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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No longer.

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

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

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

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

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

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

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

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

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

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

On compromising app developers to go after their users

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

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

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

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

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

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

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

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

The end result?

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

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

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

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

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

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

Fixing the Digital Privacy Act: My Bill S-4 Appearance Before the Industry Committee

Michael Geist Law RSS Feed - Wed, 2015/03/11 - 10:32

Yesterday I appeared before the Standing Committee on Industry, Science and Technology to discuss Bill S-4, the Digital Privacy Act. The discussion focused on a wide range of concerns, including the shortcomings in the security breach disclosure rules and the need for greater enforcement powers for the Privacy Commissioner of Canada. Metro News covered the appearance.  My opening remarks are posted below.  I’ll link to the full transcript once available.

Appearance before the Standing Committee on Industry, Science and Technology, March 10, 2015

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. I have appeared many times before committees on various digital policy issues, including privacy. I appear today in a personal capacity representing only my own views.

I previously appeared before the Senate committee that studied Bill S-4. My remarks then focused on three issues:

1.    I offered my support for several important provisions in the bill, particularly the additional clarification for the standard of consent, the extension of the deadline to take cases to the Federal Court, and the expansion of the powers for the Privacy Commissioner to publicly disclose information related to findings or other privacy matters.
2.    I also identified issues that need amendment or improvement
a.    security breach disclosure rules, particularly the abandonment of a two-step disclosure process
b.    compliance agreements, which should be strengthened with penalties or order making power
c.    expansion of voluntary disclosure of personal information between private sector organizations.
3.    I discussed missing provisions, namely need for mandatory transparency reporting.

My time is limited this morning, so I’m going delve deeper into two issues: the voluntary disclosure provision and transparency reporting.

1.    Expansion of voluntary disclosure

Bill S-4 expands the possibility of personal information disclosure without consent or court oversight to anyone, not just law enforcement. As you know, the bill features a provision that grants organizations the right to voluntarily disclose personal information without the knowledge or consent of the affected person and without a court order to other non-law enforcement organizations provided they are investigating a breach of an agreement or legal violation (or the possibility of a future violation).

This broadly worded exception will allow companies to disclose personal information to other companies or organizations without court approval. This runs counter to court decisions from the Canadian courts, which have sought to establish clear limits and oversight over such disclosures, as well as the spirit of the Supreme Court of Canada’s Spencer decision, which ruled that Canadians have a reasonable expectation of privacy with such information.  In fact, if we examine the leading cases on disclosure of customer information in private litigation (Warman v. Fournier, BMG v. Doe, Voltage v. Doe), virtually all emphasize the need for safeguards before customer’s information is disclosed, even as part of an investigation.

A House of Commons committee did recommended a similar reform in 2006, but that recommendation was rejected at the time by both the Conservative government and the Privacy Commissioner of Canada.

I recognize that some have suggested that Alberta and British Columbia have similar provisions and that no harm has resulted from their approach.

I’m not so sure. I don’t think anyone can reasonably conclude that the provincial approach has not resulted in privacy risks or harm. It is important to bear in mind that the disclosure itself is not necessarily revealed to the affected individual. Indeed, the point is often to disclose without knowledge or consent, meaning the affected individual will not know that their information has been disclosed. Asking for evidence of harm, when the harmful conduct is kept secret from those who are affected, creates an impossible evidentiary burden.

In fact, even if you believe that the disclosures might come to light through court processes should it reach that point (and note the disclosures can happen without it ever reaching that point), provincial privacy law rarely involves the issues where these cases do come to light.  It is no coincidence that the lead cases on personal information disclosure arise from PIPEDA as these cases often involve telecom companies, Internet service providers, Internet websites and banks – all largely governed by PIPEDA. In other words, the existence of the provision at the provincial level tells us very little about how it will be used under PIPEDA.

The reform here is clear. There is no compelling need for the change – the current system has been in place for many years and dozens of organizations are covered by the investigative bodies exception. That may have been a hassle ten years ago, but reform now makes little sense.  Further, if there are specific industries with concerns, those can be addressed through a narrow amendment. The broad provision opening the door to the massive expansion of warrantless, non-notified voluntary disclosures should be removed.

Transparency Reporting

The lack of transparency and reporting requirements associated with personal information disclosures is a glaring omission from the bill and should be addressed. The stunning revelations last year about over 1 million requests and 750,000 disclosures of personal information – the majority without court oversight or warrant – points to an enormously troubling weakness in Canada’s privacy laws. More recently, a Privacy Commissioner of Canada audit into RCMP requests for subscriber information was abandoned after auditors found that the data was inaccurate and incomplete.

Some companies such as Rogers and Telus have begun issuing transparency reports, but others – most notably Bell – have not. Most Canadians have no awareness of these disclosures.

This can be addressed through two reforms.  First, the law should require organizations to publicly report on the number of disclosures they make without knowledge or consent, and without judicial warrant. This information should be disclosed in aggregate every 90 days.  Second, organizations should be required to notify affected individuals within a reasonable time period of the disclosure.

The adoption of these provisions would be an important step forward in providing Canadians with greater transparency about the use and disclosure of their personal information.

I welcome your questions.

The post Fixing the Digital Privacy Act: My Bill S-4 Appearance Before the Industry Committee appeared first on Michael Geist.

