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When Consultations Count: Why the TPP is a Reminder of the Value of Speaking Out

Michael Geist Law RSS Feed - Wed, 2018/01/24 - 10:34

In June 2016, I appeared at one of the government’s public town hall meetings on the TPP.  Alongside then-International Trade Minister Chrystia Freeland (now Global Affairs minister), C.D. Howe’s Daniel Schwanen, and Unifor’s Jerry Dias, I had the chance to raise concerns with the TPP’s IP and e-commerce provisions and then hear from dozens of people who raised a wide range of issues. The town hall was part of a broad public consultation that was frequently derided by critics as a stalling tactic, yet the impact of the consultation was felt with yesterday’s announcement of a deal on a slightly re-worked TPP that includes suspension of many of the most controversial IP provisions.

The consultation ran for months, but data released under the Access to Information Act from the period from November 2015 to June 2016 indicate that the government received over 18,000 emails during that period alone, the majority of which were sent through OpenMedia and emphasized concerns with intellectual property, e-commerce, and ISDS. Of the remaining emails, the top two concerns were ISDS and intellectual property.

It does not appear that the inclusion of IP and ISDS rules on the list of suspended TPP provisions is coincidental. Prime Minister Justin Trudeau cited changes to the IP provisions in his Davos speech as one example of how the government worked to make the agreement more progressive, a positive signal for future copyright reforms given the implicit acknowledgement of the problems with copyright term extension and digital locks. Moreover, International Trade Minister François-Philippe Champagne specifically referenced the public feedback yesterday within the context of the IP changes to the TPP, noting the “suspension of many intellectual property provisions of concern to Canadian stakeholders.” The “stakeholders” is the broader public that responded to the consultation and the statement should be viewed as an admission that the results of those efforts had an impact on government policy.

The combination of suspended provisions and the side letter addressing concerns over a less-than-complete cultural exemption demonstrate the importance of reading the fine print in trade deals and largely ignoring government talking points designed to drum up public support. The Conservative government materials on the TPP dismissed many of the concerns raised by the public. After the text was released, I wrote a 50 part blog series on the trouble with the TPP with more than a dozen posts directly focusing on provisions that are now suspended or the subject to amendment via side letters.

The Liberal government inherited a flawed agreement and even with the changes, the TPP (or CPTPP) remains a flawed deal. Indeed, in my area, there are serious problems with e-commerce chapter and its weak privacy protections and potential barriers to data localization and data transfer rules. Others have pointed to concerns with the labour provisions and the rules pertaining to the auto sector. However, it is a better deal than the one the government was stuck with on election day.

Further, there is no reason to be naive. The government likely wanted to put its own stamp on the deal and the IP provisions found a receptive audience among many other TPP countries. The cultural changes will play well politically in parts of the country. Despite insistence that the TPP and NAFTA are separate deals, the government may have also wanted to strengthen (not weaken as some have speculated) its negotiating position on NAFTA by suspending IP provisions that could yet re-appear in that agreement. It should also be noted that the government is also far from perfect on consultation given the insider access to NAFTA information it has granted to select business groups. In other words, the trade file and the TPP have considerable room for improvement.

With all that said, give credit where credit is due. The government said it wanted to hear from Canadians on the TPP and it established multiple venues for feedback. Thousands took the opportunity to speak out and some of what they said became reflected in the government’s negotiating position and the final agreement. That makes for a better deal and provides a valuable reminder that sometimes consultations count.

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Canada Successfully Stands Up For Balanced IP and Canadian Culture in TPP Deal

Michael Geist Law RSS Feed - Tue, 2018/01/23 - 10:21

While the NAFTA negotiations in Montreal were expected to be the lead trade story this week, the Trans Pacific Partnership talks in Tokyo have stolen the show with the remaining 11 countries reaching agreement on a deal that is likely to be signed in March. Canada faced intense criticism last year from some TPP partners (particularly Japan and Australia) over its demands to address concerns with the agreement. That sparked some Canadian business groups to quickly call on the government to simply cave in order to conclude a deal. Global Affairs Minister Chrystia Freeland and International Trade Minister François-Philippe Champagne rightly argued that capitulation is not a negotiating strategy and they now come away with an improved (albeit still flawed) agreement.

As I noted last year, from a strategic perspective, Canada was a late entrant to the TPP negotiations, arriving well after the basic framework had been established and several of the chapters concluded. In fact, the TPP only became a trade priority after the Harper government identified the risks of remaining on the outside of a deal that included the U.S. The decision to participate was primarily defensive with some studies projecting only marginal economic gains. With the U.S. now out of the TPP, Canada’s primary strategic objective was gone. That left a deal that offered some benefits for increased trade with Japan, but little else given that Canada already has free trade agreements with several other TPP countries such as Mexico, Chile, and Peru.

Japan emerged in recent months as the TPP’s biggest proponent and worked hard to bring the remaining countries on board. Canada took the lead on seeking amendments the TPP’s deeply problematic intellectual property chapter, where the original agreement included patent provisions that would likely increase the cost of pharmaceuticals and copyright rules that would lock down content for decades through the extension of the term of copyright beyond the standard established at international law. Indeed, the IP chapter largely reflected U.S. demands and with its exit from the TPP, an overhaul that more closely aligns the agreement to international standards was needed. Canada succeeded on that front with an agreement to suspend most of the controversial IP provisions including those involving copyright term, patent extension, biologics protection, and digital lock rules.

Despite claims from TPP supporters that the cultural exemption did not raise concerns, the Canadian government rightly concluded that the TPP provision fell far short of the standard found in other trade agreements. The culture carve outs arose from U.S. demands. With it out of the agreement, the real question was never whether the provisions could be addressed, but rather how to do so. The fix will apparently come through side letters between Canada and the remaining TPP countries, which will keep the text intact but give Canada the exemption it wanted.

The end result is an agreement that still raises concerns – the e-commerce chapter does a poor job of protecting privacy and balancing data localization requirements – but one that is improved from earlier iterations. Taking any deal over a good deal never made any sense and today’s result affirms that caving to foreign pressures is not a viable strategy as Canadian negotiators should not shy away from asserting strong demands in the national interest.

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Insider Access: Secret Advisory Groups Damage the Credibility of Canada’s NAFTA Negotiations

Michael Geist Law RSS Feed - Fri, 2018/01/12 - 09:40

The Canadian government has frequently touted its commitment to transparency and consultation with respect to its trade negotiations, citing a steady stream of open events and its receptiveness to public feedback. Indeed, since the renegotiation of NAFTA was placed back on the table, officials say they have talked to nearly 1,000 stakeholders and received more than 44,000 public submissions.

While the openness to public comment represents a notable shift in approach, my Globe and Mail op-ed reports that the government has been far less forthcoming about the creation of secret NAFTA industry advisory groups. According to documents obtained under the Access to Information Act, as of last October, members of those groups had signed 116 confidentiality and non-disclosure agreements that pave the way for access to secret information about the status of the negotiations. Those stakeholders are in addition to the dozen NAFTA Advisory Council members, most of whom have also signed the non-disclosure documents.

The industry advisory groups cover some of the negotiations’ most contentious areas, including agriculture, intellectual property, services, auto, culture, and energy. There are also groups for newer trade issues such as women’s rights, labour, and Indigenous concerns. In all, the government supports at least 12 previously undisclosed advisory groups.

The size of each advisory group varies. The government documents indicate there are at least 14 members in the services group, 12 members in the auto group, and seven in the intellectual property group. The composition of the advisory groups remains a secret, though officials acknowledge that they consist primarily of businesses and their industry associations with few independent voices and no academic experts.

Officials maintain the NDAs are needed to allow for disclosure of the state of the talks and the negotiating positions of the U.S. and Mexico delegations. While revealing Canadian positions would not be subject to confidentiality restrictions, an agreement between the three countries allows for private disclosure of the dynamics of the negotiations and specific country positions. The advisory groups are not provided with copies of the draft text, but are given sufficiently detailed information to assess the likely impact of the proposed provisions.

The willingness to disclose NAFTA negotiating details should not come as a surprise as the government undoubtedly wants to limit the possibility of unanticipated harms from the final text. Yet the entire process remains shrouded in secrecy (an official responded that the groups were not secret but no one had previously asked about them), a far cry from the promises of transparency promoted by the government. Moreover, while the number of NDA agreements and the existence of the advisory groups was revealed as part of the Access to Information request, any identifying information about which groups or individuals signed the agreements was fully redacted.

The secret two-tier approach damages the credibility of an otherwise open consultation. Encouraging Canadians to provide their views on Canada’s trade priorities makes sense given that trade has emerged as perhaps the single biggest economic issue facing the country and all Canadians have a stake in the outcome of the talks. However, the use of secret advisory groups creates an uneven playing field with some stakeholders positioned to provide better informed feedback than their competitors as well as many other interested parties and independent experts.

