Feed aggregator

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.

The post Ontario Provincial Police Recommend Ending Anonymity on the Internet appeared first on Michael Geist.

librarians and books in WWI

Fair Duty by Meera Nair - Sun, 2014/11/09 - 22:42

Books in the Trenches – drawn by Edgar Wright

The book is not a history, nor an official report of results accomplished; but, as far as I have been able to make it, a human-interest story of what books and reading have meant to the morale of the army and to the individual soldier and sailor in helping them to win the war and preparing them for their return to civil life (p. viii).

 

So wrote Theodore Wesley Koch (1871-1941), scholar and librarian (last featured here), in Books in the War – the Romance of Library War Service.

Posted to London in 1917 by the Librarian of Congress, Koch became aware of British efforts to supply their soldiers with books, “in camp, trench and hospital.” By the time Koch returned, the United States had entered the war and Koch was asked to assist in the promotion of Library War Service. His chronicle of the war years was published in 1919; sadly, only a few printed copies remain in circulation. But thanks to the provision of original books from Harvard University, University of California and University of Wisconsin, digital replicas are available for the benefit of all via Internet Archive and HathiTrust Digital Library.

The initiative to provide books to the fighting forces, apparently brought out the best in people. The preliminary appeal for funding had been via private subscriptions – a one million dollar goal was quickly exceeded with nearly $2 million raised. Publishing houses joined the effort: “… discounts of from forty-five to fifty percent were not uncommon (p.10).” And some university presses and correspondence schools donated generously from their own inventories.

If there was any doubt of the value of books to soldiers, it was dispelled immediately following the launch of the libraries. Established at training bases, front line units, hospitals, convalescent homes and prisoner-of-war camps, and staffed by librarians (many of whom were volunteers), the libraries were much needed and much loved. Drawing upon original letters, reports and conversations, Koch meticulously described the impact made by the availability of reading material. His research was extensive. British sources included details of library programs for colonial troops and Koch gave the full extent of the reach of library books in World War I.

The outpouring of the soldiers’ gratitude fills many pages of Koch’s work; choosing a favorite thank-you is difficult. But one anecdote remains prominent for me:

‘Please send us some books. We ain’t got no books at all. We are regulars and get just as lonesome as national guards.’ This was the appeal sent by a private from a small camp to a public librarian in the East. Into the first of several shipments the thoughtful-librarian slipped a supply of candy and tobacco. The response was immediate. ‘If you ever done good to a man you done good to me,’ wrote the soldier, ‘but please don’t waste no more space for eats. Just send the books.’ (p.23).

The span of reading material provided to the men was vast. That fiction would be in high demand was expected, but many requests came in for vocational training material as soldiers endeavored to maintain the knowledge and skills necessary for their civilian trades. So too were requests for material that would aid a soldier’s realm of duty. Koch gave the details of a request from a private in the Engineers’ Corps of Camp Devon:

[He] asked for books which would explain the psychology of camouflage. He was something of an artist and had been successful with colour photography.  … Material was found for him and he succeeded in hiding guns so well with paint that he deceived his own captain (p.31).

But beyond technical matters, also desired were books of poetry, literature, biography, mathematics treatises, and, maps and histories of the regions where soldiers were posted. Newspapers and magazines were no less appreciated by men far removed in space and time from life back home. And, given the diversity of cultures among the soldiers, materials were needed in Arabic, French, Greek, Hebrew, Italian, Russian, Spanish and Yiddish, just to name a few of the languages spoken. It is no exaggeration to say that most soldiers emerged from World War I more well-read or better educated than when they entered.

The extent to which education was promoted through the libraries and librarians ranged from instruction for men whose background had not included any schooling, and hence were illiterate, to formal programs of study. A Canadian higher education venture came in for special mention from Koch:

An interesting educational experiment was carried on at Witley Camp, occupied by some of the Canadian forces in England. There the library hut of the Y.M.C.A. and the three adjacent huts were handed over by the authorities for educational purposes and became the pioneer college of the “Canadian Khaki University.” .. Credits were given for work properly done in English, French, the classics, mathematics, and agriculture. .. Examinations were held and certificates given, and men were helped to complete an interrupted academic course and to prepare themselves for satisfactory positions after the war (p.55).

