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Quebec Takes on the Internet: Government Announces Plans to Require Website Blocking & Studies New Internet Access Tax

Michael Geist Law RSS Feed - Fri, 2015/03/27 - 06:47

The Government of Quebec released its budget yesterday featuring two Internet-related measures that are sure to attract attention and possible litigation. First, it is moving forward with plans to study a new tax on residential Internet services in order to provide support for the cultural sector. The study was recommended by the Quebec Taxation Review Committee, which is looking for new sources of revenue to support the movie, music, and book publishing industries. There are no further details on how much an ISP tax would be, though the plan would increase Internet access costs at the very time that governments are concerned with improving affordability.

Second, the government says it will be introducing a new law requiring ISPs to block access to online gambling sites. The list of blocked sites will be developed by Loto-Quebec, a government agency. The budget states:

A legislative amendment will be proposed to introduce an illegal website filtering measure. In accordance with this measure, Internet service providers will not be allowed to provide access to an online gaming and gambling website whose name is on a list of websites that are to be blocked, drawn up by Loto-Québec. This measure will be applied by the Régie des alcools, des courses et des jeux, which should have the necessary resources to fulfil its new responsibilities.

The government views this as a revenue enhancing measure because it wants to channel gamblers to its own Espacejeux, the Loto-Quebec run online gaming site. A November 2014 report found that Espacejeux was not meeting revenue targets since people were using other sites. It believes that the website blocking will increase government revenues by $13.5 million in 2016-17 and $27 million per year thereafter.

This is a remarkable and possibly illegal plan as the government seeks to censor the Internet for its own commercial gain. The plan would likely face a legal challenge, both on free speech and jurisdictional grounds, since the telecommunication regulations fall within federal jurisdiction (Quebec will counter that provinces are empowered to regulate gambling and consumer protection).

More importantly, website blocking in Canada has been exceedingly rare. Canadian Internet providers block access to some child pornography images under the Cleanfeed Canada initiative, but the blocking is not legislatively mandated and involves images that are illegal to access. Online gambling sites are not illegal to view and to legislate blocking for commercial gain sets a dangerous Canadian precedent. In fact, once blocking gaming and gambling sites is established, it is easy to envision the government requiring blocking of sites that are alleged to infringe copyright or blocking e-commerce sites that are not bilingual or do not pay provincial taxes.

The post Quebec Takes on the Internet: Government Announces Plans to Require Website Blocking & Studies New Internet Access Tax appeared first on Michael Geist.

Why the Crull Controversy Is a Symptom of Bell’s Bad Bundles Bet

Michael Geist Law RSS Feed - Thu, 2015/03/26 - 07:42

The furor over Bell Media President Kevin Crull’s banning of CRTC Chair Jean Pierre Blais from CTV news coverage following the pick-and-pay decision made for a remarkable news day yesterday.  From the initial Globe report to the unprecedented response from Blais to the Crull apology, it was a head-spinning day. While Bell presumably hopes that the apology brings the matter to a close, that seems unlikely to be the case as there are bigger implications for Crull, CTV News, and Bell more broadly.

Crull’s future has been the subject of much talk, with some calling for his resignation, particularly since there is evidence that this is not the first instance of the editorial interference. Assuming it has occurred before (the reference to “re-learning” in the Crull apology is telling), CEO George Cope was undoubtedly aware of the practice and must surely have condoned it, suggesting that Crull will survive. However, Crull’s bigger problem may be that his ability to represent Bell Media before the CRTC has been irreparably damaged. Bell could have Cope represent the company rather than Crull (indicating the seriousness of the issues), but Crull will struggle as the public face of the company before the regulator for as long as Blais remains chair.

The CTV News problem is that the Crull apology does not address the broader systemic problems of editorial interference. Unless it plans to have Robert Fife cover all telecom and broadcast matters, its future coverage will be subject to intense scrutiny and skepticism over whether it is unbiased. As Steve Faguy argues, an independent investigation and stronger walls between editorial and corporate executives is needed. Moreover, Peter Nowak calls for an independent ombudsman within the company to address editorial independence.

The bigger implications are for BCE and Bell Media itself. Crull’s editorial interference reflects what must be enormous corporate frustration with the CRTC. Bell could once reliably count the CRTC as an ally, but the Commission has ruled against it on a host of issues in recent months, including pick-and-pay, simultaneous substitution for the Super Bowl, and the legality of MobileTV service. Those decisions and the Bell frustration speak to the biggest issue of all: the company’s big bet on one bundle – Internet, wireless, broadcast distribution, and content – is falling apart due to market and regulatory changes.

Bell’s bet on vertical integration, which included buying Astral and CTV, was premised on the idea that Canada’s biggest communications company could create the ultimate bundle with consumers buying their Internet access, wireless services, and television packages from a single source. That same source would own the majority of television channels and the Canadian rights to the most popular programs. It could then leverage this control by creating unmatchable offers to entice consumers (ie. data-free mobile access to television services) and give advertisers access to the most comprehensive data on user preferences and online activities.

That might be attractive to business analysts, but the vision has faced steady opposition from government, regulators, and market developments. Government has emphasized the need for more competition in wireless services with spectrum set-asides designed to assist new competitors. As noted above, the CRTC has ruled against Bell on several key issues in recent months and may yet order wholesale access to fibre Internet access. The Privacy Commissioner and/or the CRTC may also rule against the targeted advertising approach. Meanwhile, companies like Netflix have proven to be far more effective competitors than Bell likely anticipated.

It is no coincidence that Bell’s anger boiled over with the pick-and-pay decision, since it was particularly harmful to Bell’s one-bundle vision. A week after the decision, Bell has still not publicly commented on the ruling, but three aspects of the decision represent worst case scenarios for the company. First, pick-and-pay will make it far more difficult for the company to cross-subsidize some of its unpopular channels through bundling. With limited ad revenue and lost subscription revenue, some of those channels will shut down.

Second, the basic service requirement of a $25 package hurts Bell the most, since its Bell Fibe service has the highest price among the major providers for basic service. Further, while it might be inclined to exclude U.S. channels from the basic package, it will be difficult to do if competitors such as Rogers (which argued for inclusion of the U.S. channels in a basic service and is bleeding customers to IPTV services) add them to its service.

Third, as I pointed out earlier this week, the pick-and-pay decision specifically targets vertically integrated companies. For example, starting in September 2018, for every service offered by a vertically integrated cable or satellite company, an independent programming service in the same language must also be offered if available. That policy severely undermines Bell’s ability to leverage its large cohort of channels.