Behind the Scenes of Ontario’s Campaign for a Netflix Tax

Michael Geist Law RSS Feed - Tue, 2015/03/10 - 08:37

The prospect of a “Netflix tax” will be back in the spotlight this week as Canadian Radio-television and Telecommunications Commission chair Jean-Pierre Blais unveils the CRTC’s latest round of rulings stemming from its review of broadcast policy. While it is unlikely that the commission will impose a new fee on Netflix subscribers to support the creation of Canadian content, it will not be for lack of lobbying on the issue.

Despite the fact that a Netflix tax would yield less than one per cent of the annual expenditures on Canadian television financing (about $15 million dollars in support for a sector that spent $2.3 billion last year), most content groups called for mandatory Canadian content contribution funding from online video providers during the CRTC’s TalkTV hearings. My weekly technology law column (Toronto Star version, homepage version) notes that amidst the clamour for new funding, there was one voice that attracted the most attention – the Government of Ontario.

Ontario’s public position on the need for a Netflix tax was premised on creating a “level playing field” with conventional broadcasters by expanding the regulation of new media services. After Canadian heritage minister Shelly Glover flatly rejected the Ontario proposal last September (“We will not allow any moves to impose new regulations and taxes on Internet video that would create a Netflix and YouTube tax.”), Ontario Minister of Tourism, Culture and Sport Michael Couteau tried to backtrack. In fact, a spokesperson claimed that “the [Ontario] government is not advocating any CanCon changes, or that any specific regulations be imposed on new media TV, until more evidence is available.”

Yet according to documents obtained under the Freedom of Information and Protection of Privacy Act, Ontario government officials spent months developing a submission in support of a Netflix tax. Work on the issue started in early 2014 as the government retained McCarthy Tetrault, a leading Bay Street law firm, to produce a report on policy options, and hired Rita Cugini, a former CRTC commissioner, to provide editorial services. By March 2014, an internal government presentation identified the government’s preliminary position as supporting expanded regulation of new media TV, including Cancon requirements and increased regulation of foreign online video providers.

Several months later, the Ontario position solidified with a recommendation that officials acknowledged “represents a significant change to the regulatory system.” The recommendation?  Expand new media TV regulation, despite expectations that such a change would be opposed by virtual all non-creator stakeholders, including consumers and broadcasters.

Assistant deputy culture minister Kevin Finnerty presented the position to the CRTC in early September, resulting in a political firestorm that internal documents reveal left officials scrambling to engage in damage control. Initial drafts of speaking lines for Premier Kathleen Wynne sought to downplay the government’s position, stating that the minister had revised his position and was not advocating for any Cancon changes or regulations. Those lines were amended to state that the government was supportive of a separate proceeding on the issue.

However, the weakness of the Ontario government position could be found in one other speaking line, which stated “the ministry is recommending an approach that responds to the wants and needs of Canadian consumers while continuing to promote a wide variety of programming, programming services and Canadian content.”

Yet the reality is that the Ontario government spent months developing a position in which the interests of consumers were entirely ignored. Internal documents repeatedly emphasized support for more regulation, while admitting that consumers would be unhappy with change. This week the CRTC is likely to side with consumers, effectively rejecting an expensive Ontario government campaign to convince the regulator to establish a Netflix tax.

The post Behind the Scenes of Ontario’s Campaign for a Netflix Tax appeared first on Michael Geist.

Behind the Scenes of Ontario’s Campaign for a Netflix Tax

Michael Geist Law RSS Feed - Tue, 2015/03/10 - 08:35

Appeared in the Toronto Star on March 7, 2015 as Behind the Scenes of Ontario’s Campaign for a Netflix Tax

The prospect of a “Netflix tax” will be back in the spotlight this week as Canadian Radio-television and Telecommunications Commission chair Jean-Pierre Blais unveils the CRTC’s latest round of rulings stemming from its review of broadcast policy. While it is unlikely that the commission will impose a new fee on Netflix subscribers to support the creation of Canadian content, it will not be for lack of lobbying on the issue.

Despite the fact that a Netflix tax would yield less than one per cent of the annual expenditures on Canadian television financing (about $15 million dollars in support for a sector that spent $2.3 billion last year), most content groups called for mandatory Canadian content contribution funding from online video providers during the CRTC’s TalkTV hearings. Amidst the clamour for new funding, there was one voice that attracted the most attention – the Government of Ontario.

Ontario’s public position on the need for a Netflix tax was premised on creating a “level playing field” with conventional broadcasters by expanding the regulation of new media services. After Canadian heritage minister Shelly Glover flatly rejected the Ontario proposal last September (“We will not allow any moves to impose new regulations and taxes on Internet video that would create a Netflix and YouTube tax.”), Ontario Minister of Tourism, Culture and Sport Michael Couteau tried to backtrack. In fact, a spokesperson claimed that “the [Ontario] government is not advocating any CanCon changes, or that any specific regulations be imposed on new media TV, until more evidence is available.”