Perhaps most thought-provoking among Koch’s accounts are those concerning the supply of books for prisoners-of-war. The value of books was commonly held on both sides of the Great War. Within camps, prisoners would organize themselves into teaching groups; professional and learned men of civilian days became teachers for their fellow prisoners. Koch wrote that “hundreds of schools were maintained in the prison-pens of the contending armies by the American Y.M.C.A;” the ensuing demand for thousands of volumes was met by the American Library Association. “What this meant to the prisoners in the camps cannot be overestimated; to all it meant hope and joy, to some perhaps even life and sanity (p.266).”

The Y.M.C.A’s operation reached far beyond Western Europe. A secretary writing from Siberia, indicated that the German and Austrian prisoners spent a great deal of time in study. The difficulty was that most of the books available were only in Russian. While prisoners who had a general knowledge of Russian could translate for others, eventually “thousands of German books arrived for the prisoners and so enabled many of the advanced students to continue studies interrupted by war (p.267).”

Allied forces were also recipients of bibliophile generosity. Among those stories, Koch includes the experiences of Canadian Lieutenant J.H. Douglas. His time as a prisoner of war began in a German hospital:

“Lieutenant Douglas exchanged lessons in English for instruction in French with a French captain in the hospital. They managed to have textbooks bought for them in the city and did serious work for two hours every day … [The] knowledge of French proved of great value to Lieutenant Douglas later when he was transferred to Switzerland, where he and some of his fellow prisoners were allowed to register at the University of Lausanne and took courses in engineering and French literature (p.273-274).”

World War I is not known to stand out on the historical stage for its humanity; but that some was found courtesy of librarians and books should not altogether surprise us. Koch’s work is exemplary and its digital existence, replete with all the original images, help with the quest, lest we forget.


The CCTS Report on Wireless Code Violations: When Is Data on a Data Stick an “Add On”?

Michael Geist Law RSS Feed - Wed, 2014/11/05 - 09:11

The Commissioner for Complaints for Telecommunications Services released his annual report yesterday resulting in a wide range of interpretations with some citing improved customer service due to an overall decline in complaints, others focusing on declining customer service owing to an increase in complaints from misleading contractual terms, and yet others pointing to the CRTC Wireless Code as the reason behind the overall decline in complaints.

Despite some improvement in service, the most notable aspect of the report is a review of compliance with the wireless code. With the code now fully operational, there is simply no excuse for carrier non-compliance. Yet the data suggests that there are numerous confirmed breaches. Bell is easily the most notable company when it comes to failure to comply with the code: when you combine Bell Canada, Virgin Mobile (which it owns), and Northern Tel (which it now also owns), 2/3 of the confirmed breaches all come from the same source. In other words, every few weeks, Bell Canada or one of its companies had a confirmed breach of the wireless code.

Moreover, some of the CCTS case studies are astonishing for the reluctance of the carriers to address relatively minor customer concerns or by the adoption of clearly untenable positions.  For example, the report cites a customer who subscribed to an unlimited data package for a wireless data stick. The carrier switched the customer to a 10 GB usage cap without obtaining express consent. When confronted on the issue, carrier argued that the data plan was not a “key term and condition” in the contract but rather an “add on.” As the CCTS notes, “we found this odd since the customer was using a data stick and the only service he required for this purpose was data.”

The report also highlights how some carriers are still reluctant to unlock devices (as required by the wireless code). One case study notes that a carrier refused to unlock a device, arguing that the customer was not subject to the wireless code. The CCTS ruled in favour of the customer and the carrier ultimately provided an unlock code. From a customer service perspective, however, it is hard to understand why a carrier would force a consumer to complain to the CCTS in order to unlock their phone. Complaints may be declining, but the CCTS report makes it clear that there is still room for improvement.

The post The CCTS Report on Wireless Code Violations: When Is Data on a Data Stick an “Add On”? appeared first on Michael Geist.

