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Open Banking Is Already Here: My Appearance Before the Senate Standing Committee on Banking, Trade and Commerce

Michael Geist Law RSS Feed - Fri, 2019/04/12 - 09:05

The Senate Standing Committee on Banking, Trade and Commerce has spent the past month and a half actively engaged in a detailed study of the regulatory framework for open banking. The study has included government officials, representatives from Australia and the UK, and Canadian banking stakeholders. I appeared before the committee yesterday as a single person panel, spending a full hour discussing a wide range of policy concerns.  My core message was that the committee debate over whether Canada should have open banking missed the bigger issue that millions of Canadians already use open banking type services despite the friction in making their data easily portable to third party providers. I recommended several reforms in response, including stronger privacy laws, mandated data portability with informed consumer consent, and consumer protection safeguards that recognizing the likely blurring between incumbent banks and third party providers.

My full opening statement is posted below.

Appearance before the Senate Standing Committee on Banking, Trade and Commerce, April 11, 2019

Good morning. 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, privacy and the Internet. I appear in a personal capacity representing only my own views.

This committee’s study on open banking has been exceptionally interesting and insightful, providing far more context, nuance, and information than the Department of Finance consultation on the issue.

Yet the review has left me somewhat puzzled. Open banking is typically framed – both before this committee, by the government consultation, and in the media – as a matter of “if” or sometimes “when”.  In other words, some debate whether we need it and others suggest that it is only a matter time.

However, I believe the record confirms that open banking is effectively already here. While the banks have largely not provided data portability to their customers, millions of Canadians already provide their banking data to third parties, who frequently use screen scraping to gain access to the banking information. This is presumably provided with customer consent since they are the ones providing the necessary login information.

The screen scraping approach is widely recognized as risky given questions about security of the sensitive data including login information, the identity of the third parties, and the absence of industry standards. The willingness to use these third party services, even in the face of the friction that exists without easy data portability, points to the real risk for government policy.

In my view, that real risk lies in doing nothing, not doing something.

The prospect of account aggregation, the use of AI, and the identification of alternative products and services may sometimes only come from a third party provider. We need to act – and act quickly – to facilitate a marketplace that responds to customer demands, fosters innovation, and addresses longstanding consumer frustrations with a banking system that invariably insists trading cost competitiveness for “stability” is a virtue. If we adopt a consumer-centric perspective on the issue, we should recognize that consumers have demonstrated their interest in open banking but they have been placed at risk by banks that make it difficult to port their data and by the absence of associated policies and effective privacy safeguards.

I’ve heard several senators ask witnesses what can or should be done. I’ll offer three recommendations.

First, Canada’s private sector privacy law must be updated. Simply put, the law was drafted more than two decades ago and is no longer fit for purpose. There are important debates about the legal protections for data, but the immediate issue is that Canadians rely on PIPEDA for their statutory protections. This law does not have an effective enforcement mechanism, meaning there is limited recourse in the event of a potential misuse, whether by the big banks or by a third party provider.

Moreover, privacy law standards that are increasingly common in other jurisdictions are simply absent from the Canadian landscape. In fact, the Privacy Commissioner of Canada has recently taken to reinterpreting the law as a means of expanding its scope and relevance.  For example, earlier this week, the OPC released a new consultation that included its preliminary view that it now believes that cross-border disclosures of personal information require prior consent. The approach is a significant reversal of longstanding policy that relied upon the accountability principle to ensure that organizations transferring personal information to third parties are ultimately responsible for safeguarding that information.

This change in approach has enormous implications for e-commerce, data flows and potentially open banking. It points yet again to the need for legislative review and reform of the law, rather than OPC guidelines that if adopted will likely end up being challenged in Canadian courts.

Second, the government needs to mandate data portability for consumer and small business banking.  The major banks may talk sweetly about their potential support for open banking, but it was only in 2017 that the Canadian Bankers Association was issuing warnings about the open banking risks to consumers and the economy as a whole.

Third party innovative services exist precisely because they offer products and services not offered by the big banks. The only way to restore the safety of Canadian consumers who face real risks with screen scraping is to mandate that their data must be openly shared by the banks where the customer provides an informed consent to do so.  There are undoubtedly security protocols and standards to be developed, but the starting point is regulated support for a consumer-focused system that gives consumer control by opening their data at their request.

Third, as the committee identifies consumer protections and other safeguards, recognize that the difference between the big banks and third party financial providers will become increasingly blurry for many Canadians. That blurring already exists in other sectors – think telecom and the incumbent providers who operate alongside third party services such as Skype, WhatsApp, and a host of other services that offer functionality once limited to the incumbent providers.

