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Why the Demise of Sun News Network May Be a Preview of Things to Come

Michael Geist Law RSS Feed - Tue, 2015/02/24 - 10:17

Appeared in the Toronto Star on February 21, 2015 as Why the Demise of Sun News Network May Be a Preview of Things to Come

The abrupt end of the Sun News Network – its owners pulled the plug on the all-news channel without warning earlier this month – sparked considerable commentary with many lamenting the lost jobs, others examining the quality of the content, and some celebrating the end of a service that was controversial from the moment it launched. Largely left unsaid, however, is that its demise signals the beginning of a new era in Canadian broadcasting in which services are allowed to fail rather than being propped up through regulatory or government support.

The Canadian broadcasting system has long been shielded from market forces through a broad array of regulations that offer both financial compensation and marketplace protection. Those rules have been a boon to broadcasters, who have seen some services succeed with limited viewers and original content.

Mandatory carriage is the best-known support mechanism. The regulatory equivalent of a winning lottery ticket, inclusion on the list of “must carry” services guarantees subscription payments from all cable and satellite subscribers. The Sun News Network applied for mandatory carriage, but the Canadian Radio-television and Telecommunications Commission rejected its request along with virtually all other applications for the privileged status.

While must-carry status has long been the most direct path toward broadcast revenues, the government and the CRTC wield a much larger regulatory toolbox. Conventional broadcasters benefit from simultaneous substitution, a regulatory policy which allows them to substitute U.S. signals with the Canadian version – including ads – when the same program airs at the same time in both countries. The CRTC recently announced plans to ban simsub from the Super Bowl, but decided to retain it for other broadcasts after concluding that it generates $250 million in revenue per year for the Canadian system.

Until recently those same broadcasters also benefited from the Local Programming Improvement Fund, which the CRTC created in 2008 to assist local broadcasters. The LPIF resulted in a 1.5 per cent surcharge on consumer cable and satellite bills, paying out $300 million to broadcasters over its three years of existence (the CRTC announced plans to terminate the program in 2012).

Without regulations to stop the practice, broadcast distributors bundle services together, forcing consumers to buy packages of channels featuring ones they do not want along with ones they do. Some channels included in popular packages generate subscription revenue despite having low ratings and limited interest from viewers.

Direct payments and bundled services may be the most obvious methods of support, but broadcasters have also benefited from a protected marketplace. For example, foreign investment restrictions in the broadcast sector have shielded Canadian companies from foreign competition. This system initially kept U.S. giants such as ESPN, HBO, and MTV out of the market, thereby fostering the development of alternative Canadian sports, movie, and music specialty services.

The Sun News Network understandably hoped to cash in on this system, but its launch coincided with the gradual unraveling of Canadian broadcast regulation. The LPIF is gone, new mandatory carriage channels are non-starters, the value of simultaneous substitution is eroding, and the CRTC will soon require cable and satellite companies to offer all channels on a pick-and-pay basis.

The emerging environment places more control in the hands of consumers, who can pick from conventional broadcasters, specialty services, and unregulated Internet-based streaming services such as Netflix. The combination of increased choice and lost regulatory support will invariably mean that more services will fail in the months ahead.

As with the loss of the Sun News Network, some viewers will be left disappointed. The all-news channel may have been among the first to feel the effects of a marketplace that directly links the viability of broadcast services with actual consumer demand, but it surely will not be the last.

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 Why the Demise of Sun News Network May Be a Preview of Things to Come appeared first on Michael Geist.

Citizen Four and the Canadian Surveillance Story

Michael Geist Law RSS Feed - Mon, 2015/02/23 - 11:54

Citizen Four, Laura Poitras’ enormously important behind-the-scenes documentary film on Edward Snowden, won the Academy Award last night for best documentary. The film is truly a must-see for anyone concerned with privacy and surveillance. It not only provides a compelling reminder of the massive scale and scope of surveillance today, but it also exposes us to the human side of Snowden’s decision to leave his life behind in order to tell the world about secret surveillance activity.

Canada is not mentioned in the film, but that is not because we have been immune to similar surveillance activity. In the months since the Snowden revelations began, there have been many Canadian-related stories including reports on G8/G20 spying, industrial spying in Brazil, the “airport wifi” surveillance program, and the massive Internet download surveillance program.

Moreover, Canada helps tap into undersea Internet cables and it actively works with the NSA and other signals intelligence agencies as part of the “five eyes” group. With limited Internet exchange points, a significant portion of our domestic Internet traffic enters the United States and is therefore subject to U.S. surveillance. Virtually everyone uses U.S. based Internet services such as Google and Facebook and the metadata programs in the U.S. would appear to exist here too.