Bell Media has been scrambling to adjust to these developments with calls for blocking U.S. channels, making it more difficult to access U.S. Netflix, levying a TV tax for conventional channels, and challenging the CRTC decisions on MobileTV and simultaneous substitution at the Federal Court of Appeal. But these moves smack of desperation as doubts increase about whether its multi-billion dollar bet on bundling will pay off.

The post Why the Crull Controversy Is a Symptom of Bell’s Bad Bundles Bet appeared first on Michael Geist.

Be wary of one-time pads and other crypto unicorns

Freedom to Tinker - Wed, 2015/03/25 - 18:53
Yesterday, a new messaging app called Zendo got some very favorable coverage from Tech Crunch. At the core of their sales pitch is the fact that they use one-time pads for encryption. With a few strong assumptions, namely that the pads are truly random and are only used once, it’s true that this scheme is “unbreakable” […]

Bell’s Crull Banned CRTC Chair Blais From CTV News Coverage Following TalkTV Decision

Michael Geist Law RSS Feed - Wed, 2015/03/25 - 07:57

The Globe and Mail’s James Bradshaw reports that Bell Media President Kevin Crull banned CTV media properties from including CRTC Chair Jean Pierre Blais in coverage of the recent TalkTV decisions. The report indicates that Crull ordered the head of CTV News to stop including Blais in coverage following an interview on BNN, which led to the cancellation of an interview with Don Martin and dropping him from local news stories (he was included in the national newscast as Robert Fife defied the order). Bell Media has still not publicly commented on the pick-and-pay decision. Crull is the same Bell executive who earlier this month called for the blocking of U.S. channels and for new measures to make it more difficult for Canadians to access U.S. Netflix.

I would say the story is shocking, but this is not the first time of reports that Crull has meddled in news coverage related to his company. In August 2013, Dwayne Winseck reported that Crull intervened on coverage of the wireless sector when Verizon was considering entry into the Canadian market. Winseck posted emails from Crull to news executives throughout CTV urging certain coverage of a wireless report throughout Bell Media’s television and radio stations. I wrote about Winseck’s story here.

Steve Faguy followed up with Bell following the post who claimed that “our news divisions are independently managed and have the full power to make editorial decisions, as outlined in the CTV News Policy Handbook.” That claim is unsurprising, since the CAB Code of Ethics says that “news shall not be selected for the purpose of furthering or hindering either side of any controversial public issue, nor shall it be formulated on the basis of the beliefs, opinions or desires of management, the editor or others engaged in its preparation or delivery.” Yet given that the Wendy Freeman, the President of CTV News, apparently felt that she would be fired if she did not comply with Crull’s demands, Bell’s claims of editorial independence ring hollow.

The post Bell’s Crull Banned CRTC Chair Blais From CTV News Coverage Following TalkTV Decision appeared first on Michael Geist.

Why Your Netflix Traffic is Slow, and Why the Open Internet Order Won’t (Necessarily) Make It Faster

Freedom to Tinker - Wed, 2015/03/25 - 07:07
The FCC recently released the Open Internet Order, which has much to say about “net neutrality” whether (and in what circumstances) an Internet service provider is permitted to prioritize traffic. I’ll leave more detailed thoughts on the order itself to future posts; in this post, I would like to clarify what seems to be a […]

A Conversation About Bill C-51: How the Anti-Terrorism Bill Undermines Canadian Privacy

Michael Geist Law RSS Feed - Tue, 2015/03/24 - 09:31

Yesterday, I had the honour of participating in a terrific panel at the University of Ottawa on Bill C-51 alongside colleagues Dean Nathalie Des Rosiers and Joanne St. Lewis (the panel was moderated by the Toronto Star’s Tonda MacCharles and organized by Carissima Mathen). My remarks focused on the privacy implications of Bill C-51, drawing on a recent column on the issue (Toronto Star version, homepage version). My opening comments are posted below.

A Conversation About Bill C-51

Thanks to Carissima Mathen for organizing this panel. It’s a great idea and given that this week looks like the final week for committee hearings, very timely.

It is hard to know where to start with Bill C-51.  So I’m not going to start with the bill at all.  In fact, I’d like to share my context for reviewing the bill and provide a far more personal take than is typical. There is good reason for doing so – if you have followed the rather limited committee hearings to date, you know that government MPs have made deeply personal comments, raising questions about the loyalty to Canada of some witnesses and whether critics of the bill believe terrorism is a threat.

So, let me be clear.  My children go or have gone to a school that has 24 hour security.  They get buzzed into the building by a security guard.  Their lunch boxes are tagged so that non-tagged bags can be easily identified in case of a threat. My community centre has 24 hour security and requires identification to enter in a manner reminiscent of some embassies.  When I go to synagogue, there are armed police who prominently guard the building.  All of this is for good reason. There have been attacks in recent months around the world on Jewish synagogues, museums, and grocery stores that has resulted in the murder of innocent civilians.

The terror threat is something that my family feels everyday.

That’s my context for C-51.  But my context also comes from being engaged in privacy related issues for most my career. I have a book coming out in a couple of months – an edited volume with contributions from scholars from across the country include Forcese, Roach, Austin, Parsons, and others – on privacy and security in Canada in the post-Snowden environment that shapes my thinking.  And that experience, as well as the work of exceptional scholars, leaves me convinced that providing law enforcement with the powers it needs is a far cry from granting it a blank cheque.

The Snowden revelations have made it abundantly clear that given the capability, intelligence agencies and law enforcement will monitor and gather everything they can and then disseminate and data mine that information in every conceivable way.  This means tracking everything.  Indeed, it is why the nearly weekly reports about an NSA or CSE or GCHQ initiative to gather all Internet communications or hack into private systems no longer shocks. For example, we know that Canadian agencies grab tens of millions of downloads every day from users around the world. We know that Canadian Internet communications pass through routers that collect the metadata on all communications.  These are our agencies working on concert with others, yet the activities merit barely a mention.

This is the current reality.  I would prefer – in fact, I think we desperately need – far stronger limits on data collection, which is currently indistinguishable from mass surveillance. We also need stronger safeguards on its dissemination, disclosure, and use.  And we need far better oversight to ensure that this massive data collection does not run afoul of the law and is not misused.

That too is part of my context for Bill C-51 and which brings me to the information sharing provisions in the bill.

The privacy-related concerns in the bill stem from the Security of Canada Information Sharing Act (SCISA), a bill within the bill, that goes far further than sharing information related to terrorist activity.  It does so in three steps.

First, the bill permits information sharing across government for an incredibly wide range of purposes, most of which have nothing to do with terrorism. The government has tried to justify the provisions on the grounds that Canadians would support sharing information for national security purposes, but the bill allows sharing for reasons that would surprise and disturb most Canadians.