The same will be ultimately be true in banking as consumers come to rely on new service providers that offer services alongside the big banks. That suggests that consumer protections and the identification of risks should take a big picture perspective. In fact, just yesterday, the CBC reported that a report from the Financial Consumer Agency of Canada about aggressive sales tactics by the banks underwent revisions after early drafts were provided to the government and the banking sector. The revisions included the removal of proposed consumer protections.

In other words, we should not pretend that it is only new technologies and third parties that bring with them consumer risks.

I look forward to your questions.

The post Open Banking Is Already Here: My Appearance Before the Senate Standing Committee on Banking, Trade and Commerce appeared first on Michael Geist.

Canadian Privacy Commissioner Signals Major Shift in Approach on Cross-Border Data Transfers

Michael Geist Law RSS Feed - Wed, 2019/04/10 - 09:05

The Office of the Privacy Commissioner of Canada has released a consultation paper that signals a major shift in its position on data transfers, indicating that it now believes that cross-border disclosures of personal information require prior consent. The approach is a significant reversal of longstanding policy that relied upon the accountability principle to ensure that organizations transferring personal information to third parties are ultimately responsible for safeguarding that information. In fact, OPC guidelines from January 2009 explicitly stated that “assuming the information is being used for the purpose it was originally collected, additional consent for the transfer is not required.”

The federal privacy commissioner now says that “a company that is disclosing personal information across a border, including for processing, must obtain consent”, adding that “it is the OPC’s view that individuals would reasonably expect to be notified if their information was to be disclosed outside of Canada and be subject to the legal regime of another country.”  While this position is a preliminary one – the office is accepting comments in a consultation until June 4, 2019 – there are distinct similarities with the OPC’s approach on the right to be forgotten.  In that instance, despite the absence of a right to be forgotten principle under Canadian law, the office simply decided that it was reading in a right to de-index search results into PIPEDA. The issue is currently before the courts.

In this case, the absence of meaningful updates to Canadian privacy law for many years has led to another exceptionally aggressive interpretation of the law by the OPC, effectively seeking to update the law through interpretation rather than actual legislative reform. Since PIPEDA’s inception, the accountability principle has been touted as a foundational aspect of the law, providing assurance that Canadians’ privacy is protected regardless of where it goes or who processes it. Yet the OPC seemingly now doubts that view, suggesting that there are risks associated with data that leaves the country.

The OPC is careful to note that it believes its position is consistent with Canada’s international trade obligations, but the issue could be subject to challenge. Article 14.11 of the CPTPP requires Canada (and all parties) to allow cross-border transfer of information by electronic means. The article states that:

Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 2 to achieve a legitimate public policy objective, provided that the measure:
(a) is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade; and
(b) does not impose restrictions on transfers of information greater than are required to achieve the objective.

The imposition of consent requirements for cross-border data transfers could be regarded as imposing restrictions greater than required to achieve the objective of privacy protection, given that PIPEDA has long been said to provide such protections through accountability without the need for this additional consent regime.

Regardless of the international trade implications, however, the OPC interpretation would have enormous implications for e-commerce and data flows with many organizations forced to rethink longstanding compliance policies. The proposal is sure to generate opposition with some understandably asking whether the issue would be more properly addressed by government policy within a national data strategy and privacy law reform, rather than an OPC guideline that if enacted is likely to end up in the Canadian courts.

The post Canadian Privacy Commissioner Signals Major Shift in Approach on Cross-Border Data Transfers appeared first on Michael Geist.

The LawBytes Podcast, Episode 6: Former CRTC Vice-Chair Speaks Out on the Plan to Regulate and Tax the Internet – “Dangerous Game to Play”

Michael Geist Law RSS Feed - Mon, 2019/04/08 - 09:05

For the better part of two decades, Canadian cultural groups have been pressing Canada’s telecom and broadcast regulator, the CRTC, to regulate and tax the Internet. The CRTC and successive governments consistently rejected the Internet regulation drumbeat, citing obvious differences with broadcast, competing public policy objectives such as affordable access, and the benefits of competition. That changed last year when the CRTC released Harnessing Change: The Future of Programming Distribution in Canada, in which it dramatically reversed its approach. Peter Menzies, a former CRTC commissioner and Vice-Chair of Telecommunications, joins this week’s LawBytes podcast to help sort through Cancon funding, Internet regulation, and the CRTC.

The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

Episode Notes:

Regulate Everything: The CRTC Goes All In On Internet Taxation and Regulation
Harnessing Change: The Future of Programming Distribution in Canada


CBC News, Tax on Netflix and Spotify proposed by CRTC
CBC Catherine Tait at Prime Time, @sdbcraig
CBC News, Ottawa’s fight with Netflix reignites age-old debate — what is Cancon and who should pay?
Standing Senate Committee on Transport and Communications, October 30, 2018
Canadian Heritage, Minister Joly – Creative Canada Speech / Ministre Joly – Discours Canada créatif
House of Commons, December 12, 2017

The LawBytes Podcast, Episode 6 (transcribed by Sonix)

Michael Geist: This is LawBytes, a podcast with Michael Geist

CBC News: Broadcast regulator is calling on the government to tax the likes of Netflix and Spotify among others. The CRTC has proposed that such companies including Internet service providers should be forced to fund the production of Canadian content. The intention is to help compensate for the declining contribution of cable and satellite providers.