Yet despite the steady stream of revelations, the government dismisses the importance of metadata and characterizes oversight as “red tape”. Bill C-51, the anti-terrorism bill, would make matters far worse given the massive expansion of government sharing of information. The inclusion of CSE, Canada’s NSA counterpart, suggests that CSE information could be readily shared across government departments despite repeated claims that its work does not target Canadians. As I noted last week, the bill also permits additional use and disclosure of information “in accordance with the law…to any person, for any purpose.” Section 6 states:

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

Disclosure to any person for any purpose. The Snowden story is our story.

The post Citizen Four and the Canadian Surveillance Story appeared first on Michael Geist.

Lenovo Pays For Careless Product Decisions

Freedom to Tinker - Mon, 2015/02/23 - 08:00
The discovery last week that Lenovo laptops had been shipping with preinstalled adware that left users wide open to security exploitation triggered a lot of righteous anger in the tech community. David Auerbach at Slate wrote that Lenovo had “betrayed its customers and sold out their security”. Whenever a big company does something so monumentally […]

Feb 23-27, celebrating fair dealing

Fair Duty by Meera Nair - Fri, 2015/02/20 - 01:23

February 23-27 marks Fair Use Week in the United States, and thus by association, Fair Dealing Week for other jurisdictions. The Association of Research Libraries (ARL) is promoting a community celebration of these limits upon copyright that enable the system of copyright to live up to its mandate to promote creativity, advance knowledge and bolster innovation, and reap just rewards not only for the creators involved but for the creators yet to come as well. ARL pays particular attention to Canada: “… in Canada, fair dealing is a critical right of the user intended to facilitate balance in copyright law and accommodate freedom of expression.”

Readers may remember that user rights gained prominence in Canada in 2004, via CCH Canadian. Writing for the Supreme Court of Canada, in a decision supported with unanimity, Chief Justice Beverley McLachlin states:

The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively (para.48).

The Supreme Court has consistently reminded Canadians that copyright is a set of limited rights, and that those limits are critical to the proper functioning of the system as a whole. Yet, even after 11 years of well-articulated, thoughtful reminders, it remains that copyright is often perceived as a measure of absolute control. Such perception is cultivated perhaps unintentionally by people/organizations who have a genuine desire to behave in a law-abiding manner and thus restrict behaviour that need not be restricted. With time, we may hope that such misunderstanding will subside. More potent and damaging is the conduct of members within the publishing community who actively promote misinformation.

For instance, consider the following notice that graces the frontmatter of far too many books:

All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system, without permission in writing from the publisher.

If one unpacks this passage, the first sentence is correct. All the rights offered within copyright law have been reserved to the benefit of the copyright holder. At this juncture though, one should remember that extensive as those rights are, copyright holders are not permitted the right to refuse exceptions defined within the same law.  Copyright holders cannot pick the parts of the Copyright Act they wish to accept, and the parts which are to be dispensed with. But the sentence that follows in the passage tries to do exactly that; it categorically denies unauthorized use, despite the fact that fair dealing, fair use, and a host of other exceptions, can allow reproduction and transmission, by whatever means, without the consent of the publisher.

 

Update – February 28, 2015

Fair Dealing / Fair Use week sparked an outpouring of dialogue about our exceptions for unauthorized use. My favorite was Jonathan Band’s description of the many sightings of fair use in the daily life of a legislative assistant.

And, it was with great pleasure that I contributed the following posts to Harvard Library and the Office for Scholarly Communication, and University of Toronto Scholarly Communications and Copyright Office. My thanks to Kyle Courtney and Daniela Cancilla for the invitations to participate with their respective universities.

North of 49, posted February 24, 2015: “The proximity of the United States to Canada occasionally leads to some confusion north of the 49th parallel; in common parlance, fair use eclipses fair dealing. I cannot resist reminding others: we are Canadian; our exception is fair dealing. Yet it is only appropriate to also say that Canada has benefited greatly by American fair use. From our vantage point, we were able to appreciate the opportunity provided by flexibility in the language of exceptions, suffer the worst of fair use’s growing pains by proxy, and step ahead of such pain in our own development of exceptions.” To read more, see link or pdf.

Fair Dealing: Protector of the Public Domain, posted February 27, 2015“This past week marked Fair Dealing / Fair Use Week 2015. It was pleasing to see many Canadians within the educational community taking interest in our system of copyright. But, I confess to some disappointment that this interest should have blossomed only belatedly – after 2012. True, in that year the Copyright Act was revised with increased scope given to exceptional uses of copyrighted material. Also true, in 2012 the Supreme Court handed down two more decisions emphasizing the merits of fair dealing. But we cannot lose sight of the fact those decisions were based upon our previous Act which did not include any provision for “education.”  or can we forget our Court began speaking to the importance of fair dealing a full decade earlier, emphasizing that fair dealing is our mode of entry into the public domain.” To read more, see link or pdf.