Yet according to documents obtained under the Freedom of Information and Protection of Privacy Act, Ontario government officials spent months developing a submission in support of a Netflix tax. Work on the issue started in early 2014 as the government retained McCarthy Tetrault, a leading Bay Street law firm, to produce a report on policy options, and hired Rita Cugini, a former CRTC commissioner, to provide editorial services. By March 2014, an internal government presentation identified the government’s preliminary position as supporting expanded regulation of new media TV, including Cancon requirements and increased regulation of foreign online video providers.

Several months later, the Ontario position solidified with a recommendation that officials acknowledged “represents a significant change to the regulatory system.” The recommendation?  Expand new media TV regulation, despite expectations that such a change would be opposed by virtual all non-creator stakeholders, including consumers and broadcasters.

Assistant deputy culture minister Kevin Finnerty presented the position to the CRTC in early September, resulting in a political firestorm that internal documents reveal left officials scrambling to engage in damage control. Initial drafts of speaking lines for Premier Kathleen Wynne sought to downplay the government’s position, stating that the minister had revised his position and was not advocating for any Cancon changes or regulations. Those lines were amended to state that the government was supportive of a separate proceeding on the issue.

However, the weakness of the Ontario government position could be found in one other speaking line, which stated “the ministry is recommending an approach that responds to the wants and needs of Canadian consumers while continuing to promote a wide variety of programming, programming services and Canadian content.”

Yet the reality is that the Ontario government spent months developing a position in which the interests of consumers were entirely ignored. Internal documents repeatedly emphasized support for more regulation, while admitting that consumers would be unhappy with change. This week the CRTC is likely to side with consumers, effectively rejecting an expensive Ontario government campaign to convince the regulator to establish a Netflix tax.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

The post Behind the Scenes of Ontario’s Campaign for a Netflix Tax appeared first on Michael Geist.

Raising the Broadcast White Flag: What Lies Behind Bell’s Radical Plan to Raise TV Fees, Block Content, Violate Net Neutrality & Fight Netflix

Michael Geist Law RSS Feed - Mon, 2015/03/09 - 10:18

Kevin Crull, Bell Media’s President delivered a much-anticipated keynote speech at the Prime Time in Ottawa conference on Friday. Titled “The New Reality: Broadcasting in Canada”, Crull’s claim was that the new reality for broadcasting in Canada is unsustainable and requires massive regulatory change. While Crull argued that Bell doesn’t want protection (in fact, incredibly claimed that a company that has benefited from foreign investment restrictions, genre protection, and simultaneous substitution has never had protection), he proceeded to outline a series of radical reforms that would raise television fees, block access to U.S. channels, violate net neutrality rules, and make Netflix less attractive to consumers. Couched in terms of “level playing fields” and “secure rights markets”, the speech was fundamentally an admission that given the competitive challenges, Bell’s hope is for a regulatory overhaul.

The key slide within the presentation can be found here. Crull certainly spoke about creating great content, though on the previous day Bell executives cautioned against programs that are “too Canadian.” The major focus of Crull’s talk wasn’t on content creation – the overwhelming majority of Bell Media’s leading programs are licensed from U.S. broadcasters – but rather on proposed changes to the regulatory framework.

Bell Calls for New TV Fees and Less Consumer Choice

Crull’s talk renewed a call for payments for over-the-air television channels. This is an old issue that the conventional broadcasters regularly raise, only to lose time and again. Many will recall the battle several years ago pitting the “TVTax” vs. “Local TV Matters” over whether there should be an additional fee paid by cable and satellite subscribers for conventional channels. The issue ended up at the Supreme Court of Canada, which ruled against the payments in 2012. If Crull and Bell Media get their way, the debate will start again with lobbying pressure to enact legislative changes to allow for a new TV tax.

Crull and Bell Media also want U.S. broadcasters blocked from Canadian cable and satellite packages. [While Shaw (Global) has not asked for U.S. signals to be blocked, an executive raised similar concerns at a conference a week earlier, suggesting that if we really cared about the Canadian system, we would have blocked U.S. signals years ago.] Crull framed the issue as critical to creating a secure rights market, since Bell Media licenses U.S. programs and feels that competition from U.S. channels showing the same program is unfair. Crull acknowledged that simultaneous substitution (substituting the U.S. feed for the Canadian feed) provides some protection but warned that it is an insufficient solution (plus the CRTC has ordered a ban on simsub for the Super Bowl starting in 2017). I’ve argued that simsub is becoming less important and Crull seems to confirm it, seeking to do away with it altogether by blocking access to U.S. content.

The Bell position is remarkable since blocking access to channels to which Canadians have had access for decades (and which was the foundation of building Canada’s cable systems) is an obvious political and policy non-starter. Bell is arguing for less choice for consumers, claiming that Canadians should be satisfied with access to the programs it (and other Canadian broadcasters) licence. If anything, the Internet is leading to greater choice and options for Canadians that want access to U.S. programs. Blocking content feels like the last refuge of a company that simply cannot compete with greater consumer choice, particularly with the imminent arrival of pick-and-pay channels. Consumers will soon be able to pick the channels they want to purchase alongside new ways (Internet streaming, over-the-top video services, iTunes downloads) of accessing U.S. programming. Bell somehow thinks the solution to these options is to create less choice by blocking access to popular U.S. channels on cable and satellite services.