If the insider access approach is to continue, Global Affairs Minister Chrystia Freeland and International Trade Minister François-Philippe Champagne should move quickly to lift the veil of secrecy behind the process, openly disclosing the nature and membership of each advisory group. Moreover, the advisory groups should be expanded to include a wider diversity of voices, including badly needed independent perspectives.

The government has emphasized its willingness to engage with the U.S. on NAFTA, even if President Donald Trump chooses to start the process of walking away from the deal. Its engagement with Canadians should be similarly robust, marked by a transparent, public advisory process, a clear commitment to balanced advice, and strict limits on the creation of privileged insider access.

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adjudication by algorithm

Fair Duty by Meera Nair - Wed, 2018/01/03 - 11:33

Monday’s issue of The Globe and Mail describes new initiatives to secure better returns for the music industry when musical content is used via radio or internet. Under a joint initiative between the University of Toronto and The Society of Composers, Authors and Music Publishers of Canada (SOCAN), students are investigating how technology “… can parse through audio and video to find media using SOCAN member songs that should be paying royalties to creators and publishers.”

If a reader parses that sentence, the word “should” stands out. Merely using a SOCAN member’s song, or anyone’s song, does not automatically indicate that payment is required. While it is plausible that artificial intelligence can develop a capacity to engage in the contextual analysis required to determine whether a use is legitimate or an infringement, much will depend on the human input.

(As I write this, I recall undergraduate days and a computer science professor who was fond of saying, “garbage in, garbage out.”)

Music collectives invest in AI to better scan online content, finding songs to license them “whether they’re in the background of a cat video or an amateur singer covering Drake.” Surprisingly, no mention of fair dealing or lawful user-generated content. https://t.co/JsTsg2azJ0

— Carys Craig (@CraigCarys) January 2, 2018

In her remarks about the article Carys Craig draws on the work of Niva Elkin-Koren, who has written at length about the perils of copyright adjudication by algorithm. For instance, in Fair Use by Design (2017), Elkin-Koren argues that: “… for fair use to serve its role in the twenty-first century, the checks that it intends to create on the rights of authors must also be embedded in the design of online systems.” She reveals some disturbing findings following analysis of 10,000 removal requests sent to Google, to the conclusion that “an algorithmic regime, which is neither overseen by the public nor by any judicial entity, is extremely vulnerable to misuse.”

Misuse may be deliberate, but misuse also occurs through confusion with respect to the very nature of copyright. Too many people believe that copyright means an absolute right of control; which it never has been, nor has it ever functioned in this manner. From its implementation into statutory law (1710), copyright has been structured as a set of limited rights. But despite this 300+ year ancestry, contemporary articles rarely provide any explanation of where control begins or where control ends.

That story is told through the Copyright ActSection 3.1 states:

For the purposes of this Act, copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public …

From 3.1 we see that copyright exists only when a substantial amount of work is being reproduced. Any algorithm that deems infringement by only identifying use, has vastly overstepped its bounds. Copyright may not even have arisen, let alone finding infringement. (For more about substantial/insubstantial, see here and here.)

If a substantial reproduction has occurred, copyright owners (which may include the writers, musicians, artists, etc. that created the work) are entitled to control the use of the work, through the measures enumerated in the Copyright Act. But that control is not absolute. It is limited, not only by time (Canada maintains the life+50 copyright duration mandated by international treaty) but also by many statutory exceptions. That list begins with fair dealing:

Section 29, fair dealing “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.”

Sections 29.1 and 29.2 – which provide fair dealing for “criticism or review” and “news reporting” under conditions of attribution. Writers and publishers (perhaps those associated to national newspapers) might appreciate this exception.

(Over the last fifteen years Canada’s treatment of fair dealing has evolved into a measured, progressive exception and ensures that the system of copyright remains balanced and does not devolve purely into a means of rent-seeking. For instance, see here, here, and here.)

Canada’s jewel in the crown – S29.21 “Non-commercial user-generated content,” is more colloquially known as The MashUp Exception. With conditions (amateur creation, attribution, legitimate source material, and a consideration of market effect), creativity at its most nascent is protected as lawful activity. While the scope is vast, at the very least S29.21 seems tailor-made to protect video involving a dancing cat. (For more on 29.21, see here and here.)

Or if the musical accompaniment to the cat was unintended, the unsung heroic exception of S30.7 “Incidental Use” comes to mind:

It is not an infringement of copyright to incidentally and not deliberately (a) include a work or other subject-matter in another work or other subject-matter; or (b) do any act in relation to a work or other subject-matter that is incidentally and not deliberately included in another work or other subject-matter.

Incidental use is not limited to amateur creation, nor is it confined to any specific purpose of use. That said, it has provided Canadians with some bragging rights in a particular genre; as Howard Knopf wrote over a decade ago, “This section is the envy of American documentarians … .”

The entire list of exceptions is extensive and should be part of any algorithmic effort to pronounce judgement on use of copyrighted works. In this regard, artificial intelligence could lead to better outcomes for copyright owners and users alike, if such systems are appropriately seeded, capable of learning from existing and ongoing court decisions, and attuned to the nuance that permeates application of the law. To rephrase my former professor’s words: comprehensive information in, contextual decisions out.

Looking Back at 2017: My Top Ten Posts

Michael Geist Law RSS Feed - Thu, 2017/12/28 - 15:45

With 2018 nearly upon us, many sites are taking a moment to reflect back on the past year and the posts and issues that attracted the most attention. On my site, the top issues are easy to spot: net neutrality, privacy, copyright, website blocking and Netflix issues dominate the top ten. My top ten new posts published in 2017:

  1. As the U.S. Retreats, Canada Doubles Down on Net Neutrality
  2. Trump’s Executive Order Eliminates Privacy Act Protections for Foreigners
  3. Why Abandoning Net Neutrality in the U.S. Matters in Canada
  4. Canadian Telcos Take Aim at Kodi Addon Site With Shocking Search: True Purpose to “Destroy Livelihood of the Defendant”
  5. Bell Calls for CRTC-Backed Website Blocking System and Complete Criminalization of Copyright in NAFTA
  6. Bell Leads on Radical Proposal for CRTC-Backed Mandatory Website Blocking System
  7. Canada Revenue Agency Obtains Broad Court Order for Years of PayPal Data
  8. Netflix Canada and the Misleading Claims About “Level Playing Fields”
  9. Canadian DMCA in Action: Court Awards Massive Damages in First Major Anti-Circumvention Copyright Ruling
  10. Not Just Bell: Shaw Calls on CRTC to Support Website Blocking

Just missing the top ten were posts on wireless overage charges and the Access Copyright/York copyright trial court ruling.

It was a busy year and with the copyright review, CRTC consultation on broadcast, trade negotiations, and a myriad of other Internet issues, 2018 promises to be a critically important year for digital law and policy. Happy new year to all and thanks for reading!

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The Canadian Copyright Review in the Age of Technological Disruption

Michael Geist Law RSS Feed - Fri, 2017/12/22 - 10:30

The Canadian government launched its much-anticipated copyright review last week, asking the Standing Committee on Industry, Science and Technology to conduct a study on the issue that is likely to run for much of 2018. My Globe and Mail op-ed notes that while the timelines suggest that major changes will have to wait until after the next election, the report will be the foundation for future reforms to Canadian copyright law.

The instruction letter to the committee from Innovation, Science and Economic Development Minister Navdeep Bains and Canadian Heritage Minister Mélanie Joly points to the challenges of copyright, which invariably engages a wide range of stakeholders with differing perspectives.

Indeed, Mr. Bains and Ms. Joly note in their letter that “this diversity of viewpoints is because copyright affects a wide range of industries, works, and uses: from telecom and tech companies, to scientific institutions, and academia, from photographs, music, and books, to augmented reality content; and from museums, art galleries, and brick and mortar stores, to machine-readable data, and beyond.” Reconciling such a broad range of interests with a law that affects all Canadians is exceptionally difficult.

The letter touches on everything from compensation for artists to the public domain and open access, but the most important passage may well be the recognition that while market disruption often drives copyright reform, the law may not always be the best tool to address the current state of technology-driven change. The ministers note that many issues fall outside of the scope of the law, suggesting that efforts to use legal tools to impede changing dynamics in the marketplace may ultimately harm the very stakeholders the law is intended to assist.

In fact, the top-line issues for many of the traditional stakeholders in the copyright debate are largely grounded in the view that technological disruption requires a legislative response based on copyright law. For example, the publishers and authors have been lobbying the government for several years to roll back the rules on “fair dealing”, Canada’s version of fair use. The Supreme Court of Canada has said that fair dealing is a user’s right, which allows for the use of portion of works without the need for further permission or licence. The groups point to declining revenues from a licence offered by Access Copyright, a copyright collective, as evidence of the problem.