The bill opens the door to information sharing due to “activity that undermines the security of Canada.” Rather than using the CSIS Act definition, however, it creates a new expansive definition. Terrorism is included within the definition, but several of these provisions would seemingly allow for information sharing for almost any investigative purpose, particularly “public safety” and the “economic or financial stability of Canada.”

Further, the provision excluding “lawful advocacy” provides little comfort, given the ease with which those protections can be lost due to a municipal violation or other technical issue. Those expressing fears about these provisions covering advocacy or protests have good reason for doing so.

Second, the scope of sharing is exceptionally broad. The government not only opens the door to sharing information for a myriad of non-terrorism purposes, but it also permits access for a broad array of government institutions and departments. The bill currently identifies the following 17 institutions and departments:

•    Canadian Border Services Agency
•    Canada Revenue Agency
•    Canadian Armed Forces
•    Canadian Food Inspection Agency
•    Canadian Nuclear Safety Commission
•    CSIS
•    CSE
•    Citizen and Immigration
•    Finance
•    Foreign Affairs, Trade, and Development
•    Health
•    National Defence
•    Public Safety
•    Transport
•    FINTRAC
•    Public Health Agency
•    RCMP

That list can grow, however, with cabinet empowered to add institutions and departments by regulation. Moreover, the inclusion of CSE, which as noted has been the focal point of the Internet surveillance debate due to the Snowden revelations, suggests that CSE information could be readily shared across government departments despite repeated claims that its work does not target Canadians.

In addition to this form of information sharing, the bill also permits additional use and disclosure of information “in accordance with the law…to any person, for any purpose.” Section 6 states:

For greater certainty, nothing in this Act prevents a head, or their delegate, who receives information under subsection 5(1) from, in accordance with the law, using that information, or further disclosing it to any person, for any purpose.


It is worth repeating – “disclosing the information to any person, for any purpose.”

Third, oversight is indeed a problem since the privacy protections found in Privacy Act are widely viewed as already outdated. In fact, Bill C-51 effectively neuters the core protections found in the Privacy Act by opening the door to the very kind of information sharing that the law is intended to prevent.

Since the enactment of the Privacy Act in 1983, every federal privacy commissioner has urged the government of the day to strengthen it. Those calls have grown louder over the past decade as PIPEDA places tougher obligations on the private sector than the government places on itself. The law as it currently stands has weak annual reporting requirements from government agencies, does not provide much protection to Canadians from abusive treatment by foreign states, does not give the Privacy Commissioner order-making power, does not provide redress in cases involving harm, does not prevent over-collection of personal information, does not protect against surveillance where the data is not recorded, and does not feature security breach disclosure requirements.

Given its impact, it should come as no surprise that in recent weeks, all privacy commissioners from across the country have spoken out. For example, Privacy Commissioner of Canada Daniel Therrien, appointed by the government less than a year ago and described as an expert by Prime Minister Stephen Harper, slammed the bill:

the scale of information sharing being proposed is unprecedented, the scope of the new powers conferred by the Act is excessive, particularly as these powers affect ordinary Canadians, and the safeguards protecting against unreasonable loss of privacy are seriously deficient.  While the potential to know virtually everything about everyone may well identify some new threats, the loss of privacy is clearly excessive.  All Canadians would be caught in this web.

All provincial privacy commissioners have offered a similar analysis, jointly calling on the government to withdraw the information sharing aspects of the bill. They also warn of routine surveillance of large portions of the population:

It could be used to authorize, in effect, surveillance across governments in Canada, and abroad, for virtually unlimited purposes. Such a state of affairs would be inconsistent with the rule of law in our democratic state and contrary to the expectations of Canadians.

The privacy community may be unanimous in condemning the information sharing provisions in Bill C-51, but discouragingly Liberal leader Justin Trudeau has pointed to those provisions as one of the positives of the bill.

What he should be saying – along with all opposition MPs and the broader public – is that this bill needs amendment.  There may be times when we want government to be able to share information more aggressively to counter a legitimate security threat.  Yet that can still occur with amendments that would adopt the CSIS Act approach to security threat (thereby limiting the scope of sharing) and building in stronger oversight through both the Privacy Commissioner of Canada (via the Privacy Act) and addressing the ongoing concerns with CSIS and CSE oversight.

The post A Conversation About Bill C-51: How the Anti-Terrorism Bill Undermines Canadian Privacy appeared first on Michael Geist.

Privacy Under Attack in Anti-Terror Bill

Michael Geist Law RSS Feed - Tue, 2015/03/24 - 09:23

Appeared in the Toronto Star on March 14, 2015 as Privacy Under Attack in Anti-Terror Bill

As witnesses line up to warn about the dangers associated with Bill C-51, Canada’s anti-terrorism bill, it is increasingly clear that the proposed legislation is an unprecedented undermining of Canadian privacy protection. Much of the focus on the bill has related to oversight: the government implausibly claims that it increases oversight (it does not), the Liberals disappointingly say they support the bill but would like better oversight, and much of the NDP criticism has also centered on oversight. Yet with respect to privacy and Bill C-51, lack of oversight is only a part of the problem.

The privacy-related concerns stem from Bill C-51′s Security of Canada Information Sharing Act (SCISA), a bill within the bill, that goes far further than sharing information related to terrorist activity. It does so in three steps.

First, the bill permits information sharing across government for an incredibly wide range of purposes, most of which have nothing to do with terrorism. The government has tried to justify the provisions on the grounds that Canadians would support sharing information for national security purposes, but the bill allows sharing for reasons that would surprise and disturb most Canadians.

Second, the scope of sharing is exceptionally broad, covering 17 government institutions with government granting itself the right to expand sharing to other departments. In fact, the bill even permits further disclosure “to any person, for any purpose.” In other words, there are few limits on how information the government collects can be shared internally, with other governments, or with any entity it sees fit.

Third, oversight is indeed a problem since the privacy protections found in Privacy Act are widely viewed as already outdated. In fact, Bill C-51 effectively neuters the core protections found in the Privacy Act by opening the door to the very kind of information sharing that the law is intended to prevent.

In recent weeks, all privacy commissioners from across the country have spoken out. For example, Privacy Commissioner of Canada Daniel Therrien, appointed by the government less than a year ago and described as an expert by Prime Minister Stephen Harper, slammed the bill:

the scale of information sharing being proposed is unprecedented, the scope of the new powers conferred by the Act is excessive, particularly as these powers affect ordinary Canadians, and the safeguards protecting against unreasonable loss of privacy are seriously deficient.  While the potential to know virtually everything about everyone may well identify some new threats, the loss of privacy is clearly excessive.  All Canadians would be caught in this web.