Defending Net Neutrality Violations

Bell wants to overturn the CRTC decision on its Mobile TV service, arguing that it can’t offer it unless it has a competitive advantage by offering access that does not count against consumers’ monthly data caps. In other words, it can’t compete with the Internet, which offers a far richer and broader array of content than licensed mobile TV services. The CRTC’s concern was that disadvantaging competitive services would reduce innovation and consumer choice:

the Commission finds that the preference given in relation to the transport of Bell Mobility’s and Videotron’s mobile TV services to subscribers’ mobile devices, and the corresponding disadvantage in relation to the transport of other audiovisual content services available over the Internet, will grow and will have a material impact on consumers, and other audiovisual content services in particular. As an example, it may end up inhibiting the introduction and growth of other mobile TV services accessed over the Internet, which reduces innovation and consumer choice.

This is net neutrality 101 and countries such as the Netherlands have experienced the benefits of net neutrality rules with respect to online video. In fact, researchers have found that countries with restrictive data caps are particularly vulnerable to “zero-rating” plans such as that offered by Bell. Crull made it clear that Bell will withdraw the service if cannot discriminate against competing services with respect to data charges.

Fighting a Losing Battle with Netflix

Crull’s talk made it readily apparent that Bell is desperate to counter the popularity of Netflix. Crull also framed this concern as a rights market issue, stating earlier in the conference that Netflix had an artificial business model with one-third of its business based on piracy. The claims of piracy refer to Canadians that access U.S. Netflix using a virtual private network. Leaving aside the fact that this hardly constitutes piracy, the real concern for Bell surely isn’t that some Canadians access U.S. Netflix. It is that Bell is struggling to compete with Netflix. Indeed, Crull also stated that “$8 or $9 a month doesn’t pay for the content that people are enjoying today. It just doesn’t pay for it.” That may be true in Bell’s business model, but it is not true for Netflix, which operates globally and generates far larger revenues and spends far more on content than Bell possibly could.

The claim that access to U.S. Netflix is a major problem for Bell just doesn’t add up. First, everyone agrees that Netflix has millions of Canadian subscribers who do not access U.S. Netflix. This is a big business that will steadily lead to more cord-cutting regardless of access to some additional titles through the U.S.  Further, there are many programs that Netflix licenses that are accessible on both the U.S. and Canadian services with VPN use irrelevant for the purposes of rights.

Second, the content on Netflix – whether Canadian or U.S. – rarely competes directly with CTV or other Bell channels. Netflix offers original content, movies, and television shows that have already aired on conventional television. That is not the Bell model for its broadcast services. The two may compete for viewers, but they are watching different things. Even if there were Canadians who watched only U.S. Netflix and only programs not available in Canada, they still would have little to no overlap with CTV or Bell’s specialty services.

Third, Bell now offers CraveTV and it is true that it may obtain exclusive licenses for content in Canada. Yet Crull admitted during the conference that CraveTV will never make money. It is not designed as a standalone service to compete with Netflix. Rather, it is designed to encourage viewers to maintain their satellite packages by adding an online video component for a few dollars per month. In fact, CraveTV has positioned itself by promoting content such as Seinfeld or HBO programs, shows that cannot be found on U.S. Netflix.

Since Bell struggles to compete with Netflix, it is left to find ways to make the service less attractive to Canadian consumers. Crull was careful not to call for blocking VPN use (as a Rogers executive did), instead calling on Netflix to use different mechanisms such as credit card address to identify non-U.S. subscribers. This suggestion is reminiscent of the failed attempts to stop Canadians from accessing U.S. satellite services many years ago. Netflix will have no interest in making the change nor should they. It will stop those that access U.S. Netflix once rights holders stop licensing content on that condition, something that has presumably yet to happen.

Bell announced that it completed its $3.2 billion acquisition of CTV on April 1, 2011. Less than four years later, company executives say that their business is unsustainable and effectively admit that they cannot compete. In most sectors, that would be grounds for unhappy shareholders and corporate change. In the Bell world, it means intense lobbying for radical regulatory reform to raise television fees, block content, violate net neutrality, and fight Netflix.

The post Raising the Broadcast White Flag: What Lies Behind Bell’s Radical Plan to Raise TV Fees, Block Content, Violate Net Neutrality & Fight Netflix appeared first on Michael Geist.

Threshold signatures for Bitcoin wallets are finally here

Freedom to Tinker - Sun, 2015/03/08 - 09:38
Today we are pleased to release our paper presenting a new ECDSA threshold signature scheme that is particularly well-suited for securing Bitcoin wallets. We teamed up with cryptographer Rosario Gennaro to build this scheme. Threshold signatures can be thought of as “stealth multi-signatures.” Previously, I motivated the need for threshold signatures to increase Bitcoin wallet […]

Misuse of Canada’s Copyright Notice System Continues: U.S. Firm Sending Thousands of Notices With Settlement Demands

Michael Geist Law RSS Feed - Thu, 2015/03/05 - 10:43

The launch of the Canadian copyright notice system earlier this year raised serious concerns as Rightscorp, a U.S.-based anti-piracy company, sent notices that misstated Canadian law and demanded that users pay to settle claims. The misuse of the Canadian system was the result of the government’s failure to establish regulations prohibiting misleading content or the use of notice-and-notice to demand settlements.  Despite more than a year of work on potential regulations – including possible costs to rights holders for sending notifications – Industry Minister James Moore abandoned the process, implementing the system with no costs, no limitations on notice content, no restrictions on settlement demands, and no sanctions for the inclusion of false or misleading information. The government’s backgrounder says that the law “sets clear rules on the content of these notices”, however, it does not restrict the ability for rights holders to include information that goes beyond the statutory minimum.