Yet the publishing and education sectors represent a classic case of technological disruption. Since the 2012 copyright reforms, the publication of new Canadian titles has not declined and educational spending on licensing works from publishers and authors has increased as the sector shifts from buying physical books and paying for collective licences to licensing e-books and access to massive content databases. Many universities today, including my own, licence more than a million e-books, many with perpetual licences. This means that even as some publishers and authors express concern about educational copying practices, they earn new revenues from digitally licensing their works to educational institutions.

Disruption is also a theme in music industry lobbying, which claims there is a “value gap” in the revenues earned from Internet music streaming and the value of that music. Yet a closer look at the numbers points to an industry earning record revenues from new technologies and the Internet.

The days of worrying whether consumers would pay for music are largely over with the Canadian music market growing much faster than the world average (12.8 per cent in 2016 compared with 5.9 per cent globally), streaming revenues more than doubling last year to US$127.9 million (up from US$49.82 million), the Canadian digital share of revenues of 63 per cent exceeding the global average of 50 per cent, and Canada leaping past Australia to become the sixth largest music market in the world.

Virtually every cultural sector has similar stories. Since the 2012 copyright reforms, music collective SOCAN has experienced a tenfold increase in Internet streaming revenues with growth rates of more than 100 per cent over the past year alone, but it is still calling for an extension of 20 years in the term of copyright from the current international standard of life of the author plus 50 years.

Movie theatre and overall broadcast revenues have continued to increase since 2012, but that has not stopped some in the industry from demanding new website blocking rules. Many media organizations have struggled with the transition to digital, leading to the hope that a new “link” tax could be added to copyright law that would require compensation merely for linking to a work. That approach might provide some incremental revenue, but would undermine valuable referral networks that increase website traffic and supports digital advertising earnings.

The 2012 copyright reforms ushered in a series of innovative changes including legal protection for user generated content, the notice-and-notice system for online infringement allegations which enables rights holders to educate users on the boundaries of copyright, and some of the world’s toughest anti-piracy rules. The five-year review offers the chance to take stock of those amendments and chart a course for future policies. In doing so, the committee should ensure it opens the process to all Canadians and keep the ministerial admonition on the limits of copyright law in an ever-changing disruptive marketplace very much in mind.

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Finance Committee Recommends Canadian Government Funding for Open Educational Resources

Michael Geist Law RSS Feed - Wed, 2017/12/20 - 11:16

Earlier this year, the Ontario government made a big commitment to open textbooks, investing millions of dollars to create new open texts in fields such as history, finance, politics, the environment, engineering, and the sciences. The resulting open textbook library at ECampusOntario now features hundreds of texts that are free to use for everyone. The Ontario initiative follows leadership in the open educational resource field from BC Campus and its open textbook project. The BC effort has saved students millions of dollars with adoptions by dozens of institutions putting them into use in hundreds of faculties for over 1600 courses.

While the provinces have led on open educational resources, there may now be an opening for the federal government to support the development and distribution of OERs. The Canadian Alliance of Student Associations appeared before the Standing Committee on Finance as part of its budget consultations and specifically recommended that:

the Tri-Agencies [SSHRC, NSERC, CIHR] create a pilot grant program, at an estimated $8 million, to support the development and distribution of OERs.

CASA noted the cost savings from OER along with innovative learning benefits that come from open education. The Finance Committee agreed, directly adopting the CASA’s recommendation:

Recommendation 19
Support a pilot grant through the Social Sciences and Humanities Research Council of Canada, the Natural Sciences and Engineering Research Council of Canada and the Canadian Institutes of Health Research that would provide students and faculty with an incentive to develop open educational resources.

The introduction of federal OER commitment would be welcome development, both by signalling its importance and by paving the way for more open materials that could be used by students and teachers from coast-to-coast-to-coast.

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Fostering a Vibrant Canadian Programming Market: My CRTC Submission Focusing on Net Neutrality and Rejecting New Taxes, Fees or Content Blocking

Michael Geist Law RSS Feed - Tue, 2017/12/19 - 10:37

Last month I posted on the responses to the CRTC’s consultation on the future of Canadian programming, which yielded over 200 submissions that envision extensive Internet regulation and taxation. The CRTC has published a reference document for the second stage of its consultation that runs until January 31, 2018.  My full submission for the first stage of the consultation can be found here.

I argue that the existing Canadian system is working well with significant new foreign investment in Canadian programming replacing declining investment from traditional sources such as broadcasters. Moreover, the audio market is experiencing remarkable growth with Internet streaming revenues in Canada far outpacing that found in many other countries.

With the market enjoying great success, I argue that the appropriate regulatory response should emphasize the ongoing shift to a digital market for audio and video programming by supporting regulations that foster increased global competitiveness of Canadian services and creators. These includes prioritizing affordable Internet access, a strong affirmation of net neutrality, the removal of outdated regulations that foster a “walled garden” style approach in Canada, and a rejection of new taxes, fees or content blocking schemes. The full submission is available here.

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Canadian Position on Data Localization Rules in Trade Deals Revealed: Protection for Government Data Only

Michael Geist Law RSS Feed - Mon, 2017/12/18 - 13:22

Data localization rules, which require data to be stored locally, have emerged as an increasingly popular legal method for providing some additional assurances about the privacy protection for personal information. Although heavily criticized by those who fear that it harms the free flow of information, requirements that personal information be stored within the local jurisdiction is an unsurprising reaction to concerns about the lost privacy protections if the data is stored elsewhere. Data localization requirements are popping up around the world with European requirements in countries such as Germany, Russia, and Greece; Asian requirements in Taiwan, Vietnam, and Malaysia; Australian requirements for health records, and Latin America requirements in Brazil. Canada has not been immune to the rules either with both British Columbia and Nova Scotia creating localization requirements for government data.

Given that data often ends up in the United States, restrictions on data localization requirements have emerged as a key U.S. demand in its trade agreements. The provisions appeared in the TPP, in the proposed digital trade chapter in NAFTA, and in the stalled Trade in Services Agreement.  While the issue is a prominent one in trade talks, the Canadian position has remained largely unknown. That may have changed last week at a hearing of the Standing Committee on International Trade when NDP MP Tracey Ramsey asked department officials about the issue:

My next question is about the probability of including provisions that ban data localization. I think you mentioned things in the future…I think about NAFTA, we couldn’t have envisioned the world that we’re in now 25 years ago, and so there wasn’t language in there. So do you think that this will include data localization measures, in TiSA? It’s a concern for Canadians in particular, with the two provinces that we have that protect that.

Darren Smith, the Director of Services Trade with Global Affairs, replied:

Yes, in fact, data localization is an issue that is being discussed in TiSA. That work is not complete but Canada’s approach, which is shared by a good number of other participants, is to have a balanced approach so that we can still ensure a cross-border flow of data but at the same time protect that information that’s held by government or in a government procurement context. So the two cases that you referred to, Nova Scotia and B.C., would not be part of TiSA.

To the best of my knowledge, this is the first time the government has stated its position, which amounts to retaining the right for data localization measures for government data that it holds or that is held by third parties under contract. That addresses some potential concerns (including the viability of provincial data localization laws in B.C. and Nova Scotia) but it would appear to exclude wider use of data localization requirements.

Given the privacy concerns extend beyond just government data, agreeing to a ban on future data localization requirements consistent with privacy and security needs is a short-sighted position that unnecessarily handcuffs policy makers on future privacy measures. There is a balance to be struck with data localization, but the balance involves more than just government data. Rather, it requires ensuring that reasonable privacy, security, and public policy measures will not be banned due to trade agreements such as the TPP or NAFTA.

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Framing the Copyright Review: Bains and Joly Reference the Public Domain, Flexibility, Open Access and Limits of the Law

Michael Geist Law RSS Feed - Fri, 2017/12/15 - 14:12

The government launched its copyright review earlier this week with a Parliamentary motion to send the review to the Standing Committee on Industry, Science and Technology. I wrote a preview of some of the likely issues, noting the efforts of lobby groups to restrict fair dealing, extend the term of copyright, and target intermediary liability. Yet the letter from Ministers Navdeep Bains and Melanie Joly to committee chair Dan Ruimy, which should be posted online shortly, confirms that the government appreciates the competing perspectives on copyright and the limits of what the law can (or should) do.

The letter identifies three specific questions to be answered:

  • How can we ensure that the Copyright Act functions efficiently to foster a marketplace that is transparent, promotes innovation and access for users, and supports creators in getting fair market value for their copyrighted content?
  • How can we ensure that the copyright framework continues to function in an environment of constant change in technology and business possibilities?
  • Finally, how can our domestic regime position Canadian creators, users, and innovators to compete on and harness the full potential of the global stage?