Catherine Tait, CBC President: So unbelievable to be able to experience that kind of cultural sharing. So for this we are very grateful to Netflix. However, fast forward, to what happens after imperialism. And the damage that that can do to local communities. So all I would say is let us be mindful of how it is we as Canadians respond to global companies coming into our country.

Michael Geist: For the better part of two decades Canadian cultural groups have been pressing Canada’s telecom and broadcast regulator the CRTC to regulate and tax the Internet. As far back as 1998, the CRTC conducted hearings on new media in which groups argued that the dial up internet was little different from conventional broadcasting and should be regulated and taxed as such. The CRTC and successive governments consistently rejected the internet regulation drumbeat citing obvious differences with broadcast, competing policy objectives such as affordable access, and the benefits of competition. That seemed to change last year when the CRTC released Harnessing Change: the future of programming distribution in Canada, a report that dramatically reversed its approach. The CRTC reversal highlights competing visions of Canadian content regulation and the Internet. There are those such as CBC’s Catherine Tait who have likened Netflix to a cultural imperialist that requires a regulatory response. Others look at recent data that shows that when it comes to Canadian English language fictional programming, foreign financing is now larger than the funding from broadcasters and Canada Media Fund contributions combined. As one columnist recently concluded “the evidence doesn’t back up the case that extending the paternalistic Cancon regulatory model to foreign streaming services will do anything to save Canadian culture.” To help sort through Cancon funding, internet regulation and the CRTC, I’m joined on the podcast this week by Peter Menzies, a former CRTC commissioner and vice chair of telecommunications. Peter has been a reporter, newspaper publisher, regulator, and is now the director of the Royal Saskatchewan Museum

Michael Geist: Thanks so much for joining me on the podcast.

Peter Menzies: Thanks very much. It’s a it’s a pleasure and I’m flattered to be part of this.

Michael Geist: Well you’ve been one of the the people have been really outspoken when it comes to the CRTC and cultural issues so you’re really a perfect person to come on and talk about some of the things that are taking place and I thought we’d start by focusing on what seems like a recurring issue literally years and years and years of the same kind of issue being discussed when it comes to the prospect of new sources of revenue, new fees associated with either Internet streaming services or internet services more generally to fund Cancon and so we’ve seen this issue recur sometimes talking about it in the context of a so-called Netflix tax. Other times about broadband or wireless taxes all in the name of supporting the creation of Canadian content. It was back in the news recently with new data that showed that foreign services are significantly outspending Canadian broadcasters when it comes to at least English language drama.

CBC News: Canada’s eight billion dollar production industry is booming like never before. And another studio nearby asset is under construction for another Netflix series called Lock and Key. Foreign streaming services from Netflix to Amazon to Hulu are creating jobs here. But they make no contribution to the government sponsored funds.

Michael Geist: And so I guess the question that I want to start with is there a Cancon crisis in Canada.

Peter Menzies: There’s always a Cancon crisis in Canada in the minds of some people and in the minds of some other people there is never really a Cancon crisis in Canada. So it depends how you look at it in terms of that sort of sense I mean from a person lobbying for more funding for Cancon or for a person lobbying for more funding for anything it’s always to their advantage to have a crisis ongoing. And I think that’s been part of the culture of the Cancún discussion for at least 30 years. And it really goes into our history of being of protecting ourselves against the foreigners. I’ve used the phrase couple of times we’ve built this big beautiful wall between us and the United States to protect our culture from them. And now we’re having a lot of difficulty adjusting to the idea that walls aren’t what we need.

Michael Geist: What do you think we do need I guess just to jump right in in this in this new Internet based environment.

Peter Menzies: Well I mean adaptation becomes the first thing that gives a little context about 10 years ago. It’s probably at least 10 years ago or so was that the CMPA primetime conference in Ottawa. And I think it was Glen O’Farrell. But I stand to be corrected. But I was taking some questions and that sort of stuff and I remember asking him sort of regarding the Cancon subsidy and that sort of stuff. That’s sort of at what point in the future you know 25 years 30 years 50 years 100 years sort of thing do you see Cancon being able to be sustainable on its own.

Peter Menzies: And the response was never. And I realized then that for folks inside the system it was inconceivable for them that there could be something other than the system and that was the only way they could think. I mean they’re not bad people. It’s not necessarily a bad thought. But it was a limited thought. So what we need to do is move away I believe to have a better life for Cancon producers and exploit the whole world. We’ve been trying to serve a market of 35 million people split into two languages. So you have one market really of about 25 million people and another about 10 million people. Very small markets through subsidy and done that reasonably successfully for a long time. There is an English speaking and French speaking market out there in the world that we could serve. That has hundreds of millions if not billions of people in it. And that seems to me like a real opportunity that we would ignore at our peril.