The furor over the Rightscorp notices died down in recent weeks, but now another U.S. anti-piracy firm is flooding the Canadian market with thousands of notices, all seeking payment for alleged infringements. CEG TEK, a well-known U.S. firm, is sending notices that reference Canadian copyright law, but use the notice-and-notice system to pressure recipients into paying large settlements. A blog reader sent along a sample notice posted below (TekSavvy has posted a similar one they received).

The notice raises many concerns. First, CEG TEK is using the Canadian notice system to send thousands of demand letters at no cost. In fact, the cost is effectively borne by consumers, since Internet providers are required to forward the notifications and will ultimately pass along the charges in the form of higher access fees. The government was asked to include a fee, but having declined to do so, effectively invited abuse of the system.

Second, the notice references Canadian copyright law, but still may leave users with an inaccurate impression. Users’ personal information has not been disclosed (ie. CEG TEK does not know who receives the notices unless the recipient tells them by settling), the settlement demands (which are apparently US$150 per notice) bear no correlation to a likely award, the maximum statutory damages of C$5000 is for all infringements (not per infringement as implied in the notice), and the likelihood of non-statutory damages referenced in the notice is incredibly remote.

All of this could have been avoided had the government established regulations with the notice-and-notice system as many stakeholders urged Moore to do. Instead, the notice is system is again being abused, leading to significant ISP costs and settlement demands to thousands of Canadians. The solution is obvious: implement the missing regulations by establishing an appropriate fee for forwarding notices, prohibit the use of notices to demand settlements, and give ISPs the leeway to refuse to forward notices where they contain misleading or inaccurate information.

The sample CEG TEK notice is posted below:

Pursuant to the provisions of Sections 41.25 and 41.26 of the Canada Copyright Act, please electronically forward as soon as feasible the entire copyright infringement notice set forth below to the ACCOUNT HOLDER OF IP ADDRESS xxx.xxx.xxx.xxx at 2015-01-31 xx:xx North American Eastern Time and inform us on behalf of Rights Owner once it has been forwarded or (if applicable) the reason it was not possible for you to do so.***


February 26, 2015


NOTICE TO MANAGED NETWORK SYSTEMS ACCOUNT HOLDER
IP ADDRESS xx.xx.xx.xx at 2015-01-31 xx:xx North American Eastern Time
Re: Notice of Unauthorized Use of Copyright Owned by Paperstreet Media LLC, Case #: XXXXX


This notice is intended solely for the primary Managed Network Systems service account holder.
 CEG TEK International (“CEG”) is the agent for Paperstreet Media LLC (hereinafter “Rights Owner”) whose address is 14 NE 1st Ave Suite 304, Miami, FL 33132, US. All communications with Paperstreet Media LLC with respect of this notice should be made to our attention as its agent. CEG’s contact information is shown below.
 Rights Owner owns all right, title and interest, including copyrights, in and to the work listed below (hereinafter the “Work”). (Some individuals may find certain words in titles of works to be offensive. CEG apologizes in advance if this is the case.)
Your Internet account has been identified as having been used in the unauthorized copying, performance, and/or distribution, via peer-to-peer sharing, of the Work listed below. (Note that the time/date noted is the time/date that the unauthorized copying was identified. The actual downloading, copying, and/or distribution through your Internet account may have begun or occurred significantly earlier.)


Copyright Owner: Paperstreet Media LLC
Unauthorized File Name: *****mp4 
Unauthorized Hash: xxxxx Unauthorized File Size: xxx Unauthorized Protocol: BitTorrent Timestamp: 2015-01-31 xx:xx North American Eastern Time Unauthorized IP Address: ***.*.***.*** Unauthorized Port: 51413
The following files were included in the unauthorized copying, performance, and/or distribution:
File 1: ****.mp4


Paperstreet Media LLC is the sole and exclusive owner and distributor of the Work in Canada, and at no time have you, or anyone using your account, received authorization or consent to download or distribute Rights Owner’s exclusive property.

Your ISP has forwarded this notice to you pursuant to provisions of the Canada Copyright Act.

In Canada, the unauthorized copying, performance, and/or distribution of Rights Owner’s Work is illegal and is subject to civil sanctions (with statutory damages of up to $5,000 or non-statutory damages that could be higher) and/or criminal sanctions, and is a violation of the Canada Copyright Act (R.S.C., 1985, c. C-42).  The recent amendments to the Copyright Act, which came into force on November 2012, have confirmed Rights Owner’s right to have its copyright protected in Canada.

Moreover, such copying, performance and/or distribution of unauthorized works may also violate (i) the Berne Convention for the Protection of Literary and Artistic Works, (ii) the Universal Copyright Convention, (iii) bilateral treaties with other countries (including Canada), and/or (iv) the copyright laws of Canada.

If you have questions about your legal rights, you should consult with your own legal counsel (i.e., barrister, solicitor, lawyer, and/or attorney).