Each question works to ensure that the interests of creators and users are reflected and will form part of the final report, frequently referencing creativity and innovation together. Indeed, the diversity of interests arises throughout the framing of the letter. For example, in discussing the role of copyright, the Ministers state the law “should ensure creators receive fair and transparent remuneration and that users benefit from a public domain.” References to fair and transparent remuneration (which implicates both payment models and copyright collective transparency) is unsurprising but governments have not commonly highlighted the benefits of the public domain.

Identifying the differing stakeholders and issues similarly strives for balance:

This diversity of viewpoints is because copyright affects a wide range of industries, works, and uses: from telecom and tech companies, to scientific institutions, and academia, from photographs, music, and books, to augmented reality content; and from museums, art galleries, and brick and mortar stores, to machine-readable data, and beyond.

The government takes note of how users are increasingly creators themselves, with implications for copyright flexibility and open source models:

As users are increasingly enabled to become creators themselves, interactions with copyright have become even more ubiquitous, leading some to suggest current copyright rules need greater adaptability to new uses and formats. Private and public initiatives based on open source and open access have multiplied.

It is also heartening to see that the government recognizes the limits of copyright law:

Market disruption has often driven copyright reform. We suspect that disruption is now our constant state. Hence, we would be well-served to aim for a marketplace framework that functions well in the current environment, but that also can stand the test of time. We respectfully suggest that the Copyright Act itself might not be the most effective tool to address all of the concerns stemming from recent disruptions. For example, issues like the integrity of content metadata, better tracking and information of copyright activity, simpler licensing systems, and the importance of transparency for all players in the system, may reach beyond the scope of the legislation itself.

This perspective will become important when sectors facing disruption identify copyright as a mechanism to address competition challenges.

Finally, the letter also makes clear that the Industry Committee is the lead committee that will deliver the report on copyright review. The role of the Standing Committee on Canadian Heritage is seemingly still to be determined, with the sole reference stating:

Given that the Copyright Act is a key piece of the creative marketplace legislative framework, we encourage you to tap into the expertise and informed perspectives of the Standing Committee on Canadian Heritage throughout this review. The scope of issues related to copyright is broad and we feel that innovative mechanisms – such as special joint sessions or deep-dive studies on particular subject matters – could ensure that all relevant policy considerations are accounted for in your final report.

As I noted earlier this week, the review promises to run for much of 2018 and ultimately serve as key document for future reform efforts.

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Industry Committee Calls for CASL Clarification, Rejects Demands for Anti-Spam Law Overhaul

Michael Geist Law RSS Feed - Fri, 2017/12/15 - 10:22

The Standing Committee on Industry, Science and Technology has released its final report on CASL, Canada’s anti-spam legislation. While some groups pleaded for a legislative overhaul – Scott Smith of the Canadian Chamber of Commerce “urge[d] this committee to take a stand on this legislation and make recommendations for a significant overhaul” – the committee adopted a far more cautious tone, limiting the recommendations on substantive provisions to “clarifications” of the law. The emphasis on clarification (it even appears in the study title) is clearly intentional, stopping short of specifying any precise legislative amendments. I appeared before the committee, arguing that spam and spyware pose real risks and that there is evidence that the law has been effective in reducing spam and improving the effectiveness of electronic marketing.

The report readily acknowledges the competing views on the law:

critics of the Act claim that its prescriptive and often unclear provisions have a chilling effect on commercial electronic communications, others observe that the Act increases the effectiveness of electronic marketing, protects the autonomy and privacy of consumers, and reduces the costs associated with unsolicited commercial electronic messages.

The report argues that better guidance would help, but it recommends clarifications of several substantive provisions, including the definition of a commercial electronic message, consent, business-to-business messages, and the application of the law to charities. That approach falls short of recommending major changes or amendments to the law, however, and could be achieved by supplementing existing regulation or even through additional administrative guidance. Indeed, the committee’s approach can be contrasted with its administrative recommendation, which includes a direct call for an amendment to the name of the law to the original Electronic Commerce Protection Act. The committee also recommends more pro-active enforcement efforts across government, better education and guidance materials, and continued delay of the private right of action. The NDP wrote a supplementary opinion to the report, which supported improved training but rejected other changes. Moreover, it recommended implementing the private right of action and conducting another study in three years with the support of more data on the effectiveness of the legislation.

The committee has asked the government for a detailed response to the report, which should be forthcoming in the spring. The government can be expected to fully support the enforcement recommendations, but retain flexibility on the recommendations for further clarification. While it remains possible that ISED Minister Navdeep Bains could later introduce clarifying amendments or regulations, the political risks associated with opposition criticism for weakening consumer privacy just prior to the 2019 election campaign more likely means that the foundation of the law will be kept largely unchanged for the foreseeable future. If so, the report should be a wake-up call for the CRTC to improve its guidance and enforcement efforts and for business to come to grips with the fact that Canada’s anti-spam law is here to stay.

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As the U.S. Retreats, Canada Doubles Down on Net Neutrality: “An Open Internet is Critical to Our Democracy”

Michael Geist Law RSS Feed - Thu, 2017/12/14 - 10:42

As the U.S. Federal Communications Commission prepares to rollback net neutrality protections, the Canadian government has used the controversy to double down on its support for net neutrality safeguards, linking it to democracy, equality, and freedom of expression. I’ve written several posts on how the U.S. decision may impact Canadian Internet users and businesses and noted how Canadian NAFTA negotiators have indicated that they support inclusion of a net neutrality provision within the agreement’s new digital trade chapter.

In recent days, the issue has garnered even more attention on the political front. For example, earlier this week, the Liberals used one of their questions in Question Period to highlight their support for net neutrality in contrast to differing views from the Conservatives:

Mr. Majid Jowhari (Richmond Hill, Lib.): 
Mr. Speaker, Internet is not a luxury but a necessity in today’s world. While it is important to invest in infrastructure and support access to Internet service, we also need to maintain equal access to information provided to it. We need net neutrality. Just this past weekend, the member from Beauce said we needed less net neutrality and the member for Parry Sound—Muskoka said he disagreed. It seems the official opposition cannot take a position. Could the minister clearly reiterate the government’s position on net neutrality in Canada?

Hon. Navdeep Bains (Minister of Innovation, Science and Economic Development, Lib.): 
Mr. Speaker, I was wondering if the leader of the official opposition could provide clarification on what its position is, because the member for Beauce, who is the official innovation critic said one thing and the member for Parry Sound—Muskoka says he disagrees with him. Let me be clear. Our government stands to support net neutrality. We support an open Internet. We support the CRTC framework for net neutrality, because we know an open Internet is critical for our economy and our democracy.

The reference to Conservative discord on net neutrality stems from a Maxime Bernier tweet expressing support for an anti-net neutrality column, which elicited the following response from Tony Clement:

clement tweet, https://twitter.com/TonyclementCPC/status/939623823724253184

 

The Bernier position is not particularly surprising, given that he has long argued against active telecommunications regulation. The Conservatives have yet to articulate a single position, but Bernier’s telecom policy approach was an outlier for the vast majority of the Harper years. Given their previously aggressive approach on telecom policy, it would be a surprise if they abandoned support for net neutrality.

Lost in the discussion was strong net neutrality support from the NDP, with MP Brian Masse tweeting several weeks ago:

Masse tweet, https://twitter.com/BrianMasseMP/status/933425018612211712

 

As the U.S. heads toward a period of uncertainty – the net neutrality rollback is likely to be challenged in court and the political pressure to affirm support in Congress in mounting – the Canadian landscape offers a sharp contrast with strong political and regulatory support for net neutrality rules.

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The Fight for Fair Copyright Returns: Canadian Government Launches Major Copyright Review

Michael Geist Law RSS Feed - Wed, 2017/12/13 - 16:19

The Canadian government kicked off its review of the Copyright Act this afternoon with a motion to ask the Standing Committee on Industry, Science and Technology to conduct a study on the issue. The formal launch had been expected for months since the 2012 reforms included a mandatory review of the law every five years. Lobby groups have been steadily gearing up for the review, with some hoping to undo some of the balancing provisions of the last reform process or demanding new restrictions. Indeed, restrictions on fair dealing, takedown rules, website blocking, and copyright term extension will undoubtedly figure prominently in the lobby playbook. Yet for millions of Canadians, the copyright review offers an opportunity to ensure that the law meets the needs of education, innovation, consumer rights, and creators with more flexibility in the form of fair use and restoring neutrality on Canada’s restrictive digital lock rules.

The decision to send the copyright review to the Industry Committee may surprise some, but it is consistent with the Copyright Act, which makes it clear that the Minister of Industry is the minister responsible for the legislation. In an effort to dampen concerns that Canadian Heritage will play a diminished role in the review (the Canadian government has long treated copyright as a shared responsibility), the rumours are that the Standing Committee on Canadian Heritage may be asked to assist on certain issues. Unless carefully crafted, that approach seems likely to lead to unnecessary duplication with the same witnesses seeking opportunities to appear before both committees since copyright issues cannot be easily separated as “industry” or “heritage”. Further, the cumbersome administrative approach seemingly guarantees a lengthy process with the review likely to run for much of 2018.