Michael Geist: The CRTC for many years and you were obviously there for many years did not want to come close to kind of regulate regulated type solutions when it came to the Internet. They obviously played a key role in structuring this Cancon support model but that was based on conventional regular broadcast in the Internet space. They really took a hands off approach dating all the way back to the 1990s with the digital media exemption essentially the power to regulate. But choosing not to. Now that seemed to change last year with a report titled Harnessing change in which the current CRTC chair Ian Scott got behind Internet taxes and I know that he insists they aren’t taxes. He talks instead about contributions to the system.

Ian Scott: We examine the future of programming distribution in Canada in our Harnessing Change report prepared at the request of government and released in May of this year. This report asks a fundamental question: what can be done to support the production, discoverability and promotion of Canadian programming. Harnessing change concludes that new innovative approaches that would engage digital players are needed.

Michael Geist: I was curious about your thoughts on the report and what sure feels like a significant reversal in policy.

Peter Menzies: Yeah it is a significant reversal on policy. I mean it it went or at least approach and philosophy.

Peter Menzies: It went from you know sort of the discoverability summit and that idea to some of the directions encouraged by the previous commission under JP Blais and and for that matter supported by the Heritage Minister in many of her statements, Minister Joly, regarding the need to prepare Canada for the future and pushing for commitments that benefit our industries.

Melanie Joly: Today I’m announcing the first of these agreements on behalf of the government of Canada and Netflix. Under this agreement Netflix will create Netflix Canada, a permanent film and television production presence here in Canada the first time that the company has done so outside the United States. And building on the strong track record of investing in shows like Anne and Alias Grace with the CBC, Travellers with Showcase, and Frontier with Discovery. They have agreed to invest a minimum of five hundred million dollars in original productions in Canada in both official languages over the next five years.

Peter Menzies: Even the title Harnessing Change indicates that you’re trying to stop something you know it’s a King Canute style approach to things we are going to harness change rather than embracing change rather than adapting to change rather than exploiting change to our benefit. There’s all kinds of different ways you could look at it. So I mean I think that that approach I find very regressive and kind of sad because you can’t stop change. As to we meddling with the Internet and content on the Internet. That’s a very very dangerous game to play. The Internet, and that speaks to how the the CRTC’s affection for the broadcasting act, which is I mean they have to you have to fulfill it. It’s your job. But in comparison to things such as the Internet and telecommunications it distorts the argument. The Internet is not broadcasting the Federal Court has ruled on that it may carry video. But I mean everybody carries video. People go live and podcast themselves at an Eric Clapton concert. The Globe and Mail has video, National Post has nothing but video on its Web site. You are interfering in areas that you don’t belong. And the Internet is far far more than video. It’s speech, it’s academia, it’s tons of things. So I’m not sure they’ve thought that through. There are ways that they can manage things. Other than that I hope.

Michael Geist: I think that’s a really important point. Both the the widespread use of video itself by a range of services that we wouldn’t think of as being broadcasters in any any real sense and the fact that the Internet is used for so much more than than just video. I mean it’s striking a lot of the conversation has been around the prospect of these taxes and what it means for internet affordability and the like. But I think you’re right to point out that we’re really talking about the prospect of pretty extensive regulation by the CRTC of almost any Internet based service that could conceivably even include podcasts like this one. And so I suppose it begs the question though is the CRTC even the right venue for this kind of discussion and debate or is that something that’s better left to Parliament to sort through.

Peter Menzies: Well it’s absolutely left to Parliament. The last I heard the government of Canada was strongly defending the notion of net neutrality which I think is terrific.

Navdeep Bains: Let me be clear our government stands to support net neutrality. Mr Speaker we support an open Internet. We support the CRTC framework for net neutrality. Mr Speaker because we know an open Internet is critical for our economy and our democracy.

Peter Menzies: It’s a notion that should be defended. I mean it’s it’s a hill worth dying on and in a sense like in the sense like that because once you start messing with that you you begin to define the Internet as if it was cable and there’s there’s a real trend that you can pick up in the discussions. It comes from within the industry. It comes from within the CRTC that this whole internet fad you know it’s just kind of like it’s just the new cable right.

Peter Menzies: And it’s not. People should have no business. I mean it’s not that it should be the Wild West. The internet should be governed like the rest of the public square is governed. I mean there are hate speech laws, there are libel laws, there are defamation laws, there’s there’s all kinds of laws, there’s sexual exploitation laws, all the laws of the land should apply to the Internet. It should not be. It doesn’t have to be a wild west zone. But when it comes to regulation through regulators such as the CRTC, its sole role should be ensuring that the content, that the role of net neutrality is respected and that and when it comes to providing fair competitor access and items like that that the public that matter to the public but most of the public doesn’t know that it matters to them.