UK launch of In Real Life at Orbital Comics, London, Nov 12


I've just come back to the UK from my US tour for In Real Life, the New York Times bestselling graphic novel Jen Wang and I made; I'll be launching it in London at the incomparable Orbital Comics, near Leicester Square, on the evening of Weds, 12 Nov.

The event is free, and I'll be giving a short talk on science fiction and its relationship to the future, the present, politics and society called "Predicting the present: Science Fiction as a lens for focusing on today."

I hope you'll come -- and even if you can't make it, you can get a special copy of the now-sold-out first printing of In Real Life from Orbital with a custom, numbered bookplate signed by both Jen and me.

Orbital Comics London | Predicting the present: Science Fiction as a lens for focusing on today – A talk by Cory Doctorow

Why the Digital Privacy Act Will Expand Personal Information Disclosure Without Court Oversight

Michael Geist Law RSS Feed - Tue, 2014/11/04 - 10:36

My column this week on warrantless access to personal information under Canadian law noted that Bill S-4, the Digital Privacy Act, will expand the likelihood warrantless disclosures between private organizations. As I posted recently:

Bill S-4 proposes that:

“an organization may disclose personal information without the knowledge or consent of the individual… if the disclosure is made to another organization and is reasonable for the purposes of investigating a breach of an agreement or a contravention of the laws of Canada or a province that has been, is being or is about to be committed and it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the investigation;

Unpack the legalese and you find that organizations will be permitted to disclose personal information without consent (and without a court order) to any organization that is investigating a contractual breach or possible violation of any law. This applies both past breaches or violations as well as potential future violations. Moreover, the disclosure occurs in secret without the knowledge of the affected person (who therefore cannot challenge the disclosure since they are not aware it is happening).

Yet despite the plain language of the provision and the concerns from the Privacy Commissioner of Canada, Industry Minister James Moore’s office continues to insist that the concerns are unfounded. In response to the column, Jake Enwright, Moore’s press secretary responded with a tweet that the concerns were “false.”

Enwright Tweet https://twitter.com/JakeREnwright/status/528566471623204864?cn=cmVwbHk%3D

I debunked many of the government claims on S-4 in this post. With respect to Enwright’s comment, it bears repeating that the Privacy Commissioner of Canada has stated:

we believe that the grounds for disclosing to another organization are overly broad and need to be circumscribed, for example, by defining or limiting the types of activities for which the personal information could be used

As for the impact of S-4 on warrantless disclosures, the bill plainly expands the ability of organizations to voluntarily disclose personal information without a warrant or court oversight. While some organizations will decline to voluntarily disclose such information, when combined with Bill C-13′s grant of full immunity for voluntary disclosures, it seems likely that others will provide subscriber information without a warrant or court oversight.  That will lead to an increase in warrantless disclosures. Simply put, government claims that such concerns are false do not stand up to even mild scrutiny.

The post Why the Digital Privacy Act Will Expand Personal Information Disclosure Without Court Oversight appeared first on Michael Geist.

SFLC releases GPL Compliance Guide second edition

SFLC News Releases - Mon, 2014/11/03 - 13:03
SFLC releases GPL Compliance Guide second edition

Warrantless Access to Subscriber Information: Has the Tide Turned on Canada’s Privacy Embarrassment?

Michael Geist Law RSS Feed - Mon, 2014/11/03 - 10:45

In a year in which privacy issues have captured near weekly headlines, one concern stands out: warrantless access to Internet and telecom subscriber information. From revelations that telecom companies receive over a million requests each year to the Supreme Court of Canada’s landmark decision affirming that there is a reasonable expectation of privacy in subscriber information, longstanding law enforcement and telecom company practices have been placed under the microscope for the first time.

Last week, the Privacy Commissioner of Canada released a report that shed further light on the law enforcement side of warrantless disclosure requests, raising disturbing questions about the lack of record keeping and politically motivated efforts to drum up data on the issue.

My weekly technology law column (Toronto Star version, homepage version) notes that the Office of the Privacy Commissioner of Canada notified the Royal Canadian Mounted Police last October that it was planning to conduct preliminary investigative work on the collection of warrantless subscriber information from telecom companies. The plan was to assess RCMP policies and to determine the frequency and justification for warrantless requests.