The lobby group wish list will start with new restrictions on fair dealing. The fair dealing provision (Canada’s version of fair use) has been the subject of multiple Supreme Court of Canada decisions that have conclusively ruled that it is a user’s right that should be interpreted in a broad and liberal manner. The Canadian approach is arguably still more limited than provisions found in fair use countries such as the U.S., Singapore, South Korea, and Israel. Despite considerable evidence to the contrary, groups have seized on changes in industry licensing practices to claim that the Canadian law has harmed authors and publishers. While educational groups have veered away from a licence offered by Access Copyright, the reality is that licensing expenditures have increased since 2012. In fact, some Canadian authors and publishers have expressed concern that their works are being copied in education using fair dealing, despite the fact that their books have been licensed in perpetuity by dozens of educational institutions with the sector spending millions of dollars to acquire the rights to use hundreds of thousands of e-books. These demands for double payment on the backs of students, who already spend hundreds of dollars on books every semester, should stop and be called out at the committee.

Meanwhile the music industry, fresh off convincing the government to move Copyright Board reform to the front of the line, can be expected to continue its campaign on the so-called “value gap”, a misleading term for targeting notice-and-takedown rules that are not even part of Canadian law. The industry has enjoyed remarkable success since 2012, growing far faster the world average and passing Australia as the world’s 6th largest music market. The growth has come largely through Internet streaming revenues, which now generate tens of millions of dollars every year for creators, publishers, and the broader industry. The industry is also likely to continue to lobby for copyright term extension, as foreshadowed by a lobbying blitz just last month in Ottawa.

If that were not enough, Bell and other allies are likely to call for new rules on website blocking in Canada. Bell admits that copyright reform is not needed for site blocking, but the link to the Copyright Act ensures that the issue will be a prominent part of its lobbying campaign. The reality is that Canada is already home to some of the toughest anti-piracy laws in the world with many legislative tools readily available for rights holders and some of the largest damages provisions found anywhere in the world. Further, these only represent a portion of the lobby demands, which are likely to range from a massive expansion of potential damage awards (from Access Copyright) to a revival of the iPod tax/private copying levy (music) to the creation of a new fee for linking to newspaper articles.

While these represent potentially radical distortions of a balanced copyright system, the review offers important opportunities to fix some of the ongoing problems in the law. The notice-and-notice system was enacted with good intentions, but internal government documents acknowledge that the system has been used to pressure thousands of Canadians into paying settlements even in situations where they have not violated the law. There is a long-overdue need to restore the system to its original intent.

Canada’s fair dealing provision has proven critical in recent months for creators, who have used it to ensure that their creativity is not shut down or blocked (examples include cases involving the film Roomful of Spoons and a documentary film on the Vancouver Aquarium). Yet Canadian law would benefit from a full fair use provision, consistent with that found in many other innovative countries. Moreover, with the government betting heavily on Canada becoming a leader on artificial intelligence, the prospect of copyright slowing AI development is a real possibility. This points to the need for a specific exception for text and data mining, similar to provisions used in other countries around the world.

Canada’s digital lock rules were the most controversial aspect of the 2012 reforms, with Canada caving to U.S. demands for some of the most restrictive rules anywhere in the world. In fact, even as the U.S. has established new exceptions for digital locks, Canada’s rules have remained largely unchanged (the exception involved access for the blind and visually impaired). The solution has been obvious for years as Liberal MP Geoff Regan (now Speaker of the House) warned in 2012 that “what the government seems to want to do is preserve old models and ignore the fact that we have moved into a digital world.”  The law needs a clear exception for circumvention for legal purposes such as fair dealing, a reform that would simply bring neutrality to the digital and analog worlds.

There are no shortage of other positive reform issues including the elimination of crown copyright and addressing copyright associated with indigenous communities. The good news is that there are signals that the government gets the need for balance and Canadian-oriented policies as evidenced by its rejection of term extension and restrictive digital locks in the TPP negotiations and the recent International Trade committee report that warned against unbalanced U.S. IP demands in NAFTA. Most Canadians do not follow the day-to-day policy battles over copyright, but the law has a significant impact on many aspects of their daily lives. The copyright review of 2018 will help shape future reforms creating a critical need for individual Canadians to ensure their voices are heard.

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Canadian Trade Committee Warns Against Unbalanced U.S. IP Demands in NAFTA

Michael Geist Law RSS Feed - Tue, 2017/12/12 - 13:05

The House of Commons Standing Committee on International Trade released its detailed study on the priorities of Canadian stakeholders in NAFTA earlier today. I appeared before the committee to discuss intellectual property and digital trade issues in September. The report includes notable recommendations on culture (retain the cultural exemption in NAFTA) and digital rights (ensure that digital trade provisions do not undermine Canadians’ privacy rights or security of their data, a nod to concerns over data localization and data transfer rules). It also features an important discussion on the intellectual property chapter, with clear support for retaining a made-in-Canada approach consistent with international standards.

The committee’s recommendation on intellectual property states:

That the Government of Canada, during the North American Free Trade Agreement negotiations, oppose provisions that would reduce its ability to ensure that the Canadian intellectual property regime balances the interests of right holders and users. As well, the government should work to preserve Canada’s ability to modernize its regime following domestic reviews.

The recommendation is important as it signals that the Liberal government recognizes that some of the NAFTA IP demands from the U.S. – notably including copyright term extension, increased copyright criminalization, and a notice-and-takedown system – would alter the Canadian copyright balance between rights holders and users. It is also an implicit rejection of the website blocking proposal raised by Bell, which would radically alter the copyright balance. Moreover, the emphasis on flexibility on domestic reforms reinforces that Canada should maintain the right to create its own copyright and IP laws that reflect international norms. That position is consistent with my submission before the committee earlier this year.

The NDP provided a supplemental opinion that focuses on the specific areas of copyright concern, highlighting the importance of access, supporting the notice-and-notice system, and rejecting any copyright term extension:

Canadian copyright policy must not be sacrificed at the altar of free trade. Maintaining balanced and sensible copyright policy is particularly critical in light of the fundamental connection between copyright law and the ability to exercise free expression online – through sharing knowledge, research, and art; participating in public and political discourse; contributing to the cultural commons; and inspiring, and building upon creativity. The NDP emphasizes the fact that notice-and-notice is an effective system that achieves objectives with respect to copyright infringement, while mitigating (albeit not completely) the harms that arise from notice-and-takedown.

The Canadian government, should reject any proposal to extend copyright terms beyond its current term of 50 years after the author’s death, knowing that current Canadian copyright terms are already largely in compliance with international copyright treaties.

The Conservatives also submitted a supplemental opinion, but it did not touch on the IP issues. The report confirms awareness and concern with U.S. efforts to export one-sided copyright and IP rules. Indeed, the government’s emphasis on copyright balance and the NDP’s clear rejection of copyright term extension represents a good starting position for both trade negotiations and the forthcoming domestic review of the Copyright Act.

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Net Neutrality Briefing: My Appearance Before the Standing Committee on Access to Information, Privacy and Ethics

Michael Geist Law RSS Feed - Mon, 2017/12/11 - 10:58

As the concern over U.S. net neutrality rules heats up, last week I appeared before the House of Commons Standing Committee on Access to Information, Privacy and Ethics to provide committee members with an hour-long briefing on the issue. The audio of the appearance can be found here. My opening remarks, which emphasized the Canadian net neutrality framework, the potential impact of U.S. policies, and the implications for privacy and freedom of expression, are posted in full below.

Appearance before the House of Commons Standing Committee on Access to Information, Privacy & Ethics, December 6, 2017

Good afternoon. My name is Michael Geist.  I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law, and I am a member of the Centre for Law, Technology, and Society. My areas of speciality include digital policy, intellectual property, and privacy. I have appeared many times before this committee and as always, I appear in a personal capacity representing only my own views.

I am grateful to the committee for its commitment to privacy and access to information and its interest in how the issue of net neutrality may affect these issues. I propose to begin this briefing with an introduction to net neutrality, some comments on recent events, and then considerations of the intersection between net neutrality, privacy, and access.

Canada seemed lost when it came to Internet policy a little over a decade ago. The government showed scant interest in the technicalities of Internet services and the CRTC stood idly by as leading Internet providers limited speeds of some applications (a practice known as traffic shaping) and mused openly about new fees for the right to transmit content to subscribers.

Those early Internet policies are unrecognizable today as Canada has emerged as a world leader in supporting net neutrality. At its heart, net neutrality means that all content and applications should be treated equally and that choices made by Internet users should be free from ISP or telecom interference. The policies do not guarantee Internet success – no law does – but signals a clear commitment to placing consumers and creators in the Internet driver’s seat.