CEG HAS BEEN AUTHORIZED BY RIGHTS OWNER TO OFFER A SETTLEMENT SOLUTION TO RESOLVE THIS MATTER AND PREVENT LEGAL ACTION.

You have until Saturday, March 28, 2015 to access the settlement offer and settle online.  To access the settlement offer, please visit https://www.copyrightsettlements.com/ and enter Case #: xxxx and Password: xxx. To access the settlement offer directly, please visit https://www.copyrightsettlements.com/?u=xxxxx&p=xxx

Settlement Information: 
Direct Settlement Link: https://www.copyrightsettlements.com

If this matter is not resolved by the date shown above, the original settlement offer will no longer be an option and any future resolution may require an increased payment from you.
In the event that Rights Owner proceeds with legal action against you, you will be required to produce all relevant documents, including electronic documents and files that bear on Rights Owner’s claim against you.  Until this matter is resolved, whether by settlement or otherwise, we require you to accept this as written notice to preserve any and all hard drives or other means of electronic storage used with your above referenced IP address and to take no steps whatsoever to remove, erase, discard, conceal, destroy or delete from any means of electronic storage any evidence of piracy and/or other illegal or unauthorized downloading and distribution of Rights Owner’s Work.

This notice is NOT a bill or invoice.  It is a notice made on behalf of Rights Owner of (i) a potential claim against you and/or those who you have allowed access to your Internet account for infringement of the Rights Owner’s copyright in the Work, and (ii) an opportunity to completely resolve that claim now.
AGAIN, IF YOU HAVE QUESTIONS ABOUT YOUR LEGAL RIGHTS, YOU SHOULD CONSULT WITH YOUR OWN LEGAL COUNSEL (I.E., BARRISTER, SOLICITOR, LAWYER, AND/OR ATTORNEY).
Nothing contained or omitted from this correspondence is, or shall be deemed to be either a full statement of the facts or applicable law, an admission of any fact, or waiver or limitation of any of Rights Owner’s rights or remedies, all of which are specifically retained and reserved.
The information in this notice is accurate. CEG has a good faith belief that use of the material in the manner complained of herein is not authorized by the copyright owner, its agent, or by operation of law. CEG and the undersigned declare under penalty of perjury, that CEG is authorized to act on behalf of Paperstreet Media LLC.

Sincerely,
CEG TEK International 
8484 Wilshire Boulevard, Suite 515 
Beverly Hills, CA 90211
United States of America
Toll Free: +1-877-526-7974 

Email: support@cegtek.com 

Website: www.copyrightsettlements.com

The post Misuse of Canada’s Copyright Notice System Continues: U.S. Firm Sending Thousands of Notices With Settlement Demands appeared first on Michael Geist.

Why Watching the Watchers Isn’t Enough: My Talk on Privacy, Snowden & Bill C-51

Michael Geist Law RSS Feed - Wed, 2015/03/04 - 10:24

Last month, I had the honour of speaking at the Pathways to Privacy Symposium, a privacy event sponsored by the Privacy Commissioner of Canada and hosted by the University of Ottawa. The event featured many excellent presentations (the full seven hours can be viewed here). My talk focused on the recent emphasis on the need to improve oversight, a common refrain in reaction to both the Snowden surveillance revelations and Bill C-51, the anti-terrorism bill.  While better oversight is necessary, I argue that it is not sufficient to address the legal shortcomings found in both Canada’s surveillance legislation and Bill C-51. The full talk (which unfortunately has slightly delayed sound) can be viewed here or below.

The post Why Watching the Watchers Isn’t Enough: My Talk on Privacy, Snowden & Bill C-51 appeared first on Michael Geist.

FREAK Attack: The Chickens of ‘90s Crypto Restriction Come Home to Roost

Freedom to Tinker - Tue, 2015/03/03 - 15:06
Today researchers disclosed a new security flaw in TLS/SSL, the protocol used to secure web connections. The flaw is significant in itself, but it is also a good example of what can go wrong when government asks to build weaknesses into security systems. Back in the early 1990s, it was illegal to export most products […]

Don’t Go Changing: The Canadian Broadcaster Fight Against Legal and Regulatory Reform

Michael Geist Law RSS Feed - Tue, 2015/03/03 - 11:43

Throughout the Canadian Radio-television and Telecommunications Commission TalkTV hearing, Canadian broadcasters such as Bell (CTV), Rogers (CITY), and Shaw (Global), tried to assure Canada’s regulator that they were ready to embrace the digital future and prepared for regulatory change. Yet in recent weeks, it has become increasingly apparent that Canadian broadcasters plan to fight change every step of the way.

The effort to keep core business models intact are sometimes obvious. For example, new services such as Shomi and CraveTV are often characterized as Netflix competitors, but given their linkage to a conventional cable or satellite television subscription, are a transparent attempt to persuade consumers to retain existing services and not cut the cord. The viability of those services remains to be seen, but more interesting are the regulatory and legal fights, where Canadian broadcasters are waging an ongoing battle against change.