“Total Information Awareness”: The Disastrous Privacy Consequences of Bill C-51

Michael Geist Law RSS Feed - Thu, 2015/02/19 - 11:24

The House of Commons debate over Bill C-51, the anti-terrorism bill, began yesterday with strong opposition from the NDP, disappointing support from the Liberals, and an effort to politicize seemingly any criticism or analysis from the Conservative government. With the government already serving notice that it will limit debate, the hopes for a non-partisan, in-depth analysis of the anti-terrorism legislation may have already been dashed. This is an incredibly troubling development since the proposed legislation has all the hallmarks of being pulled together quickly with limited analysis. Yet both the Conservatives and Liberals seem content to stick to breezy talking points rather than genuinely work toward a bill that provides Canadians with better safeguards against security threats while also preserving privacy and instituting effective oversight.

The only detailed review to date has come from Professors Kent Roach and Craig Forcese. Their ongoing work – three lengthy background papers so far (Advocating or Promoting Terrorism, new CSIS powers, expanded information sharing) – provides by far the most exhaustive analysis of the bill and is a must-read for anyone concerned with the issue. Indeed, once you have read their work, it becomes readily apparent that all should be concerned with this legislation. Much of the focus to date has been on the lack of oversight and the expansive new powers granted to CSIS. However, the privacy implications of Bill C-51′s information sharing provisions also cry out for study and reform.

At first glance, expanding information sharing within government seems like a good idea since the consequences of failing to head-off a terrorist attack because one government institution was unaware of what another knew could be devastating. Given the lack of Liberal study (it is simply not possible that the party fully assessed the legislation before pledging its support), it perhaps unsurprising that leader Justin Trudeau identifies expanded information sharing as one of the positive aspects of the bill.

However, Bill C-51′s Security of Canada Information Sharing Act, a bill within the bill, goes far further than sharing information related to terrorist activity. As Roach and Forcese persuasively argue, the bill effectively creates a “total information awareness” approach that represents a radical shift away from our traditional understanding of public sector privacy protection.

Daniel Therrien, the Privacy Commissioner of Canada appointed by this government less than a year ago, was the first to focus on the privacy implications of Bill C-51. Within hours of release of the bill, Therrien warned:

At this early stage, I can say that I am concerned with the breadth of the new authorities to be conferred by the proposed new Security of Canada Information Sharing Act.  This Act would seemingly allow departments and agencies to share the personal information of all individuals, including ordinary Canadians who may not be suspected of terrorist activities, for the purpose of detecting and identifying new security threats.  It is not clear that this would be a proportional measure that respects the privacy rights of Canadians. In the public discussion on Bill C-51, it will be important to be clear about whose information would be shared with national security agencies, for which specific purpose and under what conditions, including any applicable safeguards.

Roach and Forcese dig further into this issue, concluding that the information sharing provisions are excessive and unbalanced. There is much to digest, but the privacy concerns largely come down to three linked issues:

  • First, the bill permits information sharing across government for an incredibly wide range of purposes, most of which have nothing to do with terrorism (“It is, quite simply, the broadest concept of security that we have ever seen codified into law in Canada.”).
  • Second, the scope of sharing is remarkably broad: 17 government institutions with the prospect of cabinet expansion as well as further disclosure “to any person, for any purpose.”
  • Third, the oversight over public sector privacy has long been viewed as inadequate. In fact, calls for Privacy Act reform date back over three decades. The notion that the law is equipped to deal with this massive expansion in sharing personal information is simply not credible.

A more detailed look at each issue follows below. The cumulative effect is to grant government near-total power to share information for purposes that extend far beyond terrorism with few safeguards or privacy protections.

1.    Information sharing purposes

The bill opens the door to information sharing due to “activity that undermines the security of Canada.” Rather than using the CSIS Act definition, however, it creates a new expansive definition that covers:

any activity, including any of the following activities, if it undermines the sovereignty, security or territorial integrity of Canada or the lives or the security of the people of Canada: (a) interference with the capability of the Government of Canada in relation to intelligence, defence, border operations, public safety, the administration of justice, diplomatic or consular relations, or the economic or financial stability of Canada;
(
b) changing or unduly influencing a government in Canada by force or unlawful means;
(
c) espionage, sabotage or covert foreign-influenced activities;
(
d) terrorism;
(
e) proliferation of nuclear, chemical, radiological or biological weapons;
(
f) interference with critical infrastructure;
(
g) interference with the global information infrastructure, as defined in section 273.61 of the National Defence Act; [that provision reads: ““global information infrastructure” includes electromagnetic emissions, communications systems, information technology systems and networks, and any data or technical information carried on, contained in or relating to those emissions, systems or networks.”]
(
h) an activity that causes serious harm to a person or their property because of that person’s association with Canada; and
(
i) an activity that takes place in Canada and undermines the security of another state. For greater certainty, it does not include lawful advocacy, protest, dissent and artistic expression.