All provincial privacy commissioners have offered a similar analysis, jointly calling on the government to withdraw the information sharing aspects of the bill. They also warn of routine surveillance of large portions of the population:

It could be used to authorize, in effect, surveillance across governments in Canada, and abroad, for virtually unlimited purposes. Such a state of affairs would be inconsistent with the rule of law in our democratic state and contrary to the expectations of Canadians.

The privacy community may be unanimous in condemning Bill C-51, but perhaps the biggest disappointment is to see how Harper has flipped on the importance of privacy protection over the information collected by governments.

Nearly twenty years ago, he was a Reform MP commenting on a proposed electronic voter registry and warning that “the first and main concern is the privacy issue … since the information is to be shared by different levels of government and different governmental bodies. There is a risk that privacy can compromised.”

Today, the Prime Minister is fast tracking a bill that represents the biggest ever reduction in Canadian public sector privacy protection and even blocking the Privacy Commissioner of Canada from appearing before the committee studying the bill. This is a remarkable about-face and one that could leave Canada with some of the weakest safeguards against government information sharing in the developed world.

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 Privacy Under Attack in Anti-Terror Bill appeared first on Michael Geist.

Why the Vertically Integrated TV Giants Are the CRTC’s Hidden Target in Pick-and-Pay Decision

Michael Geist Law RSS Feed - Mon, 2015/03/23 - 11:19

The Canadian Radio-television and Telecommunications Commission last week announced much-anticipated plans to require cable and satellite companies to offer consumers basic television packages for an affordable $25 per month alongside the option of picking the television channels they want without requiring them to purchase expensive bundles.

Despite some hand wringing that the changes will lead to reduced revenues for broadcasters, my weekly technology law column (Toronto Star version, homepage version) notes that it is readily apparent that the CRTC is committed to reducing or eliminating outdated regulations in the hope of fostering a more competitive broadcast environment. Consumer choice for television channels, greater flexibility for broadcaster programming, adjustments to Canadian content requirements, and the enforcement of net neutrality rules all fall within the same broader strategy of exercising its regulatory muscle to enable a level playing field and encourage the development of globally competitive content.

What makes the latest CRTC decision particularly notable is that it identifies a new threat to a competitive broadcast environment. Much to the chagrin of many within the Canadian system, it isn’t Netflix. In recent months, seemingly everyone has had a turn taking shots at the enormously popular online video service: the Government of Ontario has called for a Netflix tax, Bell Media has asked for measures to block access to the U.S. service, and many creator groups have urged the CRTC to adopt new regulations for online media.

Yet the commission is seemingly far more concerned with the impact of vertically integrated broadcast giants than it is with Netflix. Indeed, the “pick-and-pay” decision includes several safeguards against potential anti-competitive conduct by the vertically integrated companies, who combine ownership of conventional and specialty broadcasters, cable or satellite broadcast distributors, broadband Internet access providers, and wireless services.

Consider the justification the commission gave for mandating pick-and-pay channels. After noting some companies maintained that the market alone would lead to greater consumer choice, it stated:

“this approach does not take into account the fact that vertically integrated broadcast distributors (BDUs) have every incentive to ensure that their related programming services are insulated from the financial pressures that come with greater choice and packaging flexibility. As such, BDUs, and vertically integrated BDUs in particular, may not be sufficiently incented to make the necessary changes to their current offerings or might make these changes at a much slower pace than that desired by Canadian subscribers.”

In other words, without rules mandating the pick-and-pay option, companies like Bell and Rogers are likely to drag their feet on making changes in order to protect their broadcast interests.

But the CRTC decision involves far more than just pick-and-pay. It notes that Bell, Rogers, and Shaw/Corus control nearly 80 per cent of English language “Category A” services (specialty services that must be carried by broadcast distributors) and that two-thirds of the French language services are owned by Quebecor, Bell, and Shaw/Corus.

The CRTC is creating new measures that target those vertically integrated companies. For example, starting in September 2018, for every service that is owned and distributed by a vertically integrated cable or satellite company, an independent programming service in the same language must also be offered if available. Both Bell and Rogers had recommended a 2:1 ratio, while Quebecor opposed any rules.

Moreover, the CRTC is expanding a wholesale code that governs negotiations between broadcasters and programmers by creating more safeguards against unreasonable terms and pricing. The commission announced that it will amend the code to require vertically integrated cable and satellite companies to ensure that independent programming services are given packaging and marketing support that is comparable to what they give their own services.

Why the focus on vertically integrated companies rather than on Netflix? It comes down to competition. Rather than viewing Netflix as a threat, the CRTC rightly sees it as a pro-competitive entrant that creates more consumer choice and forces others to innovate. Its real concern lies with the vertically integrated companies, who may find it in their interests to create competitive barriers since increased consumer choice could be viewed as a threat to their broadcast interests.

The post Why the Vertically Integrated TV Giants Are the CRTC’s Hidden Target in Pick-and-Pay Decision appeared first on Michael Geist.

Vertically Integrated TV Giants Are the CRTC’s Hidden Target

Michael Geist Law RSS Feed - Mon, 2015/03/23 - 11:17

Appeared in the Toronto Star on March 21, 2015 as TV Giants are the CRTC’s Real Target

The Canadian Radio-television and Telecommunications Commission last week announced much-anticipated plans to require cable and satellite companies to offer consumers basic television packages for an affordable $25 per month alongside the option of picking the television channels they want without requiring them to purchase expensive bundles.

Despite some hand wringing that the changes will lead to reduced revenues for broadcasters, it is readily apparent that the CRTC is committed to reducing or eliminating outdated regulations in the hope of fostering a more competitive broadcast environment. Consumer choice for television channels, greater flexibility for broadcaster programming, adjustments to Canadian content requirements, and the enforcement of net neutrality rules all fall within the same broader strategy of exercising its regulatory muscle to enable a level playing field and encourage the development of globally competitive content.

What makes the latest CRTC decision particularly notable is that it identifies a new threat to a competitive broadcast environment. Much to the chagrin of many within the Canadian system, it isn’t Netflix. In recent months, seemingly everyone has had a turn taking shots at the enormously popular online video service: the Government of Ontario has called for a Netflix tax, Bell Media has asked for measures to block access to the U.S. service, and many creator groups have urged the CRTC to adopt new regulations for online media.

Yet the commission is seemingly far more concerned with the impact of vertically integrated broadcast giants than it is with Netflix. Indeed, the “pick-and-pay” decision includes several safeguards against potential anti-competitive conduct by the vertically integrated companies, who combine ownership of conventional and specialty broadcasters, cable or satellite broadcast distributors, broadband Internet access providers, and wireless services.