Bell Media leads the way with the two legal challenges against recent CRTC decisions. Yesterday it asked the Federal Court of Appeal to overrule the CRTC on its decision to ban simultaneous substitution from Super Bowl broadcasts starting in 2017. The Bell motion for leave to appeal strikes me as weak:

  • it argues that the decision is unreasonable based largely on the grounds that it interprets broadcast policy differently than the CRTC
  • claims procedural unfairness on the basis that the CRTC did not give notice on the prospect of targeting simsub for the Super Bowl (it did)
  • says that Bell is being discriminated against by singling out one licensee (the CRTC decision does not do that)
  • suggests that it interferes with Bell’s commercial agreement with the NFL (Bell remains the exclusive Canadian broadcaster).

Bell claims that “the policy reasons for which simultaneous substitution was introduced apply as much, if not more, today than they did in the early 1970s.” I do not think that is correct (my post on why simultaneous substitution is less relevant), but Bell is effectively saying that nothing has changed and that the broadcast rules should not either.

Bell’s other legal challenge – over the application of the Telecommunications Act undue preference rules to its MobileTV service – features the company arguing that it should be entitled to engage in undue preferences for its own services provided that it is a broadcasting service. While there are good arguments that its service is covered by the Telecommunications Act (which prohibits undue preferences), this seems like a position that cannot last long term. Even if Bell wins in court, the Canadian government would surely step in to ensure that undue preference rules apply in these circumstances. For all the talk of change, Bell will spend enormous sums of money to argue that the rules should stay the same and that the largest media organization in the country should be permitted to grant itself undue preferences.

Bell is hardly alone in this regard. Last week’s post on a Rogers executive calling on the Canadian government to block the use of virtual private networks to stop Canadians from accessing U.S. Netflix reflects broadcaster frustration with consumers using technologies to circumvent geographically-based rights restrictions. Given that television licensing has long been based on geographic borders, the gradual elimination of the effectiveness of those limitations leaves broadcasters looking for new rules to stop the use of those technologies in an effort to re-affirm their longstanding business models. Rather than adapt to change, the focus is on government intervention to stop what are viewed as technological threats.

In fact, at the same Content Industry Connect conference, Barbara Williams, Shaw Media’s President, argued that if we really cared about the Canadian broadcast system, Canada would have blocked U.S. signals (tweets reporting on the comment that the “mistake” was not blocking U.S. television signals in the Canadian market here, here, and here). Leaving aside the irony of an executive of a cable company arguing against U.S. television signals in Canada (the cable industry was built on delivering U.S. signals), the comment reflects the lament over the loss of control and the shift in power from broadcaster to consumer.

The CRTC has made it clear that it plans to reform broadcast regulation with policies that place “Canadians at the centre of the communication system.” Broadcasters have claimed to support the shift, but scratch below the surface of the soundbites and you find they want things to stay the same. Consumers have paid the price as broadcasters have benefited from foreign investment restrictions, simultaneous substitution, and a myriad of other rules. Content creators are also invariably prepared to defend the status quo (ACTRA even wrote a letter supporting Super Bowl simsub), since any decline in broadcaster revenues are ultimately viewed as a loss in support for new content creation. The regulator, government, and public are clearly ready for change. For the broadcasters, the playbook for retaining existing rules is seemingly down to lawsuits and government intervention.

The post Don’t Go Changing: The Canadian Broadcaster Fight Against Legal and Regulatory Reform appeared first on Michael Geist.

Secret Memo Reveals RCMP Records on Requests for Subscriber Data “Inaccurate and Incomplete”

Michael Geist Law RSS Feed - Mon, 2015/03/02 - 10:43

Last fall, Daniel Therrien, the government’s newly appointed Privacy Commissioner of Canada, released the annual report on the Privacy Act, the legislation that governs how government collects, uses, and discloses personal information. The lead story from the report was the result of an audit of the Royal Canadian Mounted Police practices regarding warrantless requests for telecom subscriber information.

The audit had been expected to shed new light into RCMP information requests. Auditors were forced to terminate the investigation, however, when they realized that Canada’s national police force simply did not compile the requested information. When asked why the information was not collected, RCMP officials responded that its information management system was never designed to capture access requests.

While that raised serious concerns – the RCMP has since promised to study mechanisms for reporting requests with recommendations expected in April – my weekly technology law column (Toronto Star version, homepage version) reports that documents recently obtained under the Access to Information Act reveal that the publicly released audit results significantly understated the severity of the problem. Indeed, after the draft final report was provided to the RCMP in advance for comment, several of the findings were toned down for the public release.

Behind the scenes, however, documents suggest that Privacy Commissioner of Canada auditors were deeply concerned with what they found. In fact, just two days before the public release of the audit, one of the lead auditors wrote a memorandum to file to ensure that there was a paper trail chronicling what actually took place.

The memorandum specifically references a 2010 RCMP document that purported to list tens of thousands of warrantless subscriber information requests. The document indicated that 94 per cent of requests involving customer name and address information was provided voluntarily without a warrant.

The Privacy Commissioner of Canada auditors apparently expected that document, which was previously released under the Access to Information Act, to serve as the starting point for their review of RCMP practices. The internal memorandum notes that “we expected that these statistics would be accurate, complete, and up-to-date and that they would allow us to review RCMP files related to such warrantless requests.”

Once the auditors began examining the data, however, they found something entirely different. The internal memorandum states that “based on the evidence below we found, on the contrary, that the statistics provided for 2010 (and later for 2011-2013) were inaccurate, incomplete, not current, and they were not useful identifying PROS files for review.”