Terrorism is included within the definition, but several of these provisions would seemingly allow for information sharing for almost any investigative purpose, particularly “public safety” and the “economic or financial stability of Canada” (think of the government’s recent reaction to the proposed CP strike, which was said to have major implications for the protection of the Canadian economy).

2.    Scope of Sharing

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

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

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

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

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

Roach and Forcese note that “in accordance with the law” is unclear, leaving the prospect of literally permitting disclosure to anyone for any reason.

3.    Woeful Oversight

Since the enactment of the Privacy Act in 1983, every federal privacy commissioner has urged the government of the day to strengthen it. Those calls have grown louder over the past decade as PIPEDA places tougher obligations on the private sector than the government places on itself. The law as it currently stands has weak annual reporting requirements from government agencies, does not provide much protection to Canadians from abusive treatment by foreign states, does not give the Privacy Commissioner order-making power, does not provide redress in cases involving harm, does not prevent over-collection of personal information, does not protect against surveillance where the data is not recorded, and does not feature security breach disclosure requirements. The expansion on information sharing without addressing the oversight and safeguards of the Privacy Act should simply be a non-starter.

The post “Total Information Awareness”: The Disastrous Privacy Consequences of Bill C-51 appeared first on Michael Geist.

Canadian Chamber of Commerce, Canadian Marketing Association Take Aim At Digital Privacy Act’s Consent Provision

Michael Geist Law RSS Feed - Wed, 2015/02/18 - 11:13

The Standing Committee on Industry, Science and Technology continues its hearing on the Digital Privacy Act (Bill S-4) yesterday, with appearances from Privacy Commissioner of Canada Daniel Therrien, the Canadian Chamber of Commerce, and the Canadian Marketing Association. Therrien expressed general support for the bill, but concern with the expanded voluntary disclosure provision.

The Canadian Chamber of Commerce and the Canadian Marketing Association seemed to take the committee by surprise by criticizing a provision in the bill that clarifies what constitutes meaningful consent. The proposed provision states:

6.1 For the purposes of clause 4.3 of Schedule 1, the consent of an individual is only valid if it is reasonable to expect that an individual to whom the organization’s activities are directed would understand the nature, purpose and consequences of the collection, use or disclosure of the personal information to which they are consenting.

That provision should be uncontroversial given that it only describes what most would take to mean consent, namely that the person to whom the activities are directed would understand the consequences of consent. Indeed, Therrien expressed support for the change, noting:

As for the proposed provision that aims to enhance the concept of valid consent, I believe this is a useful clarification of what constitutes meaningful consent under PIPEDA.  It underscores the need for organizations to clearly specify what personal information they are collecting and why in a manner that is suited to the target audience.

Yet immediately after Therrien wrapped up, both the Canadian Chamber of Commerce and the CMA criticized the change. The Chamber described it as “unnecessary” and urged deletion. The CMA also called for it to be deleted:

I think the concern here is that the clause, as written, could lead to a broad interpretation with additional obligations. We’ve heard that the concern is about children and vulnerable groups. However, that’s not what the bill says, it’s much broader than that, and we would like some clarification of that bill. Actually, our recommendation would be to drop this clause or, as a fallback, to amend it to clarify that it is intended to apply only to vulnerable groups.

This led to an interesting exchange with Conservative MP Mike Lake, who noted:

I don’t really understand the hesitation from both of you regarding that kind of language. I think most Canadians would expect that a user taking a look at a website or signing up for an organization’s activities would be able to understand what that information is going to be used for.

The CMA responded:

I think the industry accepts, particularly when you’re dealing with children and youth, that you need to have privacy policies worded in such a way that they would be reasonable understandable by that audience. But how far does it go? If I have a multitude of sites, and for operational reasons I’d obviously like to have a single privacy policy for each one, how granular do I have to be? If one of my sites is directed at hockey fans, do I have to do survey research to tailor that to hockey fans because they might have a different way of understanding the way things are presented. Or if I’m a game manufacturer and I have a role playing game and I have something like Candy Crush and then I have a word game, do I have to have something different for each of those? I think this is what we’re concerned about.

Lake wasn’t buying the concern, noting that you do have to have something different for those different audiences, adding:

How far do you have to go? You have to go to the point where the person would understand the nature, purpose and consequences of the collection, use, or disclosure of the personal information. That seems pretty clear.

The strong response from Lake – who also swiftly rejected the Chamber’s comment that the provision does not define “vulnerable” groups – suggests that removing the clarification of consent is not in the cards.  However, when combined with the other recommendations (including higher thresholds on some of the data breach disclosure rules), it appears that business groups plan to fight provisions in Bill S-4 that would improve privacy protections.

The post Canadian Chamber of Commerce, Canadian Marketing Association Take Aim At Digital Privacy Act’s Consent Provision appeared first on Michael Geist.