Michael Geist: Do you have a thought as to why we’ve see the CRTC shift in this way and is it simply a matter that regulators are going to regulate. And as it feels it’s in a sense power to regulate over conventional broadcasters where it had that power largely through licensing and and a more closed system. And it feels that evaporates. It extends over to the internet although even as I ask the question I know that for a very long time the CRTC resisted doing exactly that.

Peter Menzies: I mean my sense of it right now is that it’s kind of local politics. Minister Joly was and so was the preceding CRTC chair in his last year was being attacked by the cultural lobby, a large part of which is based out of Montreal, that did not like the changes that had been made. That did not like the approach moving forward and felt more comfortable moving you know advancing the cause of you know I’m conscious of the fact that I’m know talking about a lot of people at risk of generalizing about a lot of people here.

Peter Menzies: But let me just try to say that that specific group because there’s other groups I could mention that specific group is for them it’s much easier to have the outside world changed them for their world to change. So the solution to them has always been just put a tax on Netflix and other streaming services and everything will be fine. It’ll be just like 1985. The revenue we might lose through lower cable subscriptions will be replaced by streaming subscriptions and we’re all good.

Peter Menzies: And you know they won. Minister Joly is no longer, unfortunately in my view, is no longer minister. And the harnessing change is the new approach.

Michael Geist: You know when you talk about the kind of targeting that takes place Netflix as you suggest is frequently the target in Canada and I think at least in recent memory there is no more infamous incident than when CBC president Catherine Tate spoke to an industry conference earlier this year calling Netflix a new empire.

Catherine Tait, CBC President: I was thinking about the British Empire and how if you were there and you were the viceroy of India you would feel that you were doing only good for the people of India or similarly if you were in French Africa you would think I’m educating them. I’m bringing up the bring their resources to the world and I am helping them. There was a time where cultural imperialism was absolutely accepted and in fact if yo were a history student you would be proud of the contribution that these great empire escape. I would say we are at the beginning of a new empire.

Michael Geist: The industry often has discussed Netflix really in the context or with the vision of being a threat talking about an uneven playing field with the notion that benefit that Netflix benefits from an unregulated, untaxed service unlike some of its Canadian counterparts. Although I think there’s arguments that the level playing field issues often times swing the other way there’s all sorts of benefits that the regulated sector has that Netflix doesn’t. But it’s pretty clear that it’s a framing that has certainly caught the attention of policymakers and now it would seem the CRTC. Any thoughts on what if anything the regulatory world should look like for some of these online streaming services?

Peter Menzies: Well I mean obviously they should be collecting sales tax and contributing to the Treasury’s in that manner and in fact in Saskatchewan they are collecting the PSAT now so it obviously can be done they should be contributing to society just the just the way all businesses should be.

Peter Menzies: In terms of how they should be can. And I think that contribution is fine because in my perfect world you would actually attach cultural funding from these vehicles and it would come from general revenue and that would remove the risk of the telecom world being distorted by the broadcasting world abroad where you need cultural funding it could be provided straight through the federal Treasury rather than through whatever we want to call them taxes or fees on distribution platforms. There are a group of people and I met with some when one of my in my last year at the CRTC of producers who actually were encouraging us to continue to do nothing about Netflix because in their view Netflix was providing a lot of money was investing heavily in their industry in Canada.

Peter Menzies: They liked that and they didn’t want that to be chased away for them. That was a great advantage. It provided an additional path to for their production. I met a young fellow producer also in my last year who when we talked about the new rules just sort of shrugged and said Hey when we saw them we just called the staff in and said Okay guys things have changed and we have a new.

Peter Menzies: We have a new foundation and we can’t sell it to Netflix. We don’t make it. So it changed changed everything in that regard.

Peter Menzies: So there is a there are people who want to move out into the world and take advantage of a bigger world and you can do that through streaming platforms such as Netflix and others and let’s face it there’s there’s going to be a lot more. And I’m curious to know why. I don’t quite understand why Canadians haven’t sort of taken that bull by the horns and run with it a bit more.

Michael Geist: Yeah well perhaps it does come back to your one of your very early points in this conversation about walls and the notion of a challenge in competing with a streaming service that sees itself as a global player that now quite literally has content that people really want to access and view from around the world as opposed to a country where so much of the approach has long been defined by being limited within the national borders. You state it’s up to just a moment ago that that I want to drill down on for just a moment. That was to suggest that the right way to fund Cancon or cultural priorities ought not to be the kind of subsidy model that we’ve had for many many years especially through conventional broadcast but rather through general revenues. Can you can you expand a bit on on how you see this taking place in a sense. I think it’s suggesting that we are it’s not that we ought to extend these kinds of mandated contributions or taxes to Netflix and other streaming services. It’s that we ought to get out of the business altogether of using these kinds of fees as the way that we try to fund this kind of Canadian content.