Despite interviewing dozens of personnel, investigators were unable to obtain specific numbers as the RCMP simply did not compile the requested information. When asked why the information was not collected, law enforcement officials noted that its information management system was never designed to capture access requests.

While that may help explain the absence of data, investigators also found that the RCMP issued an internal memorandum in 2010 instructing officers to begin collecting such information. Why the change in approach?

It would appear that the new policy was directly linked to lawful access legislation that was facing public criticism over provisions that would have required telecom and Internet companies to disclose subscriber information without a warrant (the law at the time permitted voluntary disclosure but left discretion over whether to disclose to the telecom or Internet provider). Critics of the lawful access bill noted that there was little evidence that mandated disclosure was needed. In response, the RCMP attempted to pull together the missing data, but later abandoned the effort when the lawful access bill died on the order paper.

When combined with non-transparent telecom provider policies and government legislative initiatives seeking to expand disclosure, the RCMP revelations should give all Canadians concerned with their informational privacy pause. We now know that entering this year, law enforcement and government departments were requesting access to subscriber information without a warrant over a hundred thousand times every month. We also know that telecom companies were keeping their responses to the requests secret, that law enforcement was not tracking its access requests, and that the government was determined to expand the system by encouraging voluntary disclosure of personal information through a pair of bills that are still before Parliament.

Despite the sorry state of subscriber privacy at the start of 2014, the situation has improved in recent months. Pressure on the telecom companies to offer greater transparency on their practices has led both Rogers and Telus to regularly disclose aggregated data on subscriber requests. Moreover, the Supreme Court of Canada’s Spencer decision confirmed that there is a reasonable expectation of privacy in telecom and Internet subscriber information.

Those are positive steps, yet at least three major issues remain unresolved. First, there are still some telecom companies that have not issued transparency reports, most notably Bell Canada, the country’s largest telecom provider.

Second, the RCMP remains somewhat coy about how it plans to address warrantless disclosure requests in the future. As part of the Privacy Commissioner of Canada investigation, it undertook only to study mechanisms for reporting requests. Potential recommendations are not due until April 2015.

Third, the government remains committed to encouraging voluntary warrantless disclosure of subscriber information. Justice Minister Peter MacKay’s Bill C-13, which is now at the Senate, grants full civil and criminal immunity for organizations that voluntarily disclose personal information to law enforcement, while Industry Minister James Moore’s Bill S-4, which will be studied later this month by the House of Commons Industry Committee, expands voluntary warrantless disclosure between private sector organizations.

The post Warrantless Access to Subscriber Information: Has the Tide Turned on Canada’s Privacy Embarrassment? appeared first on Michael Geist.

Warrantless Access to Subscriber Information: Has the Tide Turned On Canada’s Privacy Embarrassment?

Michael Geist Law RSS Feed - Mon, 2014/11/03 - 10:27

Appeared in the Toronto Star on November 1, 2014 as Had the Tide Turned on Canada’s Privacy Embarrassment

In a year in which privacy issues have captured near weekly headlines, one concern stands out: warrantless access to Internet and telecom subscriber information. From revelations that telecom companies receive over a million requests each year to the Supreme Court of Canada’s landmark decision affirming that there is a reasonable expectation of privacy in subscriber information, longstanding law enforcement and telecom company practices have been placed under the microscope for the first time.

Last week, the Privacy Commissioner of Canada released a report that shed further light on the law enforcement side of warrantless disclosure requests, raising disturbing questions about the lack of record keeping and politically motivated efforts to drum up data on the issue.

The Office of the Privacy Commissioner of Canada notified the Royal Canadian Mounted Police last October that it was planning to conduct preliminary investigative work on the collection of warrantless subscriber information from telecom companies. The plan was to assess RCMP policies and to determine the frequency and justification for warrantless requests.

Despite interviewing dozens of personnel, investigators were unable to obtain specific numbers as the RCMP simply did not compile the requested information. When asked why the information was not collected, law enforcement officials noted that its information management system was never designed to capture access requests.

While that may help explain the absence of data, investigators also found that the RCMP issued an internal memorandum in 2010 instructing officers to begin collecting such information. Why the change in approach?