The internal memorandum continues by citing specific problems with the RCMP evidence, acknowledging that “problems with the reliability of data were also provided by way of interviews with senior officials.” The details of those interviews are redacted, however, the memorandum states that “from these discussions we also found that statistics for warrantless access are inaccurate because of lack of reporting, multiple reporting or overlapping reporting.”

The conclusion leaves little doubt about the problems the auditors encountered. It goes far further than the publicly released report, noting that “based on our review of statistics and interviews with senior officials at the RCMP we were unable to rely upon the numbers provided for warrantless access requests, nor was there any linkage between reports of such requests and the actual operational files containing such requests.”

In short, the Privacy Commissioner of Canada set out to audit the RCMP in the hope of uncovering the details behind requests for subscriber information. What it encountered instead was inaccurate data and an effort to downplay the problems within the public report.

The incident highlights the limits of Canadian oversight over law enforcement and surveillance activities. The use of the privacy commissioner’s audit power is frequently lauded as a mechanism to ensure that government does not run afoul of the law. Yet despite identifying inaccurate and incomplete data on a high profile privacy issue, the public audit report does not use the terms “inaccurate” or “incomplete.”

The shortcomings in both practice and oversight point to the need for a strong legislative and policy response. As a starting point, the RCMP should provide detailed guidance on its policy on customer name and address requests and regularly report on those requests. Moreover, mandatory reporting requirements for telecommunications companies on subscriber disclosures could be added to Bill S-4, the government’s privacy reform package that is currently before the House of Commons.

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RCMP Records on Requests for Subscriber Data “Inaccurate and Incomplete”

Michael Geist Law RSS Feed - Mon, 2015/03/02 - 10:40

Appeared in the Toronto Star on February 28, 2015 as RCMP Records Called ‘Incomplete and Inaccurate’ in Memo

Last fall, Daniel Therrien, the government’s newly appointed Privacy Commissioner of Canada, released the annual report on the Privacy Act, the legislation that governs how government collects, uses, and discloses personal information. The lead story from the report was the result of an audit of the Royal Canadian Mounted Police practices regarding warrantless requests for telecom subscriber information.

The audit had been expected to shed new light into RCMP information requests. Auditors were forced to terminate the investigation, however, when they realized that Canada’s national police force simply did not compile the requested information. When asked why the information was not collected, RCMP officials responded that its information management system was never designed to capture access requests.

While that raised serious concerns – the RCMP has since promised to study mechanisms for reporting requests with recommendations expected in April – documents recently obtained under the Access to Information Act reveal that the publicly released audit results significantly understated the severity of the problem. Indeed, after the draft final report was provided to the RCMP in advance for comment, several of the findings were toned down for the public release.

Behind the scenes, however, documents suggest that Privacy Commissioner of Canada auditors were deeply concerned with what they found. In fact, just two days before the public release of the audit, one of the lead auditors wrote a memorandum to file to ensure that there was a paper trail chronicling what actually took place.

The memorandum specifically references a 2010 RCMP document that purported to list tens of thousands of warrantless subscriber information requests. The document indicated that 94 per cent of requests involving customer name and address information was provided voluntarily without a warrant.

The Privacy Commissioner of Canada auditors apparently expected that document, which was previously released under the Access to Information Act, to serve as the starting point for their review of RCMP practices. The internal memorandum notes that “we expected that these statistics would be accurate, complete, and up-to-date and that they would allow us to review RCMP files related to such warrantless requests.”

Once the auditors began examining the data, however, they found something entirely different. The internal memorandum states that “based on the evidence below we found, on the contrary, that the statistics provided for 2010 (and later for 2011-2013) were inaccurate, incomplete, not current, and they were not useful identifying PROS files for review.”

The internal memorandum continues by citing specific problems with the RCMP evidence, acknowledging that “problems with the reliability of data were also provided by way of interviews with senior officials.” The details of those interviews are redacted, however, the memorandum states that “from these discussions we also found that statistics for warrantless access are inaccurate because of lack of reporting, multiple reporting or overlapping reporting.”

The conclusion leaves little doubt about the problems the auditors encountered. It goes far further than the publicly released report, noting that “based on our review of statistics and interviews with senior officials at the RCMP we were unable to rely upon the numbers provided for warrantless access requests, nor was there any linkage between reports of such requests and the actual operational files containing such requests.”

In short, the Privacy Commissioner of Canada set out to audit the RCMP in the hope of uncovering the details behind requests for subscriber information. What it encountered instead was inaccurate data and an effort to downplay the problems within the public report.

The incident highlights the limits of Canadian oversight over law enforcement and surveillance activities. The use of the privacy commissioner’s audit power is frequently lauded as a mechanism to ensure that government does not run afoul of the law. Yet despite identifying inaccurate and incomplete data on a high profile privacy issue, the public audit report does not use the terms “inaccurate” or “incomplete.”

The shortcomings in both practice and oversight point to the need for a strong legislative and policy response. As a starting point, the RCMP should provide detailed guidance on its policy on customer name and address requests and regularly report on those requests. Moreover, mandatory reporting requirements for telecommunications companies on subscriber disclosures could be added to Bill S-4, the government’s privacy reform package that is currently before the House of Commons.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

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