Peter Menzies: Once you attach them to the cultural side they begin and you can see this and the risk and the Harnessing Change report you begin to define them as cultural carriers rather than just carriers and agnostic. And if you see them as cultural entities then you end up messing with them. And it perverts that that all those all those principles around net neutrality and that sort of stuff. So it’s a lot easier to get rid of that risk too and it wouldn’t just mitigate it. You would eliminate that risk by creating funding just funding directly from the federal treasury. And that’s entirely possible in the grand scheme of things. The sums are not insignificant but they’re not overwhelming cultural funding when it compares to other areas is it is a fairly modest. So that’s the that’s the view I take on that.

Michael Geist: So that’s certainly one alternative and we do see more and more people arguing that if the current system is diminishing in importance given the decreasing revenues for broadcasters obviously we’re seeing more money come in from foreign unregulated players but perhaps it’s time to rethink the system as a whole. And of course that’s part of what’s taking place with the launch of the broadcast and telecommunications legislative review panel the panel that was also sort of coming out came out of Minister Joly and Minister Bains talking about the prospect of a rethink of Canadian broadcast and telecommunications laws a preliminary report is expected in June the final one in early 2020. It holds the prospect of a real overhaul or at least recommendations of an overhaul on broadcast and telecom. If you were on the panel or perhaps asked to provide it with some advice what would you say?

Peter Menzies: Well I would say we would happen to move into some of those areas and I would think that we need to be more progressive in our approach. I mean I find the current approach of this to go back to something you said.

When we talk about the system I think there’s risk in these discussions of believing that the system is the industry that the system and the industry kind of you know are all one in terms of that and I’m not ignorant of the fact that they’re very closely tied but there is a world outside this walled garden that has so much opportunity into it. You know like you can spend your time being afraid that you will lose half of your market of 25 million Anglophone Canadians to foreign invaders or you can spend your time thinking about how you could maybe grab 10 percent of a market of 800 million people. I mean there are hundred and twenty five million anglophones in India right. If you can talk to producers of content aimed at at at the Indian market and people in the Indian diaspora and you know that’s the way people get it why would I aim. You know why would I ignore that market right. It makes no sense to me whatsoever that you would have an approach that continues to be defend this small market within which nobody will ever get super rich. I get that but that we should be going out into the world and and exploring those opportunities. So that would be the broad philosophy upon which I would like. I would encourage people to look at things because otherwise we just become walled in small and we become little Canadians. And I would like us to be big Canadians.

Michael Geist: Peter thanks so much for joining me on the podcast.

Peter Menzies: Thank you Michael it’s been a pleasure and the privilege

Michael Geist: The Government’s expert panel broadcast and telecommunications legislative review panel is expected to release an interim report in late June. Its final report and recommendations are due in January 2020.

Michael Geist: That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s L.A. W B Y TE S at P.O. Box dot com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.

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The post The LawBytes Podcast, Episode 6: Former CRTC Vice-Chair Speaks Out on the Plan to Regulate and Tax the Internet – “Dangerous Game to Play” appeared first on Michael Geist.

Supporting a More Competitive Canadian Wireless Market: Speak Out on Navdeep Bains’ Proposed CRTC Policy Direction

Michael Geist Law RSS Feed - Thu, 2019/04/04 - 11:42

Last month, Innovation, Science and Economic Development Minister Navdeep Bains took his most significant policy step to date to address telecommunications concerns by issuing a proposed policy direction to the CRTC based on competition, affordability, consumer interests, and innovation. As I noted at the time, the proposed policy direction will make a difference as those perspectives will become a more prominent part of the regulatory process that cannot be easily dismissed.

The comment period on the proposed policy direction closes next Monday (April 8th), offering the opportunity for Canadians to signal their support for a policy measure designed to make wireless services more competitive and affordable. I discussed the issue in this post and in my podcast with TekSavvy executive Andy Kaplan-Myrth. Both Open Media and TekSavvy have launched sites that make it easy to provide the government with comments. A Telus executive recently likened the Open Media effort to “yellow vesting”, an inflammatory comparison that suggests that the incumbent wireless companies will launch a full scale lobbying campaign against the measure, reminiscent of their 2013 effort to keep Verizon from entering the Canadian market where the companies were placed on an “immediate war footing.”

Given the longstanding need for a more competitive wireless market, the Bains measure deserves public support. Those concerned with the wireless market should take the time to read the policy direction and provide the government with their views before the deadline by writing directly or using the Open Media and TekSavvy participation websites.

The post Supporting a More Competitive Canadian Wireless Market: Speak Out on Navdeep Bains’ Proposed CRTC Policy Direction appeared first on Michael Geist.