Consider the justification the commission gave for mandating pick-and-pay channels. After noting some companies maintained that the market alone would lead to greater consumer choice, it stated:

“this approach does not take into account the fact that vertically integrated broadcast distributors (BDUs) have every incentive to ensure that their related programming services are insulated from the financial pressures that come with greater choice and packaging flexibility. As such, BDUs, and vertically integrated BDUs in particular, may not be sufficiently incented to make the necessary changes to their current offerings or might make these changes at a much slower pace than that desired by Canadian subscribers.”

In other words, without rules mandating the pick-and-pay option, companies like Bell and Rogers are likely to drag their feet on making changes in order to protect their broadcast interests.

But the CRTC decision involves far more than just pick-and-pay. It notes that Bell, Rogers, and Shaw/Corus control nearly 80 per cent of English language “Category A” services (specialty services that must be carried by broadcast distributors) and that two-thirds of the French language services are owned by Quebecor, Bell, and Shaw/Corus.

The CRTC is creating new measures that target those vertically integrated companies. For example, starting in September 2018, for every service that is owned and distributed by a vertically integrated cable or satellite company, an independent programming service in the same language must also be offered if available. Both Bell and Rogers had recommended a 2:1 ratio, while Quebecor opposed any rules.

Moreover, the CRTC is expanding a wholesale code that governs negotiations between broadcasters and programmers by creating more safeguards against unreasonable terms and pricing. The commission announced that it will amend the code to require vertically integrated cable and satellite companies to ensure that independent programming services are given packaging and marketing support that is comparable to what they give their own services.

Why the focus on vertically integrated companies rather than on Netflix? It comes down to competition. Rather than viewing Netflix as a threat, the CRTC rightly sees it as a pro-competitive entrant that creates more consumer choice and forces others to innovate. Its real concern lies with the vertically integrated companies, who may find it in their interests to create competitive barriers since increased consumer choice could be viewed as a threat to their broadcast interests.

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 Vertically Integrated TV Giants Are the CRTC’s Hidden Target appeared first on Michael Geist.

Security flaw in New South Wales puts thousands of online votes at risk

Freedom to Tinker - Sun, 2015/03/22 - 08:45
Update Mar. 23 1:30 PM AEDT: Our response to the NSWEC’s response New South Wales, Australia, is holding state elections this month, and they’re offering a new Internet voting system developed by e-voting vendor Scytl and the NSW Electoral Commission. The iVote system, which its creators describe as private, secure and verifiable, is predicted to […]

Beware of the Scare Tactics, Part Two: CRTC Unveils Cheap Basic Service and Pick-and-Pay

Michael Geist Law RSS Feed - Fri, 2015/03/20 - 08:36

As expected, the CRTC ruled yesterday that it will require cable and satellite companies to offer a mandatory basic service capped at $25 per month (which may include U.S. channels) and a pick-and-pay alternative for individual channels no later than December 2016. As also expected, the doomsayers are out in full force, trying to explain why a low priced service and more consumer choice will lead to higher cable bills. The Globe and Mail’s Kate Taylor predicts “my bet is that most Canadians will find themselves piecing together a smaller cable package that will cost just about the same as the old behemoth.” The National Post’s Terrance Corcoran says that no one will buy the basic bundle and that “what is clear is that, when viewers start picking [bundles and channels], the amount they end up paying could go up.”

Yet that analysis runs counter to what business analysts expect to happen. Maher Yaghi of Desjardins Capital Markets says the changes could “lead to a reduction of $5 to $10 in monthly [revenue per user] as customers get the option to choose the channels they want to watch and move discretionary money toward OTT (over-the-top) services such as Netflix.” Canaccord Genuity analyst Dvai Ghose suggests even bigger declines of $9 to $21 for some customers. In fact, Ghose notes that “current entry-level TV monthly prices for the large BDUs are as follows: Bell Fibe TV $45.95, Rogers Cable $40.48, Shaw $39.90 and Videotron $38.00 and Telus $34.00 ($29.00 if bundled).” A $25 service is obviously going to result in reduced spending for those consumers.”

Critics keep claiming that the changes will result in billions in lost revenue. For example, Friends of Canadian Broadcasting says that more than $2 billion per year could be lost under a pick-and-pay system. The CRTC rejected those claims, but if they are even close to correct, how do you take $2 billion out of the system? By having consumer spend less on broadcast services. It simply makes no sense to suggest that broadcasters will earn less, broadcaster distributors will earn less, but somehow consumers will spend more.

Beyond the obvious economics, critics like Taylor and Corcoran emphasize that consumers will have to piece together bundles or more expensive pick-and-pay channels in order to get what they want. For example, Taylor says consumers will be looking for U.S. channels in their package. They can be included in the basic $25 service, but if they are not, they will be forced onto a higher tier. The fallacy with this analysis is that it thinks of consumer choices as limited to the cable system. This might have been true years ago, when consumers had few other choices (OTA the exception) than purchasing cable services.

No longer. Cable and satellite must now compete with streaming services such as Netflix, sports packages, and (soon in the U.S.) HBO and something that looks a lot like basic cable from Apple. The price points of streaming services are far lower than a cable bill of basic plus lots of bundles or individual channels (there is also an Internet bill, but consumers are buying Internet access with or without streaming services).

Cable and satellite services can try to piece together a crappy basic service without U.S. channels or set high fees for individual channels. But in a competitive market, there will be a strong disincentive against doing so. My bet would be that the major cable providers will include U.S. channels on basic because that is what the market wants and if they don’t, many will simply walk away altogether. Indeed, it was Rogers that specifically asked for the U.S. networks to be included on the basic package. The same is true for high prices for standalone services. Some might be pricey, but typically when there are no other alternatives to the same programming. When consumers have other options – streaming sports packages rather than TSN or Sportsnet rather than TSN – the market will keep prices in check.

Some Canadians will obviously continue to buy expensive bundles or retain their existing service. Old habits are slow to change. But they do change (as the newspaper or music industry can attest). With the new changes, those who currently purchase basic service will certainly save money. Moreover, the next generation of potential subscribers – my kids and my students – will only subscribe if cable or satellite offers better value than the online alternatives.

The post Beware of the Scare Tactics, Part Two: CRTC Unveils Cheap Basic Service and Pick-and-Pay appeared first on Michael Geist.