Why Bell’s Targeted Ad Approach Falls Short on Privacy

Michael Geist Law RSS Feed - Tue, 2015/02/17 - 11:08

In October 2013, Bell announced the launch of a targeted advertising program that uses its customers’ personal information to deliver more “relevant advertising.” The announcement sparked hundreds of complaints with the Privacy Commissioner of Canada and a filing by the Public Interest Advocacy Centre over the same issue with the Canadian Radio-television and Telecommunications Commission.

My weekly technology law column (Toronto Star version, homepage version) notes that nearly a year and a half later, the complaints and filings remain unresolved. The CRTC case has succeeded in placing considerably more information on the public record, however, offering a better perspective on what Bell is doing and why its privacy approach falls short.

From Bell’s perspective, the targeted advertising approach, which it calls RAP or Relevant Ads Program, does not involve the collection of additional information (it already collects whatever is being used) and the company allows users to opt-out of this use of their information if they so choose. Moreover, it argues that the program is similar to what telecom companies in the United States as well as Internet giants such as Google and Facebook offer.

Yet documents now available on the public record reveal that there are important differences creating serious privacy concerns.

First, Bell has adopted an opt-out approach, automatically including millions of customers in its targeted advertising program unless they proactively ask not to be included. In the United States, some of the comparable programs are either opt-in or compensate users for the use of their information. For example, AT&T offers a discount on high-speed Internet services in some locations if customers allow it to track their web browsing history to deliver customized advertising.

Bell’s opt-out approach places the onus entirely on the user, who may not recognize the privacy implications of the system nor feel that they can take the time to opt-out of every unwanted use of their information. The cost-shift to users is precisely why Canada implemented the do-not-call list (which allows for a single opt-out of all unwanted telemarketing calls) and anti-spam legislation backed by an opt-in requirement.

While marketers can usually count on few people opting-out, Bell has revealed that 113,000 customers opted-out of its program in the first year alone. That may be a fraction of the total number of Bell subscribers, but if more than hundred thousand Canadians took the time to opt-out, there are likely many more that share similar concerns.

Second, Bell has access to customer data that is far more extensive than the Internet companies, who are largely limited to profiles based on Internet use. Bell acknowledges in the public record documents that advertisers can create profiles that include age, gender, account location (including postal code), credit score, pricing plan, and average revenue per user.

In addition to the use of financial information, Bell also tracks and retains individual Internet usage. The company offers advertisers profiles based on user interests, which are derived from the websites that users visit. Bell says that it retains Guavus, a U.S.-based data mining company, to assist in its efforts to assess Internet usage. It acknowledges that all website visits are logged for 30 days in a “probe buffer” and that all web addresses are logged in “Context Awareness Engine” for 90 days. The logged information is not aggregated and can be traced to the specific individual.

Moreover, Bell has also built in the capability to track search queries by pulling search terms directly from website address requests. The functionality is currently disabled, but the company says that it envisions using search terms to developed a more detailed user profile to market to advertisers.

The combined power of financial data, location information, and Internet usage gives Bell a remarkably detailed profile of its users. While the company does not disclose the information to third parties, its use of the information still triggers Canadian privacy law. The full profile represents an enormous amount of personal information, which is why the company’s opt-out approach leaves millions of Canadians with inadequate privacy protections.

The post Why Bell’s Targeted Ad Approach Falls Short on Privacy appeared first on Michael Geist.

Why Bell’s Targeted Ad Approach Falls Short on Privacy

Michael Geist Law RSS Feed - Tue, 2015/02/17 - 11:06

Appeared in the Toronto Star on February 14, 2015 as Why Bell’s Targeted Ad Approach Falls Short on Privacy

In October 2013, Bell announced the launch of a targeted advertising program that uses its customers’ personal information to deliver more “relevant advertising.” The announcement sparked hundreds of complaints with the Privacy Commissioner of Canada and a filing by the Public Interest Advocacy Centre over the same issue with the Canadian Radio-television and Telecommunications Commission.

Nearly a year and a half later, the complaints and filings remain unresolved. The CRTC case has succeeded in placing considerably more information on the public record, however, offering a better perspective on what Bell is doing and why its privacy approach falls short.

From Bell’s perspective, the targeted advertising approach, which it calls RAP or Relevant Ads Program, does not involve the collection of additional information (it already collects whatever is being used) and the company allows users to opt-out of this use of their information if they so choose. Moreover, it argues that the program is similar to what telecom companies in the United States as well as Internet giants such as Google and Facebook offer.

Yet documents now available on the public record reveal that there are important differences creating serious privacy concerns.

First, Bell has adopted an opt-out approach, automatically including millions of customers in its targeted advertising program unless they proactively ask not to be included. In the United States, some of the comparable programs are either opt-in or compensate users for the use of their information. For example, AT&T offers a discount on high-speed Internet services in some locations if customers allow it to track their web browsing history to deliver customized advertising.