It would appear that the new policy was directly linked to lawful access legislation that was facing public criticism over provisions that would have required telecom and Internet companies to disclose subscriber information without a warrant (the law at the time permitted voluntary disclosure but left discretion over whether to disclose to the telecom or Internet provider). Critics of the lawful access bill noted that there was little evidence that mandated disclosure was needed. In response, the RCMP attempted to pull together the missing data, but later abandoned the effort when the lawful access bill died on the order paper.

When combined with non-transparent telecom provider policies and government legislative initiatives seeking to expand disclosure, the RCMP revelations should give all Canadians concerned with their informational privacy pause. We now know that entering this year, law enforcement and government departments were requesting access to subscriber information without a warrant over a hundred thousand times every month. We also know that telecom companies were keeping their responses to the requests secret, that law enforcement was not tracking its access requests, and that the government was determined to expand the system by encouraging voluntary disclosure of personal information through a pair of bills that are still before Parliament.

Despite the sorry state of subscriber privacy at the start of 2014, the situation has improved in recent months. Pressure on the telecom companies to offer greater transparency on their practices has led both Rogers and Telus to regularly disclose aggregated data on subscriber requests. Moreover, the Supreme Court of Canada’s Spencer decision confirmed that there is a reasonable expectation of privacy in telecom and Internet subscriber information.

Those are positive steps, yet at least three major issues remain unresolved. First, there are still some telecom companies that have not issued transparency reports, most notably Bell Canada, the country’s largest telecom provider.

Second, the RCMP remains somewhat coy about how it plans to address warrantless disclosure requests in the future. As part of the Privacy Commissioner of Canada investigation, it undertook only to study mechanisms for reporting requests. Potential recommendations are not due until April 2015.

Third, the government remains committed to encouraging voluntary warrantless disclosure of subscriber information. Justice Minister Peter MacKay’s Bill C-13, which is now at the Senate, grants full civil and criminal immunity for organizations that voluntarily disclose personal information to law enforcement, while Industry Minister James Moore’s Bill S-4, which will be studied later this month by the House of Commons Industry Committee, expands voluntary warrantless disclosure between private sector organizations.

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 Warrantless Access to Subscriber Information: Has the Tide Turned On Canada’s Privacy Embarrassment? appeared first on Michael Geist.

A technological approach to better living, for D.C. and beyond

Freedom to Tinker - Mon, 2014/11/03 - 07:00
Washington, D.C., could be a leader in the United States — and worldwide — in using technology to improve the lives of its residents and visitors. As a rapidly growing city with a diverse and highly educated population, the District is a leader in law, education, tourism and, of course, government. With this mass of […]

London, Tue night: Biella Coleman and I talk about “Hackers and Hoaxers: Inside Anonymous”


Anthropologist Gabriella Coleman (author of the brilliant Coding Freedom) spent years embedded with Anonymous and has written an indispensable account of the Anonymous phenomenon.

I'm going to join Biella for a live appearance at Foyles Books in central London on Tuesday night at 7PM, in an event moderated by James Bridle. Tickets are £5 , and there are still some left.

There is no better way to understand Anonymous than through an anthropological lens, because the most significant thing about them is not the politics and not the hacking, but the way they are (and are not) organized in their campaigns of "ultracoordinated motherfuckery." Coleman's book is a perfect mix of scholarly and narrative, with all the excitement of traitors and dawn police raids combined with a sensitive and nuanced understanding of the Anonymous phenomenon.

Hackers and Hoaxers: Inside Anonymous

Canada’s New “Anti-Terrorism” Bill: Responding to the Courts, Not the Attacks

Michael Geist Law RSS Feed - Tue, 2014/10/28 - 08:30

The government yesterday introduced Bill C-44, the Protection of Canada from Terrorists Act. While some were expecting significant new surveillance, decreased warrant thresholds, and detention measures, this bill is a response to several court decisions, not to the attacks last week in Ottawa and Quebec. A second bill – which might use the U.K. legislative response to terror attacks as a model – is a future possibility, but policy decisions, cabinet approval, legal drafting, and constitutional reviews take time.