Why Did the CRTC Mandate Pick-and-Pay? Because BDU’s Wouldn’t Do It On Their Own

Michael Geist Law RSS Feed - Thu, 2015/03/19 - 17:44

The CRTC released its TalkTV decision this afternoon and – as expected – it includes a mandatory basic service capped at $25 per month (which may include U.S. channels) and mandates a pick-and-pay alternative no later than December 2016.  Why did the CRTC conclude that it needed to regulate a pick-and-pay option?  Because the public wanted it and it was convinced that cable and satellite providers would not do it on their own. This passage from the decision tells you everything you need to know and gets it exactly right:

while some parties argued that it would be sufficient to prohibit programmers from preventing BDUs from offering programming services on a pick-and-pay or build-your-own-package basis, this approach does not take into account the fact that vertically integrated BDUs have every incentive to ensure that their related programming services are insulated from the financial pressures that come with greater choice and packaging flexibility. As such, BDUs, and vertically integrated BDUs in particular, may not be sufficiently incented to make the necessary changes to their current offerings or might make these changes at a much slower pace than that desired by Canadian subscribers. Moreover, the Commission considers that BDUs have not generally demonstrated that they would willingly move to more flexible packaging options on their own.

The post Why Did the CRTC Mandate Pick-and-Pay? Because BDU’s Wouldn’t Do It On Their Own appeared first on Michael Geist.

Beware of the Scare Tactics: CRTC To Announce Pick-And-Pay TV Today

Michael Geist Law RSS Feed - Thu, 2015/03/19 - 09:46

The CRTC will release its latest decision in the TalkTV consultation later today as it announces much-anticipated plans to require cable and satellite companies to offer consumers the option of picking the television channels they want without requiring them to purchase expensive bundles. The decision, which builds on earlier rulings that focus on a more competitive marketplace, will fulfill the government’s promise to bring in consumer choice for television packages, which was a prominent part of its 2013 Speech from the Throne.

The specifics are yet to come, but the CRTC will likely require distributors to offer a basic service of Canadian and mandatory channels at a relatively low price (a 2014 working document suggested a cap of between $20 – $30/month), offer consumers a pick-and-pay option, and adjust the Canadian content requirement for bundles.

Consumers will emerge as the clear winners, benefiting from increased choice and the potential to lower their monthly bills. Yet the CRTC decision will undoubtedly be greeted by doomsayers who will argue that pick-and-pay will increase prices and decrease choice (because some channels will fold).

It seems likely that some channels with small audiences will shut down, but that merely means that consumers have been sustaining them through inflexible bundles for years. The notion that consumers are better off paying for channels which they don’t watch merely because distributors enjoyed market power to force them to do so is a strange notion of consumer welfare. If there is a public interest in maintaining a channel, there are better forms of support than forcing millions of Canadians to pay for something they don’t want.

As for consumer costs, there may well be sticker shock at the prices of some services sold on an individual basis. However, this Financial Post article notes that analysts expect monthly revenue per user to decline by $5 to $10 per month. In other words, the amount consumers spend on cable and satellite subscriptions will decline. Consumers may choose to spend that money on other programming – Netflix or other online video services – but their choices will now better reflect their interests, not those of the broadcast distributor. In fact, while some specialty services will be very pricey on a standalone basis, the increasing availability of streaming alternatives for sports, movies, and other programming suggests that there will be competitive pressures to keep prices in check, particularly given the threat of consumers leaving the system altogether in favour of unregulated alternatives.

The post Beware of the Scare Tactics: CRTC To Announce Pick-And-Pay TV Today appeared first on Michael Geist.

What should we do about re-identification? A precautionary approach to big data privacy

Freedom to Tinker - Thu, 2015/03/19 - 08:18
Computer science research on re-identification has repeatedly demonstrated that sensitive information can be inferred even from de-identified data in a wide variety of domains. This has posed a vexing problem for practitioners and policy makers. If the absence of “personally identifying information” cannot be relied on for privacy protection, what are the alternatives? Joanna Huey, […]

Defending Privacy Doesn’t Pay: Federal Court Issues Ruling in Voltage – TekSavvy Costs

Michael Geist Law RSS Feed - Wed, 2015/03/18 - 10:37

The Federal Court has issued its ruling on the costs in the Voltage – TekSavvy case, a case involving the demand for the names and address of thousands of TekSavvy subscribers by Voltage on copyright infringement grounds. Last year, the court opened the door to TekSavvy disclosing the names and addresses, but also established new safeguards against copyright trolling in Canada. The decision required Voltage to pay TekSavvy’s costs and builds in court oversight over any demand letters sent by Voltage.

The issue of costs required another hearing with very different views of the costs associated with the case. TekSavvy claimed costs of $346,480.68 (mainly legal fees and technical costs associated with complying with the order), while Voltage argued the actual costs should be $884. The court disagreed with both sides, settling on costs of $21,557.50 or roughly $11 per subscriber name and address. The decision unpacks all the cost claims, but the key finding was that costs related to the initial motion over whether there should be disclosure of subscriber information was separate from the costs of abiding by the order the court ultimately issued. The motion judge did not address costs at the time and the court now says it is too late to address them.

That approach seemingly does not reflect how the parties viewed the case given that this was an unprecedented action. With TekSavvy now bearing all of those motion costs (in addition to costs associated with informing customers), the decision sends a warning signal to ISPs that getting involved in these cases can lead to significant costs that won’t be recouped. That is a bad message for privacy. So is the likely outcome for future cases (should they arise) with subscribers left with fewer notices and information from their ISP given the costs involved and the court’s decision to not compensate for those costs.

The big question now is whether Voltage will proceed with the case. Given their expense to date, they will likely pay the costs and obtain the names. However, they must be committed to going to court over the claims, since the court made it clear that merely sending threats would be viewed as copyright trolling for future claims. Yet with the cap on liability for non-commercial infringement, the further costs of litigating against individuals, the actual value of the works, and the need to obtain court approval on demand letters, it is hard to see how this is a business model that works. Indeed, that is what the court initial noted, stating that “damages against individual subscribers even on a generous consideration of the Copyright Act damage provisions may be miniscule compared to the cost, time and effort in pursuing a claim against the subscriber.”

Further, the market has shifted in Canada with rights holders using the new notice-and-notice system to accomplish much the same thing. Their personal information is not disclosed but the demands for payment still make it through to the subscriber. That has left Canadians facing a barrage of notices and demands for settlements. It points to why the government needs to address the costs and loopholes in the notice-and-notice system, which is now being used to circumvent the courts by pressuring subscribers to pay settlement demands with ISPs bearing all the costs of forwarding notifications.

The post Defending Privacy Doesn’t Pay: Federal Court Issues Ruling in Voltage – TekSavvy Costs appeared first on Michael Geist.

When is a Copy not a Copy?: Technological Neutrality at Stake at the Supreme Court of Canada

Michael Geist Law RSS Feed - Tue, 2015/03/17 - 09:55

The Supreme Court of Canada heard arguments yesterday in the copyright case of CBC v. SODRAC. While the case was ultimately about whether CBC should be required to pay royalties for incidental copies necessary to use new broadcast technologies, at stake was something far bigger: the future of technological neutrality under Canadian copyright law.