Bell’s opt-out approach places the onus entirely on the user, who may not recognize the privacy implications of the system nor feel that they can take the time to opt-out of every unwanted use of their information. The cost-shift to users is precisely why Canada implemented the do-not-call list (which allows for a single opt-out of all unwanted telemarketing calls) and anti-spam legislation backed by an opt-in requirement.

While marketers can usually count on few people opting-out, Bell has revealed that 113,000 customers opted-out of its program in the first year alone. That may be a fraction of the total number of Bell subscribers, but if more than hundred thousand Canadians took the time to opt-out, there are likely many more that share similar concerns.

Second, Bell has access to customer data that is far more extensive than the Internet companies, who are largely limited to profiles based on Internet use. Bell acknowledges in the public record documents that advertisers can create profiles that include age, gender, account location (including postal code), credit score, pricing plan, and average revenue per user.

In addition to the use of financial information, Bell also tracks and retains individual Internet usage. The company offers advertisers profiles based on user interests, which are derived from the websites that users visit. Bell says that it retains Guavus, a U.S.-based data mining company, to assist in its efforts to assess Internet usage. It acknowledges that all website visits are logged for 30 days in a “probe buffer” and that all web addresses are logged in “Context Awareness Engine” for 90 days. The logged information is not aggregated and can be traced to the specific individual.

Moreover, Bell has also built in the capability to track search queries by pulling search terms directly from website address requests. The functionality is currently disabled, but the company says that it envisions using search terms to developed a more detailed user profile to market to advertisers.

The combined power of financial data, location information, and Internet usage gives Bell a remarkably detailed profile of its users. While the company does not disclose the information to third parties, its use of the information still triggers Canadian privacy law. The full profile represents an enormous amount of personal information, which is why the company’s opt-out approach leaves millions of Canadians with inadequate privacy protections.

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 Why Bell’s Targeted Ad Approach Falls Short on Privacy appeared first on Michael Geist.

Why the Copyright Board of Canada Needs a Leafs-Style Tear-Down

Michael Geist Law RSS Feed - Fri, 2015/02/13 - 10:57

In recent weeks, there has been growing talk of the need for the Toronto Maple Leafs to engage in full scale demolition of the current roster (as a long-suffering Leaf fan, I approve). The call for an overhaul comes as fans recognize that minor tinkering has resulted in years of mediocrity and that real change requires more drastic reforms. While the Leafs and the Copyright Board of Canada operate in entirely different worlds, they share a key similarity: the desperate for a complete reset.

The problems with the Copyright Board have been well-chronicled: the industry has been unhappy with many of its decisions (see the Tariff 8 decision), its rulings on fair dealing have been firmly rejected by the Supreme Court of Canada (“flawed”, “unreasonable” and “skewed” were some of the comments), it has been forced to admit errors that resulted in procedural unfairness, its processes are flawed, its decision making takes years, and the public is largely excluded from the process.  As I noted last year:

“The exclusion of the public stands in sharp contrast to the CRTC and Competition Bureau, which have both taken steps in recent years to involve the public more directly in policy making activities, hearings, and other issues. By contrast, the Copyright Board does little to encourage public participation, despite the fact that its decision often have an impact that extends beyond the parties before it. When asked recently about the accessibility and participation concerns, the board pointed to an internal working group as evidence that it regularly reviews its practices and compared itself to the Federal Court of Appeal, noting that ‘of course they [the public] don’t participate, because they don’t really belong there, per se.’”

While many of these issues would be enough to justify major reforms, the latest Copyright Board attempt at change highlights just how broken it is. In November 2012, the Board established an ad hoc committee to examine its operations and recommend reforms to improve efficiency and productivity. The committee is comprised of lawyers that regularly appear before the Board.  Nearly two years after the work began, it issued its first report that addresses issues such as how to better publicize proposed tariffs. Among the recommendations:

The Board should consider installing an RSS or other form of feed or information syndication (e.g. a Twitter account) allowing anyone to request in advance to be notified of the filing of proposed tariffs; collectives should be asked to consider doing the same or posting on their web sites links to the Board’s own notices in this regard.

This is real. The committee took almost two years to recommend considering an RSS feed or a Twitter account.

Many of the recommendations are unlikely to achieve very much, which some members of the committee acknowledged (“Another member was of the view that the discussion paper, even if implemented fully, will have a minimal effect on the problems the Committee was asked to address. The recommendations, taken as a whole, do not really address the expressed need to streamline the Board process in order to shorten the time to get tariff matters completed.”).

More tellingly, the report itself was only publicly released after it was posted by Howard Knopf. The Board originally sent the report to a list of 91 intellectual property lawyers identified as the “stakeholders”.  It would appear there were no plans to post the report or to consult the public.  With the report out in the open, the Board belatedly posted it online and is seemingly inviting anyone to comment (though the letter to “All the Board’s Stakeholders” dated February 5, 2015 was delivered to just the 91 people).

