah, read Aaron's afterword, and Noah was kind enough to do so, going into a studio in Seattle to record a tremendous reading.
Here is Noah's reading (MP3), released as a CC0 file that you can share without any restrictions. I hope you'll give it a listen.
And a reminder that the complete Humble Ebook Bundle lineup is now available, including work from John Scalzi, Mercedes Lackey, and Ryan North, as well as the core bundle, which features Wil Wheaton, Holly Black, Steven Gould, and Scott Westerfeld!
The debate over Bill C-13, the government's latest lawful access bill, is set to resume shortly. The government has argued that the bill should not raise concerns since new police powers involve court oversight and the mandatory warrantless disclosure provisions that raised widespread concern in the last bill have been removed. While that is the government's talking points, I've posted on how this bill now includes incentives for telecom companies and other intermediaries to disclose subscriber information without court oversight since it grants them full civil and criminal immunity for doing so. Moreover, newly released data suggests that the telecom companies don't seem to need much of an incentive as they are already disclosing subscriber data on thousands of Canadians every year without court oversight.
This week, the government responded to NDP MP Charmaine Borg's request for information on government agencies requests to telecom providers for customer information. The data reveals that the telecom companies have established law enforcement databases that provides ready access to subscriber information. For example, the Competition Bureau reports that it "accessed the Bell Canada Law Enforcement Database" 20 times in 2012-13. The wording may be important, since the Bureau indicates that it accessed the information, rather than Bell provided it. It is not clear what oversight or review is used before a government agency may access the Bell database.
The Canada Border Services Agency report featured the biggest numbers with 18,849 requests in one year for subscriber information including geolocation data and call records. The CBSA obtained a warrant in 52 cases with all other cases involving a simple request without court oversight. The telecom providers fulfilled the requests virtually every time - 18,824 - and the CBSA paid between $1.00 and $3.00 per request. The RCMP presumably has far higher numbers, but it says that it does not keep track in a centralized database (an earlier access to information request revealed even bigger numbers).
While this data provides only a glimpse at warrantless disclosure of subscriber information, it confirms fears that telecom companies provide such information tens of thousands of times every year without court oversight (and perhaps without even internal oversight if access to a database is granted). The law may grant telecom companies the right to disclose subscriber information without a warrant, but the pervasive warrantless disclosure is deeply troubling and represents an abdication by telecom providers of their responsibility to safeguard the privacy of their subscribers.
I'm immensely proud and honored to once again be shortlisted for the Prometheus Award, for my novel Homeland. The Prometheus is given by the Libertarian Futurist Society, and I've won it for my books Little Brother and Pirate Cinema. As always, the Prometheus shortlist is full of great work, including both of Ramez Naam's novels Crux and Nexus, both of which I enjoyed enormously. My thanks to the Libertarian Futurist Society and my congratulations to my fellow nominees! See you at the World Science Fiction convention in London this summer!
The Internet policy world ripe with fascinating policy issues. From government surveillance and data security to patent reform and copyright to free expression and open access to information, there has never been a more exciting time to get involved. We’re excited to launch the 7th summer of the Google Policy Fellowship, connecting students of all levels and disciplines with organizations working on the forefront of these and other critical issues for the future of the Internet. Applications are open today for North America and Latin America, and students of all levels and disciplines are welcome to apply before Friday, April 14, 2014.
This year’s organizations include:
More fellowship opportunities in Asia, Africa, and Europe will be coming soon. You can learn about the program, application process and host organizations on the Google Public Policy Fellowship website.
- In our earlier post (Are Non-Competition Restrictions Enforceable?), we reviewed "restrictive covenants" - these are clauses under which employees are bound by restrictions such as non-competition restrictions, non-solicitation obligations, and other controls on the employee's behaviour which bind the employee after termination. In Eagle Professional Resources v. MacMullin, 2013 ONSC 2501, ...
The Government of Quebec has lost its complaint over the domain name Quebec.com. In a unanimous panel decision that included Copyright Board of Canada board member Nelson Landry, the government failed to demonstrate bad faith and raised questions about why it waited 15 years to launch a complaint.
Earlier this month, the U.S. government surprised the Internet community by announcing that it plans to back away from its longstanding oversight of the Internet domain name system. The move comes more than 15 years after it first announced plans to transfer management of the so-called IANA function, which includes the power to add new domain name extensions (such as dot-xxx) and to alter administrative control over an existing domain name extension (for example, approving the transfer of the dot-ca domain in 2000 from the University of British Columbia to the Canadian Internet Registration Authority).
My weekly technology law column (Toronto Star version, homepage version) notes the change is rightly viewed as a major development in the ongoing battle over Internet governance. Yet a closer look at the why the U.S. is embarking on the change and what the system might look like once the transition is complete, suggests that it is not relinquishing much power anytime soon. Rather, the U.S. has ensured that it will dictate the terms of any transfer and retain a "super-jurisdiction" for the foreseeable future.â¨
Day-to-day administration of the domain name system is currently managed by the Internet Corporation for Assigned Names and Numbers (ICANN), a U.S.-based non-profit company that operates under a contract with the U.S. government. Critics argue that this means that the U.S. retains final authority over key Internet governance decisions. â¨â¨
The United Nations and supporting governments have attempted to loosen U.S. control on several prior occasions without success. Despite those failures, the U.S. now voluntarily says it will walk away from its oversight power, tasking ICANN with developing a transition plan that must "support and enhance the multistakeholder model." The U.S. adds that it will not accept a proposal based on a government-led or an inter-governmental organization solution, short-circuiting any hopes the U.N. might have had for assuming control.â¨â¨
Why is the U.S. proposing to walk away now? In recent months, there has been growing momentum to revisit the issue, triggered by the Edward Snowden revelations of widespread Internet surveillance. Although NSA surveillance has no real connection to Internet governance - the management of the domain name system is not typically a surveillance target - the issue has galvanized many countries and groups who sense an opportunity for change. By forcing the issue, the U.S. has successfully seized the agenda and set the conditions for a transfer of power.
While a transfer would be perceived by many to represent a change in control, the reality is that the U.S. will not be relinquishing much power even when (or if) the transition occurs. In the years since the U.S. first indicated that it would shift away from Internet governance, it has steadily erected jurisdictional authority over a considerable portion of the Internet infrastructure. â¨â¨
For example, in 2009 the U.S. and ICANN entered into an agreement that institutionalized "the technical coordination of the Internet's domain name and addressing system." That document included a commitment for the U.S. to remain involved in the Governmental Advisory Committee (GAC), the powerful body within ICANN that allows governments to provide their views on governance matters. It also contained an ICANN commitment to remain headquartered in the U.S., effectively ensuring ongoing U.S. jurisdiction over it.
â¨Not only is the U.S. able to assert jurisdiction over ICANN, but it has also asserted jurisdiction over all dot-com, dot-net, and dot-org domain names. In 2012, a U.S. court ordered the seizure of a dot-com domain that was registered in Canada with no U.S. connection other than the location of the domain name registry. This effectively means the U.S. retains jurisdiction over half of all domain name registrations worldwide regardless of where they are registered or who manages the system.â¨â¨
The U.S. might transition away from the current model (though the initial 2015 date seems ambitious), but much of its jurisdictional power will remain largely unchanged. The latest announcement has the potential to fulfill a promise made nearly two decades ago, but skeptics can be forgiven for suspecting that power over Internet governance will remain firmly rooted in the U.S. no matter how the issue is resolved.
Other key sites
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