Bill C-44, which was to have been tabled on the day of the Ottawa attack, responds to two key issues involving CSIS, Canada’s domestic intelligence agency.  The first involves a federal court case from late last year in which Justice Richard Mosley, a federal court judge, issued a stinging rebuke to Canada’s intelligence agencies (CSEC and CSIS) and the Justice Department, ruling that they misled the court when they applied for warrants to permit the interception of electronic communications. Mosley’s concern stemmed from warrants involving two individuals that were issued in 2009 permitting the interception of communications both in Canada and abroad using Canadian equipment. At the time, the Canadian intelligence agencies did not disclose that they might ask their foreign counterparts (namely the “five eyes” partners in the U.S., U.K., Australia, and New Zealand) to intercept the foreign communications.

The federal government appealed the ruling, but the appellate court decision has not been publicly revealed. It seems likely that the government lost, since Bill C-44 seeks address the issue by removing territorial restrictions on CSIS. The bill includes clauses that state that CSIS may conduct investigations within or outside Canada and seek a warrant to allow for foreign investigations. Moreover, it opens the door to warrants that apply outside the country regardless of the law in Canada or elsewhere. It provides:

Without regard to any other law, including that of any foreign state, a judge may, in a warrant issued under subsection (3), authorize activities outside Canada to enable the Service to investigate a threat to the security of Canada.

That is remarkably broad provision as it allows the federal court to issue warrants that violate the laws of other countries, including foreign privacy laws.

The second issue involves the anonymity of CSIS human sources.  Earlier this year, the Supreme Court of Canada confirmed that CSIS human sources are not protected by class privilege. That decision upheld an earlier Federal Court of Appeal decision which arrived at a similar conclusion. The case stemmed from a 2008 security certificate naming Mohamed Harkat as a person inadmissable to Canada on national security grounds. Bill C-44 reverses the court rulings by granting anonymity to CSIS sources (though it adds a limitation where disclosure “is essential to establish the accused’s innonence”).

Bill C-44 may reverse the courts on both issues, but what it does not do is address ongoing concerns regarding the accountability and transparency of Canada’s security intelligence agencies. Indeed, the Mosley case in particular raised troubling questions about the adequacy of oversight over Canada’s surveillance activities. Rather than address those concerns, the government has instead simply reversed the court rulings through legislative reform, leaving the current inadequate oversight system untouched.

The post Canada’s New “Anti-Terrorism” Bill: Responding to the Courts, Not the Attacks appeared first on Michael Geist.

Bitcoin mining is NP-hard

Freedom to Tinker - Mon, 2014/10/27 - 14:37
This post is (mostly) a theoretical curiosity, but a discussion last week at CITP during our new course on Bitcoin led us to realize that being an optimal Bitcoin miner is in fact NP-hard. NP-hardness is a complexity classification used in computer science to describe many optimization problems for which we believe there is no algorithm […]

Responding to the Attacks: Why We Need to Resist Quick-Fix Anti-Terrorism Measures

Michael Geist Law RSS Feed - Mon, 2014/10/27 - 09:53

Two shocking terror attacks on Canadian soil, one striking at the very heart of the Canadian parliament buildings and both leaving behind dead soldiers. Office buildings, shopping centres, and classrooms placed under lockdown for hours with many confronting violence first hand that is rarely associated with Canada.

Last week’s terror events will leave many searching for answers and seeking assurances from political and security leaders that they will take steps to prevent it from happening again. There will be an obvious temptation to look to the law to “fix” the issue, and if the past is a guide, stronger anti-terror legislation and warnings that Canadians may need to surrender more of their privacy and civil liberties in the name of greater security will soon follow.

My weekly technology law column (Toronto Star version, homepage version) notes that if there are legal solutions that would help foster better security, they should unquestionably be considered. Yet Canada should proceed with caution and recognize that past experience suggests that the unintended consequences that may arise from poorly analyzed legislation may do more harm than good.