The foundation of Canadian policy lies in four CRTC decisions that address practices such as managing Internet traffic to limit speeds for some applications or creating pricing plans that “zero rate” certain content that does not count as part of monthly data consumption caps. CRTC policies now restrict these practices, recognizing that net neutrality preserves the “common carrier” approach for ISPs and encourages marketplace competition and innovation based on price, speed, and quality of networks.

The CRTC approach allows for Canadians to file complaints about net neutrality violations, which they have done on occasion. The CRTC proceeds to investigate and, in some instances, conduct hearings into the broader implications raised by the concern. The policies also provide for greater transparency on network management practices, requiring ISPs to disclose how they manage their networks and what their practices mean for consumer Internet use.

In recent weeks, Canadian leaders and regulators have made their support for net neutrality clear. For example, Navdeep Bains, the Innovation, Science and Economic Development Minister responded to the U.S. developments that I’ll discuss momentarily by affirming that “Canada will continue to stand for diversity and freedom of expression. Our government remains committed to the principles of net neutrality.”

Canadian Heritage Melanie Joly has similarly emerged as a notable proponent of net neutrality. Some cultural groups have called on the government to abandon net neutrality by mandating preferential treatment of Canadian content. These recommendations have come as recently as last week as part of the CRTC’s consultation on the future of broadcast. Yet Joly has affirmed that the principle remains at the core of Canadian cultural policy, noting “we will continue to champion the Internet as a progressive force and an open space without barriers. As a government, we stand by the principle of net neutrality.”

The Canadian commitment to net neutrality has been similarly endorsed at the regulatory level. New CRTC chair Ian Scott told an industry conference last month that “as companies continue to innovate in their offerings to Canadians, the CRTC will continue to ensure that Canada’s Internet neutrality provisions are respected…the owners and operators of the country’s communications may not discriminate against content based on its origin or destination.”

As you know, the FCC, the U.S. telecommunications regulator, plans to rollback net neutrality regulations. This has sparked an immediate backlash from the Internet community who fear that the decision will turn the Internet in the U.S. into a cable-like service dominated by the carriers and deep-pocketed giants that can afford to pay new fees to keep their content on the fast lane. The U.S. order, which would also block states from implementing their own versions of net neutrality policies, is set for a vote next week.

Canadian consumers may be shielded from net neutrality abuses in their home Internet use, but the effects of the U.S. decision may still be felt here. Since Canadian Internet traffic often transits through the U.S., there are concerns that Canadian data could get caught by non-neutral policies. Moreover, Canadian Internet services hoping to attract U.S. customers may face demands for payments to have their content delivered on the fast track.

Since the NAFTA renegotiations include a chapter on digital trade, Canadian negotiators should be pushing for the inclusion of a strong, enforceable net neutrality provision. In fact, earlier this week, lead Canadian negotiator Steve Verheul told a Commons committee that Canada wants a net neutrality provision included in the digital trade chapter in NAFTA. That would be a good step, particularly if the provision has real teeth.

It should be noted that there is a direct and important connection between net neutrality and privacy.  Canada has long recognized the dangers that would come from active monitoring of telecom and Internet users. Neutrality – whether in our telephone networks or Internet networks –  always included a link to privacy. For example, one of the early net neutrality concerns involved Internet telephony, which offers the prospect of cheaper, secure, encrypted communications. Yet providers saw the service as a competitor, leading to reports of blockages or degrading speeds to render the services less usable. This was true in the U.S. in the Madison River case and true in Canada under some of the early net neutrality complaints. Strong net neutrality rules help ensure that does not happen.

Similarly, the first CRTC net neutrality decision (called Internet traffic management practices) included considerable discussion on carrier practices involving deep packet inspection, which allowed them to examine the type of content running on their networks. The technology raised significant privacy concerns and the CRTC ultimately issued an order that “all primary ISPs, as a condition of providing retail Internet services, not to use for other purposes, personal information collected for the purposes of traffic management and not to disclose such information.”  In other words, the net neutrality rules established additional privacy safeguards resulting from carrier management of their networks.

Net neutrality also has a strong connection to access to information.  Reports this week that Bell plans to ask the CRTC to create a website blocking agency, which would develop block lists without court review, highlights how carriers may interfere with access to content. In a recent submission to the CRTC, Bell links the need for blocking of unauthorized streaming sites and downloading services with the success of its CraveTV service, arguing that blocking access to those sites would result in hundreds of thousands of new subscribers. That claim is debatable, but the incentives to block content in carrier self-interest, particularly for large, vertically-integrated companies, is very real.

Indeed, one of Canada’s first net neutrality cases involved Telus, which infamously blocked access during a labour dispute to a site called for Voices for Change. Telus maintains that it has not repeated the blocking approach, but the fact that it did so – and believed that it could exercise the power to do so – demonstrates why there is need for clear, legislative safeguards against content blocking.

Yesterday, David Lametti, the Parliamentary Secretary for the Minister of Innovation, Science and Economic Development, told the House of Commons that “net neutrality is the critical issue of our times, much like freedom of the press and freedom of expression that came before it.”

Given the critical role played by the Internet in all walks of life and the exceptional power wielded by carriers, Mr. Lametti is right.

I look forward to your questions.

The post Net Neutrality Briefing: My Appearance Before the Standing Committee on Access to Information, Privacy and Ethics appeared first on Michael Geist.

Supreme Court of Canada Rules Text Messages May Attract Reasonable Expectation of Privacy

Michael Geist Law RSS Feed - Fri, 2017/12/08 - 12:42

The Supreme Court of Canada has issued a landmark decision concluding that text messages may attract a reasonable expectation of privacy even after they have been sent and received. The case recognizes the importance of electronic communications and the privacy implications of electronic messaging, establishing a standard that is likely to have a significant impact on investigations across the country. Further, the court’s emphasis on a functional approach to privacy in the digital world could have implications that extend well beyond conventional text messaging. The court was divided on the issue: four judges comprised the majority (written by Chief Justice McLachlin), Justice Rowe concurred, and Justice Moldaver wrote a dissent (joined by Justice Cote). The court also released a second decision today involving text messaging which examined the intercept provisions that will be the subject of a future post.

The heart of the case was characterized by the majority in the very first paragraph:

Can Canadians ever reasonably expect the text messages they send to remain private, even after the messages have reached their destination? Or is the state free, regardless of the circumstances, to access text messages from a recipient’s device without a warrant? The question in this appeal is whether the guarantee against unreasonable search and seizure in s. 8  of the Canadian Charter of Rights and Freedoms  can ever apply to such messages.

The answer from the majority is yes: there can be a reasonable expectation of privacy in text messages even after they have been sent and received.

The case involved text messages involving illegal transactions in firearms. Police obtained a warrant to search the homes of the two individuals involved in the case, seizing their phones and accessing incriminating text messages. The lower court ruled that one of the warrants was invalid and that the messages obtained from the phone in that house could not be used as evidence. However, the messages were also recovered from the phone of the other individual and the judge in the case ruled that there was no expectation of privacy regarding the messages on that phone. In other words, the messages from the sender’s phone could not be used as evidence, but the same messages found on the recipient’s phone were fair game.

The majority of the Supreme Court disagreed, concluding that text message conversations can attract a reasonable expectation of privacy (though it will not always do so). The court importantly states that the subject matter of the search must be viewed functionally: the police were interested in the text message conversation, not the physical phone:

The subject matter of the search at issue was not Mr. Winchester’s iPhone, from which the text messages in this case were recovered. Neither the iPhone itself nor its contents generally is what the police were really after. The subject matter must, therefore, be defined more precisely.

Correctly characterized, the subject matter of the search was Mr. Marakah’s “electronic conversation” with Mr. Winchester. To describe text messages as part of an electronic conversation is to take a holistic view of the subject matter of the search. This properly avoids a mechanical approach that defines the subject matter in terms of physical acts, spaces, or modalities of transmission. It also reflects the technological reality of text messaging.

The subject matter of the search was therefore the conversation, not the components such as the physical phone or servers that might store the texts. In fact, the court suggests that the subject matter extends to “the existence of the conversation, the identities of the participants, the information shared, and any inferences about associations and activities that can be drawn from that information.”

The court then moves onto the question of reasonable expectation of privacy. There is no question that the defendant expected the recipient of the messages to keep them private. However, was that expectation reasonable?  The court considers three factors: the place of the search, the private nature of the subject matter, and control over the subject matter.

With respect to place of the search, the court notes that electronic communications do not fit neatly into the non-digital context. It considers the possibility that the electronic conversation do not occupy a physical place, recognizing that we often speak of “private chat rooms” between individuals. Further, there is a spectrum of places from content on my own phone (high) to someone else’s phone (lower) to public display (none). This discussion on the lack of a physical place for electronic communications could have implications well beyond text messaging.