Simply put, the Board does not appear to get it. The impact of its decisions extend far beyond the limited number of parties that participate in the hearing, yet the board thinks its stakeholders are limited to IP lawyers and copyright collectives. Its hearings drag on for years, yet little is done to address the resulting business and legal uncertainty. It issues a handful of decisions each year, yet seems to regard that productivity as on par with other courts, tribunals, and regulators. Tinkering with RSS feeds will not solve the problem. If Industry Minister James Moore is serious about addressing the digital economy, a full tear-down is needed.

The post Why the Copyright Board of Canada Needs a Leafs-Style Tear-Down appeared first on Michael Geist.

The Nine Year Wait For Government Urgency on Privacy Reform

Michael Geist Law RSS Feed - Wed, 2015/02/11 - 10:37

The Standing Committee on Industry, Science and Technology started its study on Bill S-4, the PIPEDA reform bill, last week. While news reports suggested that Industry Minister James Moore was open to changes, government MPs warned that any amendments would mean the bill would go back to the Senate for approval and likely die with the fall election. For example, MP Mark Warawa stated:

Minister, if we were to then delay and amend, would S-4 then have to go back to the Senate to get passed? My concern is – this is needed and a vast majority of Canadians want this passed – if we amend it, what’s the chance of it passing in this Parliament? Because, it’s needed.

Moore acknowledged that MPs can suggest reforms, but emphasized that “there is some urgency.”

The government’s sense of urgency with the PIPEDA reform bill is striking given that it has largely stalled progress on the key provisions in this bill for years. In fact, in one instance it left a privacy bill sitting for two years in the House of Commons with no movement whatsoever until it died with prorogation. The historical background behind Bill S-4 is as follows:

November 2006: The Standing Committee on Access to Information, Privacy, and Ethics commences hearings on PIPEDA reform, one year later than the five-year review process required by the statute.

May 2007: The Committee releases its report with many recommendations that are later featured in PIPEDA reform bills (including S-4).

October 2007: Government responds to the Committee recommendations. It does not agree with the recommendation to expand voluntary disclosure to private sector organizations, noting the opposition from the Privacy Commissioner of Canada and privacy experts.

May 2010: First reading for Bill C-29, the first PIPEDA reform bill.

October 2010: Second reading for Bill C-29. Industry Committee never conducts any hearings on the bill, which dies with the election call in March 2011.

September 2011: First reading for Bill C-12, the second attempt at a PIPEDA reform bill.  Bill never proceeds to second reading.  Dies two years later when the government prorogues Parliament.

April 2014
: First reading in the Senate for Bill S-4, the third attempt at a PIPEDA reform bill.

June 2014: Bill S-4 receives third reading at the Senate and first reading at the House of Commons.

October 2014: Bill S-4 referred to the Industry Committee before second reading.

February 2015: Industry Committee begins study of bill. Government emphasizes the urgency of the legislation.

The privacy bill needs to be passed (with the expanded voluntary disclosure provision removed), but to suggest that the government has treated this issue with any urgency requires ignoring nearly nine years of legislative history where PIPEDA reform ranked among its lowest priorities.

The post The Nine Year Wait For Government Urgency on Privacy Reform appeared first on Michael Geist.

Why Better Oversight Won’t Fix Internet Surveillance and the New Anti-Terrorism Bill

Michael Geist Law RSS Feed - Tue, 2015/02/10 - 13:34

Appeared in the Toronto Star on February 7, 2015 as Mere Oversight Won’t Fix Tory Surveillance Bill

The past ten days have been a difficult time for Canadians concerned with privacy and civil liberties. Strike one came with new Edward Snowden revelations regarding Canada’s role in the daily tracking of the Internet activities of millions. Strike two was the introduction of Bill C-51, the anti-terrorism legislation, which sparked concern from observers across the country. Strike three came with the response to those developments, with the government dismissing oversight mechanisms as “red tape” and the opposition parties choosing to focus on process rather than substance.

The opposition parties’ decision to focus on oversight is unsurprising given the weakness of the current system and the absence of any meaningful reforms within the proposed legislation. Yet the problem with focusing chiefly on oversight and is that it leaves the substantive law (in the case of CSE Internet surveillance) or proposed law (as in the case of C-51) largely unaddressed. If Canada fails to examine the shortcomings within the current law or within Bill C-51, there is no amount of accountability, oversight, or review that will restore the harm to privacy and civil liberties.

For example, the latest Snowden leaks revealed that the CSE has gathered information on as many as 15 million uploads and downloads per day from a wide range of hosting sites. The goal is reputed to be to target terrorist propaganda and training materials and identify who is uploading or downloading the materials. The leaked information shows how once a downloader is identified, intelligence agencies use other databases (including databases on billions of website cookies) to track the specific individual and their Internet use within hours of identified download.