CBC argued that technological neutrality means that it should not pay for incidental copies since it already pays for the use of music in broadcasts. The incidental copies – copies which are made to create the final broadcast version of a program (including copies from the master to a content management system or other internal copies to facilitate the broadcast) – do not generate revenue and are simply made to facilitate use of the music that is paid for through a licence. SODRAC, a Quebec-based copyright collective, countered that CBC had always paid for these copies and that the CBC argument was the reverse of technological neutrality, since it wanted to avoid payment in the digital world for copies that were being paid for with earlier, analog technologies.

The case emerged as an important one when the question of the meaning of technological neutrality took centre stage. That elicited interveners such as Music Canada, which argued for a narrow interpretation of the principle, claiming that it was just an “interpretative metaphor” (similar arguments about users’ rights being no more than a metaphor were rejected by the Supreme Court in 2012). The danger in the case from a technological neutrality perspective is that the Supreme Court could roll back its finding that technological neutrality is a foundational principle within the law. Moreover, if the court were to rule that all copies – no matter how incidental – are copies for the purposes of the Copyright Act, there would be the very real possibility of payment demands for the myriad of copies that occur through modern technologies.

For those concerned with this outcome, the hearing did not start well, as the Supreme Court was clearly skeptical of the CBC’s arguments, leaving some judges confused and others openly critical (I attended the hearing). The first intervener, Howard Knopf, raised important arguments on behalf of the Centre for Intellectual Property Policy and Professor Ariel Katz on whether Copyright Board tariffs can be mandatory on users. Those arguments felt like a prelude to a future battle with Access Copyright and the court may lay the groundwork for that potential case with this decision.

Technological neutrality was left to my colleague, Jeremy deBeer, appearing on behalf of CIPPIC, which also intervened in the case. CIPPIC’s argument provided the court with another option: establish a test grounded in existing law on when a copy should be treated as a copy for copyright law purposes. CIPPIC’s fear:

In a digital environment, treating literally every copy as a reproduction is simply not realistic. Take basic web browsing for example, which involves countless ephemeral reproductions not only by intermediaries but also by end users. Reading an e-book is impossible without ephemeral copying. Interpreting the reproduction right literally would, in practical terms, give copyright owners unprecedented control over other people’s ability to even access digital content – in technological terms, accessing digital content cannot be done without prolific ephemeral copying.

CIPPIC’s brief notes that the Supreme Court has already ruled that not all communications fall within the Copyright Act’s communication right and that the same should be true for reproductions. Simply put, not all copies have value and deserve compensation. The challenge is to develop a test that identifies where the value lies. During the argument, deBeer invited the court to establish a clear test for when a copy qualifies as a reproduction by citing three criteria: there must be a reproduction (as Theberge held), the copy must be durable (drawing from ESA), and it must be material (taken from Section 3 of the Copyright Act).

The proposed test clearly attracted the court’s attention because it opened the door to establishing a technologically neutral approach to reproduction. In fact, SODRAC indicated during argument that it agreed with deBeer’s proposal (contending that the copies in this case qualified as reproductions under the test).

As for a narrow interpretation of technological neutrality, the court did not seem interested in backtracking on its earlier decisions. In fact, when Music Canada’s counsel Barry Sookman raised the issue, Justice Marshall Rothstein, who wrote the dissent in the ESA technological neutrality decision, noted that “I thought we lost that argument in ESA.”

While it is risky to read too much into oral arguments, given the fact that the government referenced technological neutrality in the 2012 copyright law amendments (which the court also mentioned), the case may ultimately serve to reinforce the importance of the technological neutrality principle and confirm that in the digital world, not every copy is a copy for the purposes of the Copyright Act.

The post When is a Copy not a Copy?: Technological Neutrality at Stake at the Supreme Court of Canada appeared first on Michael Geist.

When the Walls Come Crumbling Down: The CRTC’s Latest TalkTV Decision

Michael Geist Law RSS Feed - Fri, 2015/03/13 - 09:42

In September 2007, I wrote a column titled “Canadian Broadcasting Policy for a World of Abundance”, which focused on a report commissioned for the CRTC that recognized that  conventional broadcast regulations were crumbling in the face of new technologies and the Internet. As it turns out, the Dunbar-Leblanc report was ahead of its time as the CRTC was not ready for the regulatory overhaul it recommended.

No longer.

Standing beside two giant screens proclaiming “Age of Abundance”, CRTC Chair Jean-Pierre Blais unveiled the latest round of decisions from the TalkTV hearing and left little doubt that the Commission is now ready to lead with changes that have been a long time in coming. For Canada’s broadcast regulator, it was time to admit that decades-old policies must adapt to a changing environment in which the viewer is in control (or the emperor, in Blais’ words).  Those policies were largely built on creating a regulatory wall for the Canadian system with Cancon requirements, genre protection, foreign ownership rules, and simultaneous substitution. Like many walls, the rules shielded the Canadian market from competition, guaranteeing a place for Canadian content and limiting the impact of more popular U.S. programming.

Yet the wall has been steadily crumbling since rules no longer shield Canadian broadcasters or creators from competition. The industry has reacted in different ways to the crumbling wall. Some, such as the Writers’ Guild (or the Ontario government), want to patch the wall by regulating new services such as Netflix. The group issued a release yesterday arguing that the migration to unlicensed platforms raises concerns about medium-to-long term sustainability as they want the CRTC to require Netflix to contribute funds toward Canadian content (ie. a Netflix tax). Others, such as Bell Media, want to build a bigger wall. Last week, Bell Media CEO Kevin Crull called for blocking U.S. channels and adopting measures to make it more difficult for Canadians to access US Netflix.

Yesterday, the CRTC made it clear that it believes the way forward does not involve extending or expanding the regulatory wall. Instead, it recognizes that broadband Internet allows Canadians to effortless circumvent the wall, watching what they want, where they want, and when they want. The new regulatory structure therefore focuses primarily on three ways to tear down the wall by creating a more competitive broadcast environment.

First, the consumer choice that is an integral part of the Internet is being extended to conventional broadcast. The pick-and-pay world of television channels won’t be announced until next week, but yesterday’s decision helped lay the groundwork for pick-and-pay by removing some of the licensing limitations that make it difficult for broadcasters to convince consumers to pay for their service. Under the new rules, genre protection is eliminated, meaning there can be more competition in specialty areas and specialty services will be better able to respond to the market with their programming choices. Moreover, discretionary services with audiences under 200,000 subscribers will be exempt from licensing. All of this is designed to force broadcasters to compete (the elimination of simultaneous substitution, which was likely part of the CRTC’s original plan, would have done so as well). This should create a real market with broadcasters enjoying greater freedom in what they program and consumers finally permitted to make their own subscription choices on a pick-and-pay basis.