The court adopts a broad approach with respect to the private nature of the subject matter, reasoning that individuals may have a privacy interest in the fact of their communication:

The personal nature of the information that can be derived from text messages is linked to the private nature of texting. People may be inclined to discuss personal matters in electronic conversations precisely because they understand that they are private. The receipt of the information is confined to the people to whom the text message is sent. Service providers are contracted to confidentiality. Apart from possible police interception — which cannot be considered for the purpose of determining a reasonable expectation of privacy— no one else knows about the message or its contents. Indeed, it is difficult to think of a type of conversation or communication that is capable of promising more privacy than text messaging. There is no more discreet form of correspondence. Participants need not be in the same physical place; in fact, they almost never are.

Given their privacy import, that court states:

Electronic conversations, in sum, are capable of revealing a great deal of personal information. Preservation of a “zone of privacy” in which personal information is safe from state intrusion is the very purpose of s. 8  of the Charter. As the foregoing examples illustrate, this zone of privacy extends beyond one’s own mobile device; it can include the electronic conversations in which one shares private information with others. It is reasonable to expect these private interactions — and not just the contents of a particular cell phone at a particular point in time — to remain private.

The most notable aspect of the analysis turns on control. The Crown argued that once we lose control over the message – it is received by another party who has the capability of disclosing it to third parties – we lose a reasonable expectation of privacy with the message. The majority disagreed:

a person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it. Even where “technological reality” deprives an individual of exclusive control over his or her personal information, he or she may yet reasonably expect that information to remain safe from state scrutiny.

This aspect of the decision could be hugely important for other information communicated on electronic networks, where there may be some loss of control but the sender still had some expectation that the information would remain private.

Finally, the majority of the court also considered the public policy implications of the decision, including whether this ruling would disrupt the balance between law enforcement and privacy (as argued by the dissent). Its view:

There is nothing in the record to suggest that the justice system cannot adapt to the challenges of recognizing that some text message conversations may engage s. 8  of the Charter . Nor is it disputed that, where scrutiny of an electronic conversation is concerned, the state’s interest in effective law enforcement is outweighed by “the societal interests in protecting individual dignity, integrity and autonomy”. Whatever law enforcement’s interest in enjoying unfettered access to individuals’ text messages, privacy in electronic conversations is worthy of constitutional protection. That protection should not be lightly denied.

In light of this analysis, the majority concludes that there was a reasonable expectation of privacy in the text messages and it excludes the evidence from the case.

The dissenting opinion written by Justice Moldaver is particularly concerned with the policy implications of the decision, warning of serious, negative consequences:

From the standpoint of policy, granting Mr. Marakah standing in these circumstances would vastly expand the scope of persons who can bring a s. 8  challenge. The Chief Justice, speaking for a majority of the Court, adopts an approach to s. 8  that has no ascertainable bounds and threatens a sweeping expansion of s. 8  standing. This carries with it a host of foreseeable consequences that will add to the complexity and length of criminal trial proceedings and place even greater strains on a criminal justice system that is already overburdened. Worse yet, expanding the scope of persons who can bring a s. 8  challenge risks disrupting the delicate balance that s. 8  strives to achieve between privacy and law enforcement interests, particularly in respect of offences that target the most vulnerable members of our society, including children, the elderly, and people with mental disabilities.

Both the majority and dissent recognize the significance of this decision. In a world where electronic communications is increasingly important, the privacy rights attached to those conversations is of enormous importance. Justice Rowe’s concurrence notes that “digital communication inherently limits the control we have over the messages we send, as it inevitably creates a record that is beyond our control.” The Supreme Court of Canada today acknowledged that reality and adopted an approach that ensures that there may still be some privacy even where we lose some control over the communication.

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Canada’s Lead Negotiator Confirms Government Seeking Net Neutrality Safeguards in NAFTA

Michael Geist Law RSS Feed - Thu, 2017/12/07 - 11:07

Steve Verheul, Canada’s lead NAFTA negotiator, appeared before the Standing Committee on International Trade earlier this week to provide an update on the negotiations. In addition to confirming Canada’s commitment to a cultural exception (Verheul acknowledged that the U.S. “has not reacted positively”), Verheul was asked about the digital trade chapter. He indicated that there has been significant progress on issues such as online consumer protection and privacy.  He also touched on two other issues: one a Canadian ask and the other a U.S. priority.

From a Canadian perspective, Verheul said that Canada wants a net neutrality provision included in NAFTA, noting:

We are including provisions such as online consumer protection to ensure that that is provided for and we also have provisions to provide personal information protection, which we feel is essential in this kind of trade, along with our position that we want to protect net neutrality when it comes to digital trade.

As I wrote last month, there is a need to address net neutrality in NAFTA since the U.S. decision to roll back protections could have a negative impact on Canadian businesses operating in the U.S. The NAFTA digital trade chapter is the ideal place for a net neutrality provision, though the rule should be stronger than the lightweight provision that was included in the TPP.  This issue garnered particular attention during my appearance this week on net neutrality before the ETHI committee with MPs expressing interest (and some pessimism) about the likelihood of success.

While Canada is seeking NAFTA net neutrality protections, the U.S. is focused on establishing safe harbour protections for Internet intermediaries. Verheul indicated that the two countries disagree on the issue for the moment:

One of the outstanding issues remains a proposal put forward by the U.S. with respect to providing a safe harbour for Internet computer service providers. In Canada, we do not have that kind of protection from civil liability for those providers and we think that’s a domestic policy issue; that’s an issue for the courts rather than an issue for trade agreements. That’s one of the differences we have with the U.S. at this point in time.

I also recently wrote about the safe harbour issue, arguing that Canada would benefit from establishing a provision that maintains the need for responsible stewardship of online providers without overbroad monitoring or unwarranted takedowns.

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Not Just Bell: Shaw Calls on CRTC To Support Website Blocking

Michael Geist Law RSS Feed - Wed, 2017/12/06 - 12:45

As Bell develops plans to apply to the CRTC to create a website blocking agency, it is also working to create a coalition of supportive companies. The initial Canadaland report noted that the coalition could include Rogers, Cineplex, and Cinema Guzzo. Rogers has since indicated that it is still considering whether to join the coalition. As I note in my post today on the submissions to the CRTC’s consultation on broadcasting, Shaw is now also making the case for website blocking, devoting several pages to supporting it. Unlike Bell, however, it does not reference a specific agency mandated to support blocking, focusing instead on court-ordered blocking.

The Shaw submission seeks to equate access to grey market satellite services with unauthorized streaming services. It acknowledges that Canadian copyright law already addresses Internet piracy and that court orders can be obtained to shut down services that violate the law. It argues, however, that even with a court order, the CRTC must still approve website blocking. Unlike Bell, which envisions a website blocking system without court review, Shaw is focused on granting approvals for blocking with court oversight:

Shaw submits that the CRTC should consider using its authority under section 36 to approve court orders for ISPs to block access to online services infringing Canadian copyright law. While the Telecommunications Act’s objectives articulated in section 7 do not refer directly to the promotion or protection of a Canadian rights market, there is a clear case that blocking access to illegal streaming services responds to the “economic and social requirements of user of telecommunication services”, in furtherance of paragraph 7(e).

It will be interesting to see if Shaw joins Bell’s coalition, since its support of website blocking appears contingent on a court order.

As the carriers line up in support of some form of website blocking, the issue is already sparking a political backlash. Yesterday in the House of Commons, Conservative MP Matt Jeneroux raised the issue during Question Period:

Mr. Matt Jeneroux (Edmonton Riverbend, CPC): Mr. Speaker, Bell and several other media conglomerates have announced a proposal to create a mandatory blocking system for websites that they have arbitrarily determined are inappropriate. However, the blocking process would take place with little to no oversight by our courts. This plan has Internet and net-neutrality experts concerned. Will the government let these multi-billion dollar companies control Canadians’ Internet access?

Mr. David Lametti (Parliamentary Secretary to the Minister of Innovation, Science and Economic Development, Lib.): Mr. Speaker, as our minister has made very clear, we support the principle of net neutrality, where Canadians have access to the content of their choice in accordance with Canadian laws. I can assure my hon. colleague and friend that net neutrality is the critical issue of our times, much like freedom of the press and freedom of expression that came before it. That is why our government will continue to support a strong net-neutrality framework through the CRTC.

While it is encouraging that the government is defending net neutrality, the prospect of website blocking extends beyond just the issues of net neutrality into freedom of expression and other fundamental rights. With the carriers apparently lining up to support blocking, this is shaping up to be one of the defining digital rights issues of the coming year.

The post Not Just Bell: Shaw Calls on CRTC To Support Website Blocking appeared first on Michael Geist.