The Canadian experience with lawful access reform provides an instructive lesson in how knee-jerk legislative responses rarely provide the desired solutions. Lawful access bills began appearing soon after the events of 9-11 with the initial bills envisioning the creation of a massive surveillance infrastructure. It featured provisions mandating that Internet providers disclose detailed personal information on subscribers and requiring them to install extensive surveillance equipment on their networks.

The public expressed disapproval with the proposals, raising serious questions about the lack of evidence to support claims the legislation would address actual law enforcement problems, the associated costs, and the implications for striking a reasonable balance between security needs and privacy safeguards.

Lawful access has remained a hot button issue, but successive bills have gradually retreated from those early plans. Bill C-13, the latest lawful access bill (labelled as cyber-bullying legislation), has generated well-deserved criticism, yet many of the most invasive provisions have been removed. As the bill heads for Senate review, there is still room for improvement, but even the fiercest critic must acknowledge that many of the biggest privacy concerns have been addressed.

New anti-terrorism legislation is next on the legislative docket. The forthcoming bill is ostensibly a response to last year’s federal court decision that rebuked Canada’s intelligence agencies (CSEC and CSIS) and the Justice Department for misleading the court when they applied for warrants to permit the interception of electronic communications.

Justice Mosley, a former official with the Justice Department who was involved with the creation of the Anti-Terrorism Act, expressed concern about warrants involving two individuals that were issued in 2009 permitting the interception of communications both in Canada and abroad using Canadian equipment. At the time, the Canadian intelligence agencies did not disclose that they might ask their foreign counterparts (namely the “five eyes” partners in the U.S., U.K., Australia, and New Zealand) to intercept the foreign communications.

The government appealed Mosley’s decision, but the Federal Court of Appeal ruling has not been publicly released. Many observers suspect that the government lost the appeal and plans to use legislative changes to address issues related to interceptions and information sharing.

In the aftermath of the Canadian terror attacks, there will likely be calls to go even further, granting police and intelligence agencies more powers. But before we look to the law to address our security concerns, a better understanding of the possible security and intelligence failures that may have contributed to the terror attacks is needed. If agencies are not effectively using their current powers, more powers will do little to remedy the current situation.

Moreover, legislative reforms must also address Canada’s weak oversight and accountability mechanisms. One of the glaring problems with Canada’s current system is the lack of oversight: limited Parliamentary review, long delays in issuing reports from the CSEC Commissioner, and sporadic public revelations about the operations of Canada’s security and intelligence agencies.

Notwithstanding the urge to “do something”, Canada should be cautious about looking to more laws as the primary means to prevent a repeat of this week’s tragic events and ensure that any reforms that emerge be accompanied by effective oversight and accountability.

The post Responding to the Attacks: Why We Need to Resist Quick-Fix Anti-Terrorism Measures appeared first on Michael Geist.

Responding to the Attacks: Why We Need to Resist Quick-Fix Anti-Terrorism Measures

Michael Geist Law RSS Feed - Mon, 2014/10/27 - 09:29

Appeared in the Toronto Star on October 25, 2014 as Why We Need To Resist Quick-Fix Anti-Terrorism Measures

Two shocking terror attacks on Canadian soil, one striking at the very heart of the Canadian parliament buildings and both leaving behind dead soldiers. Office buildings, shopping centres, and classrooms placed under lockdown for hours with many confronting violence first hand that is rarely associated with Canada.

This week’s terror events will leave many searching for answers and seeking assurances from political and security leaders that they will take steps to prevent it from happening again. There will be an obvious temptation to look to the law to “fix” the issue, and if the past is a guide, stronger anti-terror legislation and warnings that Canadians may need to surrender more of their privacy and civil liberties in the name of greater security will soon follow.

If there are legal solutions that would help foster better security, they should unquestionably be considered. Yet Canada should proceed with caution and recognize that past experience suggests that the unintended consequences that may arise from poorly analyzed legislation may do more harm than good.

The Canadian experience with lawful access reform provides an instructive lesson in how knee-jerk legislative responses rarely provide the desired solutions. Lawful access bills began appearing soon after the events of 9-11 with the initial bills envisioning the creation of a massive surveillance infrastructure. It featured provisions mandating that Internet providers disclose detailed personal information on subscribers and requiring them to install extensive surveillance equipment on their networks.