Second, the CRTC is changing some of the rules with respect to Canadian content. These include pilot project changes in what counts as Canadian content (an effort to expand the scope of potential Canadian productions), the removal of Cancon requirements during the daytime programming (creating incentives to make bigger investments in prime time programming), and initiatives to promote Canadian content. While some are skeptical about the likelihood of success, the premise is that good enough is no longer good enough. As the wall comes down, Canadian content must stand on its own and these changes are designed to increase the chances of that happening.

Third, the CRTC has been working to address Internet-related competition concerns. The Commission’s decision on Bell’s Mobile TV service brings net neutrality into the discussion as it was concerned that zero-rating would “may end up inhibiting the introduction and growth of other mobile TV services accessed over the Internet, which reduces innovation and consumer choice.” Moreover, yesterday’s decision created a new class of video on demand service known as a hybrid service that borrows from both the regulated video on demand services and the Internet-based video services. The full rules are still to be determined, but the goal would appear to be encourage services such as CraveTV and Shomi to compete in the Internet video space (or face conventional regulation and obligations). Further, it goes without saying that the CRTC did not adopt a Netflix tax, leaving the Internet-only space largely unregulated.

While success is by no means certain, Blais made it clear that the Commission is ready to fight for its new vision of Canadian broadcast regulation. I was in the audience for the speech and the one comment that generated an audible gasp was the following:

If you hear criticisms of our decisions ask yourself this question: Are the arguments advanced by these critics those of the public interest or are they rather those that find their true roots in private entitlement, dressed up to look like they are founded on the broader public interest? This town is full of lobbyists whose job it is to spin their client’s private interests into something else, to wrap themselves up, as it were, in the flag, and to puff about Parliament Hill with an air of shock and dismay. I respect their right to do so, but I respect more the rights, expectations and wishes of Canadians we serve.

In a room full of the clients and their lobbyists, Blais offered his unofficial response to the recent Bell lawsuits against CRTC decisions and the likely backlash against his latest plan: bring it on.

The post When the Walls Come Crumbling Down: The CRTC’s Latest TalkTV Decision appeared first on Michael Geist.

On compromising app developers to go after their users

Freedom to Tinker - Thu, 2015/03/12 - 13:35
In a recent article by Scahill and Begley, we learned that the CIA is interested in targeting Apple products. I largely agree with the quote from Steve Bellovin, that “spies gonna spy”, so of course they’re interested in targeting the platform that rides in the pockets of many of their intelligence collection targets. What could […]

Why The Anti-Terrorism Bill is Really an Anti-Privacy Bill: Bill C-51′s Evisceration of Privacy Protection

Michael Geist Law RSS Feed - Thu, 2015/03/12 - 09:22

“The first and main concern is the privacy issue…since the information is to be shared by different levels of government and different governmental bodies. There is a risk that privacy can be compromised. The more information is transferred and shared, the greater the risk of security of the information.

Nearly twenty years ago, that was Stephen Harper, then a Reform Party MP warning against the privacy implications of an electronic voter registry and the fear that information sharing within government raised significant privacy concerns. Today, there is a very different Stephen Harper, who as Prime Minister is fast-tracking a bill that eviscerates privacy protections within the public sector and is even blocking the Privacy Commissioner of Canada from appearing as a witness at the committee studying the bill.  Much of the focus on Bill C-51 has related to oversight: the government implausibly claims that it increases oversight (it does not), the Liberals say they support the bill but would like better oversight, and much of the NDP criticism has also centered on oversight. Yet with respect to privacy and Bill C-51, lack of oversight is only a part of the problem.

Last month, I wrote about the disastrous privacy consequences of the bill. The focal point was Bill C-51′s Security of Canada Information Sharing Act (SCISA), a bill within the bill, that goes far further than sharing information related to terrorist activity. It does so in three simple steps. First, the bill permits information sharing across government for an incredibly wide range of purposes, most of which have nothing to do with terrorism. The government has tried to justify the provisions on the grounds that Canadians would support sharing information for national security purposes, but the bill allows sharing for reasons that would surprise and disturb most Canadians. Second, the scope of sharing is remarkably broad, covering 17 government institutions with the prospect of cabinet expansion to other departments as well as further disclosure “to any person, for any purpose.” Third, oversight is indeed a problem as the Privacy Act is already outdated and effectively neutered by the bill.

Professors Craig Forcese and Kent Roach offer a detailed examination of the privacy implications of the massive expansion of government sharing of information. In recent weeks, all privacy commissioners from across the country have spoken out. For example, Privacy Commissioner of Canada Daniel Therrien, appointed by the government less than a year ago and described as an expert by Prime Minister Harper, rightly slams the bill:

the scale of information sharing being proposed is unprecedented, the scope of the new powers conferred by the Act is excessive, particularly as these powers affect ordinary Canadians, and the safeguards protecting against unreasonable loss of privacy are seriously deficient.  While the potential to know virtually everything about everyone may well identify some new threats, the loss of privacy is clearly excessive.  All Canadians would be caught in this web.

The end result?

As a result of SCISA, 17 government institutions involved in national security would have virtually limitless powers to monitor and, with the assistance of Big Data analytics, to profile ordinary Canadians, with a view to identifying security threats among them. In a country governed by the rule of law, it should not be left for national security agencies to determine the limits of their powers. Generally, the law should prescribe clear and reasonable standards for the sharing, collection, use and retention of personal information, and compliance with these standards should be subject to independent and effective review mechanisms, including the courts.

The Privacy Commissioner – who the government is now blocking from appearing before the committee studying the bill – offers many recommended reforms that would address overbroad sharing and build in much-needed oversight and safeguards.

All provincial privacy commissioners have offered a similar analysis, jointly calling on the government to withdraw the information sharing aspects of the bill. They also warn of routine surveillance of large portions of the population:

It could be used to  authorize, in effect, surveillance across governments in Canada, and abroad, for virtually unlimited purposes. Such a state of affairs would be inconsistent with the rule of law in our democratic state and contrary to the expectations of Canadians.

David Flaherty’s examination of the history of the Privacy Act in Canada emphasized the weakness of the law well before Bill C-51. He noted that it is already regarded as “highly inadequate for the needs of the 21st century.” Yet rather than address decades-old issues with the Privacy Act, the government is proposing to eviscerate it by opening the door to widespread sharing of information across government departments and beyond with few limits or safeguards. Indeed, Bill C-51′s information sharing provisions likely represent the most significant reduction in public sector privacy protection in Canadian history.

The post Why The Anti-Terrorism Bill is Really an Anti-Privacy Bill: Bill C-51′s Evisceration of Privacy Protection appeared first on Michael Geist.

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