Digital Cancon, the Sequel: CRTC Broadcast Consult Sparks Demands for Everything from Internet and iPod Taxes to Website Blocking to Abandoning Net Neutrality

Michael Geist Law RSS Feed - Wed, 2017/12/06 - 10:49

Canadians could be forgiven for thinking that the policies associated Cancon in a digital world largely wrapped up with the release of the government’s policy in September. Canadian Heritage Minister Melanie Joly spent months crisscrossing the country, meeting with hundreds of stakeholders, and ultimately delivering a high profile policy that featured the much-debated Netflix commitment alongside various plans to support the sector. While Joly also promised reviews of the Broadcasting Act, Telecommunications Act, and Copyright Act, she puzzlingly re-opened the very issue she had just decided by issuing an Order-in-Council to the CRTC to examine (yet again) policies associated with broadcasting.

As a result, Joly restarted the same policy fight over everything from ISP taxes to net neutrality. The first stage of the CRTC’s consultation into the issue (it is charged with reporting back to cabinet by June 2018) has yielded nearly 300 submissions, many of which envision extensive Internet regulation and taxation. I provided a submission to the consultation, which will be the subject of a blog post later this week. My full submission, which focuses on maintaining net neutrality and rejecting new taxes and fees, can be found here.

While there is much to digest, a quick scan of many of the submissions reveals that the usual suspects are seeking the same rejected remedies raised in the just concluded consultation: ISP taxes, Netflix taxes, iPod taxes, and killing net neutrality. In fact, the submissions add new taxes to the discussion such as a Spotify tax, data sharing of viewer data across the industry, and the creation of a website blocking agency.

For example, the CBC veers strongly toward increased regulation. It is one of many that wants ISP or Internet taxes, including payments from both broadband and wireless providers to support Cancon:

both Internet Service Providers (ISPs) and wireless carriers should be required to contribute to the support of Canadian content since they provide access to programming through their services and profit significantly from the ongoing popularity of programming over both landline and wireless networks.

The CBC is joined by many other groups: ACTRA wants mandated contributions and the creation of a new licensing regime, CMPA supports contributions from broadband and wireless carriers, and Rogers wants Netflix to spend 30 percent of its gross revenues in Canada to finance Canadian productions.

The CBC also wants widespread data sharing of viewer data, noting the mounting importance of data analytics. Its submission calls for a new regulatory regime to mandate sharing of viewer data:

the regulatory regime should ensure that such data is readily available on a non-discriminatory basis. In particular, data about Canadians and their programming preferences should not become the exclusive property of a select group of players. This data should be available to all players so as to benefit the system as a whole.

The Canadian music industry also focuses on data, with the Canadian Independent Music Association demanding that the CRTC or government to impose regulations on the algorithms used by online music services, presumably in support of Canadian music:

Imposing obligations on online music services for the development of local products, including algorithms.

The music industry also wants the expansion of the private copying levy, once described as an iPod tax. The resurgence of the private copying levy would presumably be applied to wireless devices, computers, and anything else that plays music. ADISQ, supported in a separate submission by CIMA, call for the restoration of the private copying levy:

la révision de la loi sur le droit d’auteur, incluant la restauration du régime de copie privée et la disparition de certaines exceptions anachroniques visant les radios

The music industry also supports increased regulation of online music services, with ADISQ seeking a Spotify tax. It argues that online music services are the equivalent of radio stations and should be required to make similar contributions.

Bell wants some of the regulations it faces removed or scaled back, but it also foreshadows its forthcoming application for the creation of a radical website blocking system to be overseen by the CRTC. As part of its argument, it implausibly argues that the company has lost out on as many as 350,000 new subscribers to CraveTV, citing downloads of its show LetterKenny (apparently claiming that roughly 1 in 3 downloads would result in a full paying subscription). Bell is joined by Shaw, which devoting several pages to support for website blocking based on court orders.

The Canadian Association of Broadcasters is concerned with the growing use of smartphones and connected devices that may not include access to radio stations. The proposed solution:

The Government and CRTC should also consider ways to ensure radio’s presence on smart phones, connected devices and in cars sold in Canada.

It offers no advice on how to do that (but does warn against restrictions on food and beverage advertising).

ACTRA pins some of its hopes on full-scale Internet regulation complete with licensing ISPs, creating an ISP tax, and prioritizing Canadian content in violation of net neutrality rules. The ACTRA submission states:

Since the Internet is increasingly being used to watch audiovisual programs and ISPs are the gatekeepers of that content, they should be required to contribute to the creation and distribution of Canadian programming content. Accordingly, Internet Service Providers should make a financial contribution to Canadian content programs proportionate to the extent to which consumers are obtaining programming content through their ISP. Internet Service Providers should also provide priority access to Canadian programming.

The ACTRA approach is supported by Friends of Canadian Broadcasting, which wants the CRTC to mandate prioritization of Canadian content on the Internet, including measures such as zero rating, which would presumably require the government to order wireless carriers to eliminate data charges for Cancon.

Topping it off are many, many calls for the elimination of the CRTC’s digital media exemption (which ACTRA calls “one of the most short-sighted decisions in regulatory history” and which would result increased CRTC regulation of online services) and the introduction of Netflix taxes, which the government has consistently said it does not support.

None of this is particularly surprising, but it re-affirms that the Canadian cultural industry views the digital world not for its potential commercial and creative opportunities, but rather for the prospect of new taxation and regulation. Joly may be encouraging the industry to adopt a forward-looking, export oriented approach, but many would prefer protectionist measures, the regulation and taxation of any Internet service, and the creation of preferential treatment requirements for Canadian content in violation of net neutrality rules. All of this was avoidable.  However, Joly’s decision to send the culture issue back to the CRTC has now guaranteed months of lobbying on the very issues that the government was supposed to have concluded with an 18-month nationwide consultation and “final” report on which the ink is barely dry.

The post Digital Cancon, the Sequel: CRTC Broadcast Consult Sparks Demands for Everything from Internet and iPod Taxes to Website Blocking to Abandoning Net Neutrality appeared first on Michael Geist.

Bell’s Latest Privacy Solution: Enhance Internet Privacy By Blocking Access to It

Michael Geist Law RSS Feed - Tue, 2017/12/05 - 10:37

The Canadaland report on Bell’s plans to apply to the CRTC to create a website blocking agency unsurprisingly sparked immediate widespread concern. I provided further detail on the proposal, noting the danger of establishing a blocking system without court review of the block list and the very weak case Bell makes to justify it. A critical aspect of the Bell proposal is that it must convince the CRTC that website blocking would further Canada’s telecommunications policy objectives. Given that the CRTC has already ruled that the law prohibits blocking without its approval, that is a difficult standard to meet. I argue that the three justifications raised by Bell – that piracy “threatens the social and economic fabric of Canada”, that the telecommunications system should “encourage compliance with Canadian laws” and that website blocking “will significantly contribute toward the protection of the privacy of Canadian Internet users” – is very weak.

In fact, the privacy argument is not only weak, it is incredibly hypocritical. Bell is arguably the worst major Canadian telecom company on user privacy and its attempt to justify website blocking on the grounds that it wants to protect privacy is shameful. There are obviously far better ways of protecting user privacy from risks on the Internet than blocking access to sites that might create those risks. Further, with literally millions of sites that pose some privacy risk, few would argue that the solution lies in blocking all of them.

Yet Bell in particular is in no position to make this argument. Years after competitors such as Rogers and Telus released telecom transparency reports that disclose the frequency of subscriber information disclosures to law enforcement, Bell has still refused to release such a report, keeping millions of Canadians in the dark on the issue. Bell’s approach to “targeted advertising” also demonstrates how little regard it has for customer privacy. The company changed its privacy policy in 2013 to allow for expanded usage of subscriber data on everything from website visits to TV viewing habits. That led to its targeted ad program, in which it automatically enrolled millions of subscribers unless they proactively opted-out. When the Privacy Commissioner of Canada found that the program violated the law, Bell simply refused to comply:

we remain of the view that Bell cannot rely on the opt-out consent of its customers in order to implement the RAP. Both the sensitivity of the information at issue and the reasonable expectations analysis lead us to the conclusion that such consent is not appropriate in the circumstances. In our preliminary report, we recommended that Bell provide its customers with the opportunity to make an express opt-in choice regarding whether or not they consent to Bell’s use of their personal information for the RAP. Bell refused to comply with our recommendation. [emphasis added]

Bell later backed down, but its privacy challenges have not disappeared with a 2013 lawsuit that awarded thousands of dollars to a subscriber for a privacy violation as well as recent reports that it has hijacked browser sessions from customers that have asked to cancel services. The Privacy Commissioner is currently investigating the practice.

Bell’s radical website blocking plan is terrible policy for many reasons, but the claims that it can be justified on privacy grounds represent a new low for a company that has seemingly seen little value in prioritizing the privacy interests of its customers.

The post Bell’s Latest Privacy Solution: Enhance Internet Privacy By Blocking Access to It appeared first on Michael Geist.

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