The LawBytes Podcast, Episode 5: “A Huge Threat to How the Internet Functions Now”

Michael Geist Law RSS Feed - Mon, 2019/04/01 - 09:05

Most treaties are negotiated behind closed doors with no text made available until after a deal has been reached. Yet there is a treaty with enormous implications for the Internet, copyright, and broadcasting that has been hidden in plain sight for the better part of two decades. This week, the World Intellectual Property Organization resumes discussions in Geneva on a proposed Broadcasting Treaty. To introduce WIPO, the proposed treaty, and its implications, Jamie Love of Knowledge Ecology International joins this week’s LawBytes podcast. Love warns that the treaty could extend the term of copyright for broadcast content, create a wedge between broadcasters and Internet streaming services, and even result in new restrictions on the use of streaming video.

The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

Episode Notes:

KEI Broadcasting Treaty archives
WIPO Broadcasting Treaty brief


House of Commons, June 12, 2013
WIPO, Stevie Wonder Congratulates UN Delegates on Entry into Force of Marrakesh Treaty
WIPO, SCCR 37th Session
WIPO, Canada Joins Three Key WIPO Trademark Treaties

The post The LawBytes Podcast, Episode 5: “A Huge Threat to How the Internet Functions Now” appeared first on Michael Geist.

fifteen years

Fair Duty by Meera Nair - Sun, 2019/03/31 - 10:10

The Supreme Court’s decision of 4 March 2004, CCH Canadian v. Law Society of Upper Canada, ushered in a more progressive approach to copyright, by emphasizing that exceptions to copyright are a vital part of the system itself. The decision also coincided with the start of my doctoral research, at Simon Fraser University’s School of Communication. So it seemed only befitting to begin with CCH when I gave the keynote address last month at Balancing the scales: the role of fair dealing in Canadaan event organized by the Vancouver post-secondary community and hosted by Simon Fraser University.

One of the more fascinating aspects of studying systems of copyright is its variety of entry points. Enthusiasts of business, communication, economics, ethics, history, human rights, innovation, international relations, literature, philosophy, technology, and law, can all find a familiar theme within the ambit of copyright. Such an interdisciplinary nature is an asset; there are many signposts by which to navigate the route to effective public policy.

Yet copyright remains predominantly mired in the bland pronouncement of copyright is an author’s right. As to what that right means, whether copyright can achieve the expectation of authorial well-being implicit to the language of rights, that discussion is too often shunted aside. Complicating matters further in Canada is the propensity to wrap copyright in a maple leaf; a false, but politically effective, message portrays Canadian literature as dying and asserts that only more copyright can save it.

For my address, I took a little inspiration from Margaret Atwood and drew attention to the events that shaped both copyright and publishing in Canada during the late nineteenth-century. Namely, that those norms of copyright benefited only Britain and America, and deterred Canada from devising a system that would serve its own readers, writers, and publishers. The consequences of those years continue to be felt today; we cannot escape our own history. Fortunately, Canada’s ongoing success in literature is also a product of history, one carved outside of the regime of copyright.

The entire event is available here. (My presentation was the last one; click on Show Media and select: balancing_scales_role(4).mp4.)

On a personal note; that day in Vancouver, a dear friend was missing from the audience. James Woodburn Dean (1941-2019) died earlier in February. James, professor emeritus of SFU’s economics department, was an extraordinary champion of all students, regardless of their subject. His capacity for kindness was, and will remain, unparalleled to those who received it. As has been written of James, “He believed in the power of education and music and encouraged others to take bold steps.” To the extent that I can claim some success as a scholar, I am indebted to James for his indefatigable confidence in my ideas and unstinting friendship that continued long after completion of my doctorate.

Rest in peace James.

Routing Detours: Can We Avoid Nation-State Surveillance?

Freedom to Tinker - Tue, 2016/08/30 - 18:44
Since 2013, Brazil has taken significant steps to build out their networking infrastructure to thwart nation-state mass surveillance.  For example, the country is deploying a 3,500-mile fiber cable from Fortaleza, Brazil to Portugal; they’ve switched their government email system from Microsoft Outlook to a state-built system called Expresso; and they now have the largest IXP […]

Differential Privacy is Vulnerable to Correlated Data — Introducing Dependent Differential Privacy

Freedom to Tinker - Fri, 2016/08/26 - 09:57
[This post is joint work with Princeton graduate student Changchang Liu and IBM researcher Supriyo Chakraborty. See our paper for full details. — Prateek Mittal ] The tussle between data utility and data privacy Information sharing is important for realizing the vision of a data-driven customization of our environment. Data that were earlier locked up […]

Language necessarily contains human biases, and so will machines trained on language corpora

Freedom to Tinker - Wed, 2016/08/24 - 16:32
I have a new draft paper with Aylin Caliskan-Islam and Joanna Bryson titled Semantics derived automatically from language corpora necessarily contain human biases. We show empirically that natural language necessarily contains human biases, and the paradigm of training machine learning on language corpora means that AI will inevitably imbibe these biases as well. Specifically, we look at […]

Security against Election Hacking – Part 2: Cyberoffense is not the best cyberdefense!