The public expressed disapproval with the proposals, raising serious questions about the lack of evidence to support claims the legislation would address actual law enforcement problems, the associated costs, and the implications for striking a reasonable balance between security needs and privacy safeguards.

Lawful access has remained a hot button issue, but successive bills have gradually retreated from those early plans. Bill C-13, the latest lawful access bill (labelled as cyber-bullying legislation), has generated well-deserved criticism, yet many of the most invasive provisions have been removed. As the bill heads for Senate review, there is still room for improvement, but even the fiercest critic must acknowledge that many of the biggest privacy concerns have been addressed.

New anti-terrorism legislation is next on the legislative docket. The forthcoming bill is ostensibly a response to last year’s federal court decision that rebuked Canada’s intelligence agencies (CSEC and CSIS) and the Justice Department for misleading the court when they applied for warrants to permit the interception of electronic communications.

Justice Mosley, a former official with the Justice Department who was involved with the creation of the Anti-Terrorism Act, expressed concern about warrants involving two individuals that were issued in 2009 permitting the interception of communications both in Canada and abroad using Canadian equipment. At the time, the Canadian intelligence agencies did not disclose that they might ask their foreign counterparts (namely the “five eyes” partners in the U.S., U.K., Australia, and New Zealand) to intercept the foreign communications.

The government appealed Mosley’s decision, but the Federal Court of Appeal ruling has not been publicly released. Many observers suspect that the government lost the appeal and plans to use legislative changes to address issues related to interceptions and information sharing.

In the aftermath of the Canadian terror attacks, there will likely be calls to go even further, granting police and intelligence agencies more powers. But before we look to the law to address our security concerns, a better understanding of the possible security and intelligence failures that may have contributed to the terror attacks is needed. If agencies are not effectively using their current powers, more powers will do little to remedy the current situation.

Moreover, legislative reforms must also address Canada’s weak oversight and accountability mechanisms. One of the glaring problems with Canada’s current system is the lack of oversight: limited Parliamentary review, long delays in issuing reports from the CSEC Commissioner, and sporadic public revelations about the operations of Canada’s security and intelligence agencies.

Notwithstanding the urge to “do something”, Canada should be cautious about looking to more laws as the primary means to prevent a repeat of this week’s tragic events and ensure that any reforms that emerge be accompanied by effective oversight and accountability.

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 Responding to the Attacks: Why We Need to Resist Quick-Fix Anti-Terrorism Measures appeared first on Michael Geist.

About That Copyright Exception for Political Advertising. . .Never Mind

Michael Geist Law RSS Feed - Fri, 2014/10/24 - 09:06

Earlier this month, a political storm hit in Canada when it was revealed that the government was considering including a new copyright exception for political advertising in its forthcoming omnibus budget bill. The reports sparked claims of fascism, censorship, expropriation, and more, yet as I argued, the commentary bore almost no relationship to reality. There were legitimate concerns about an exception made solely available to politicians and political parties as well as doubts about the need for such an exception given the breadth of the current fair dealing exception that already permits most uses of video clips.

Yesterday, the government tabled its omnibus budget bill, which contains changes to the Patent Act (to bring Canada into compliance with the Patent Law Treaty), effectively ban paper billing charges for telecom and broadcast services, and grant new enforcement powers to the CRTC. As for the copyright reform provision, perhaps the public outcry had an impact. It is nowhere to be found.

The post About That Copyright Exception for Political Advertising. . .Never Mind appeared first on Michael Geist.

Four Fair Use Takeaways from Cambridge University Press v. Patton

Freedom to Tinker - Thu, 2014/10/23 - 21:02
The most important copyright and educational fair use case in recent memory (mine, at least) was decided by the Eleventh Circuit Court of Appeals last week. The case, Cambridge University Press v. Patton, challenged Georgia State University’s use of e-reserves in courses offered by the university. The copyrighted works at issue were scholarly books–i.e., a […]

Interview with The Geekcast


I sat down at New York Comic-Con with Aaron from The Geekcast podcast for a long, interesting interview (MP3) on a wide variety of subjects about art, computers, games and justice!

Syndicate content