Freedom to Tinker - Thu, 2016/08/18 - 09:00
State and county election officials across the country employ thousands of computers in election administration, most of them are connected (from time to time) to the internet (or exchange data cartridges with machines that are connected).  In my previous post I explained how we must audit elections independently of the computers, so we can trust the […]

Security against Election Hacking – Part 1: Software Independence

Freedom to Tinker - Wed, 2016/08/17 - 09:27
There’s been a lot of discussion of whether the November 2016 U.S. election can be hacked.  Should the U.S. Government designate all the states’ and counties’ election computers as “critical cyber infrastructure” and prioritize the “cyberdefense” of these systems?  Will it make any difference to activate those buzzwords with less than 3 months until the […]

Can Facebook really make ads unblockable?

Freedom to Tinker - Thu, 2016/08/11 - 17:18
[This is a joint post with Grant Storey, a Princeton undergraduate who is working with me on a tool to help users understand Facebook’s targeted advertising.] Facebook announced two days ago that it would make its ads indistinguishable from regular posts, and hence impossible to block. But within hours, the developers of Adblock Plus released an […]

The workshop on Data and Algorithmic Transparency

Freedom to Tinker - Wed, 2016/08/10 - 09:57
From online advertising to Uber to predictive policing, algorithmic systems powered by personal data affect more and more of our lives. As our society begins to grapple with the consequences of this shift, empirical investigation of these systems has proved vital to understand the potential for discrimination, privacy breaches, and vulnerability to manipulation. This emerging […]

A response to the National Association of Secretaries of State

Freedom to Tinker - Tue, 2016/08/09 - 08:11
Election administration in the United States is largely managed state-by-state, with a small amount of Federal involvement. This generally means that each state’s chief election official is that state’s Secretary of State. Their umbrella organization, the National Association of Secretaries of State, consequently has a lot of involvement in voting issues, and recently issued a […]

Supplement for Revealing Algorithmic Rankers (Table 1)

Freedom to Tinker - Fri, 2016/08/05 - 05:35
Table 1: A ranking of Computer Science departments per csrankings.org, with additional attributes from the NRC assessment dataset. Here, the average count computes the geometric mean of the adjusted number of publications in each area by institution, faculty is the number of faculty in the department, pubs is the average number of publications per faculty […]

Revealing Algorithmic Rankers

Freedom to Tinker - Fri, 2016/08/05 - 05:35
By Julia Stoyanovich (Assistant Professor of Computer Science, Drexel University) and Ellen P. Goodman (Professor, Rutgers Law School) ProPublica’s story on “machine bias” in an algorithm used for sentencing defendants amplified calls to make algorithms more transparent and accountable. It has never been more clear that algorithms are political (Gillespie) and embody contested choices (Crawford), […]

Election security as a national security issue

Freedom to Tinker - Wed, 2016/08/03 - 13:11
We recently learned that Russian state actors may have been responsible for the DNC emails recently leaked to Wikileaks. Earlier this spring, once they became aware of the hack, the DNC hired Crowdstrike, an incident response firm. The New York Times reports: Preliminary conclusions were discussed last week at a weekly cyberintelligence meeting for senior officials. […]

Brexit Exposes Old and Deepening Data Divide between EU and UK

Freedom to Tinker - Mon, 2016/07/25 - 10:45
After the Brexit vote, politicians, businesses and citizens are all wondering what’s next. In general, legal uncertainty permeates Brexit, but in the world of bits and bytes, Brussels and London have in fact been on a collision course at least since the 90s. The new British prime minister, Theresa May, has been personally responsible for […]

Pokémon Go and The Law: Privacy, Intellectual Property, and Other Legal Concerns

Freedom to Tinker - Tue, 2016/07/19 - 10:59
Pokémon Go made 22-year-old Kyrie Tompkins fall and twist her ankle. “[The game]  vibrated to let me know there was something nearby and I looked up and just fell in a hole,” she told local news outlet WHEC 10. So far, no one has sued Niantic or The Pokémon Company for injuries suffered while playing […]

A Peek at A/B Testing in the Wild

Freedom to Tinker - Thu, 2016/05/26 - 09:40
[Dillon Reisman was previously an undergraduate at Princeton when he worked on a neat study of the surveillance implications of cookies. Now he’s working with the WebTAP project again in a research + engineering role. — Arvind Narayanan] In 2014, Facebook revealed that they had manipulated users’ news feeds for the sake of a psychology study […]
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