The program removes any doubt about Canada’s role in global Internet surveillance and highlights how seemingly all Internet activity is now tracked by signals intelligence agencies. They are able to track who visits various websites and what they do from the outside, confirming the existence of a massive surveillance architecture of global Internet traffic that improved oversight in Canada alone would do little to address.

Moreover, these programs point to the fundamental flaw in Canadian law, where Canadians are re-assured that CSE does not – in fact, it legally cannot – target Canadians. However, mass surveillance of a hundred million downloads every week by definition targets Canadians alongside Internet users from every corner of the globe.

The claims that Canadians are not specifically targeted by such programs is based on arbitrary distinctions in defining “targeting” that only succeed in demonstrating the weakness of Canadian law. Given what we now know, better oversight of CSE is needed, but so too is a better law governing CSE activities.

Similarly, Bill C-51 is a problem not only because it fails to address longstanding limitations in oversight and accountability over CSIS, but rather because there are substantive provisions that raise real privacy and civil liberties concerns.

For example, the new CSIS disruption warrants featured in the bill are remarkably broad, providing legal power to effectively ignore any law (domestic or otherwise) and do whatever is deemed necessary to counter activities that extend far beyond just terrorism. It shocks to see the government openly empowering CSIS to break the law with few limitations or restrictions.

There are many other provisions in the bill that require detailed study, among them the potential website takedowns, the criminalization provisions on promoting terrorism that will be surely challenged under the Charter, and the broad information sharing provisions that the government-appointed Privacy Commissioner of Canada has warned against.

The radical reform of CSIS, when viewed alongside the mass surveillance programs of CSE, point to the need for a careful, non-partisan review of the law. Canadians may have already struck out in the hope for such a review, however, with the opposition parties confining most of their criticism to oversight. There is still time to reconsider this position since addressing oversight is surely necessary, but even a cursory review of CSE activities and Bill C-51 confirms that it is by no means sufficient.

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 Why Better Oversight Won’t Fix Internet Surveillance and the New Anti-Terrorism Bill appeared first on Michael Geist.

CIRA Launches New Round of Funding For Community Investment Program

Michael Geist Law RSS Feed - Mon, 2015/02/09 - 11:28

The Canadian Internet Registration Authority has launched another round of its Community Investment Program (I am on the CIRA board and chair the committee that reviews funding applications).  Last year, the CIP allocated over $1 million in funding toward 29 different proposals that included support for infrastructure, new online services, research initiatives, and digital literacy programs. Those projects are still ongoing but that has not stopped CIRA from opening the door to a new round of funding. The application system is now open with applications accepted until March 6, 2015. Apply today!

The post CIRA Launches New Round of Funding For Community Investment Program appeared first on Michael Geist.

CRTC Says No To Internet Fast and Slow Lanes

Michael Geist Law RSS Feed - Mon, 2015/02/09 - 11:26

Appeared in the Toronto Star on January 31, 2015 as CRTC Says No Internet Fast and Slow Lanes

With the United States embroiled in a heated battle over net neutrality – millions have written to the U.S. regulator to support rules to prohibit Internet providers from creating fast lanes and slow lanes that would treat similar content in different ways – observers might want to take a closer look at how Canada has emerged as a leader in the area.

The Canadian Radio-television and Telecommunications Commission established net neutrality rules (referred to as Internet traffic management practices) in 2009, relying on bedrock principles that prohibit carriers from granting themselves undue preferences or from interfering with content. The rules share many similarities with those being debated in the U.S., yet the Canadian experience illustrates that they can be used to curtail unfair practices without bringing the Internet to a halt.

The most recent application of the Canadian rules came last week, with the CRTC issuing a landmark decision on the legality of mobile television services offered by Bell and Videotron. In a classic David vs. Goliath showdown, the complaint was filed by Ben Klass, a University of Manitoba graduate student, who noted that Bell offers a $5 per month mobile TV service that allows users to watch dozens of Bell-owned or licensed television channels for ten hours without affecting their data cap.

By comparison, users accessing the same online video through a third-party service such as Netflix or YouTube would be on the hook for a far more expensive data plan since all of the data usage would count against their monthly cap. That approach appeared to grant Bell an unfair advantage over the competitor video services (Videotron was later added to the case based on similar concerns).

Bell raised several arguments in response, claiming that the mobile television services were subject broadcast regulation (not telecom regulation) and that, in any event, the offering was good for consumers and should be encouraged.

The CRTC ruled that mobile television services effectively invoke both broadcast and telecom regulation, since a data connection is required to access the service. Indeed, it agreed with Klass that “from a subscriber’s perspective, the mobile TV services are accessed and delivered under conditions that are substantially similar to those of other Internet-originated telecommunications services.”

Given the application of telecom regulation, the Commission examined whether the Bell and Videotron approach violated the rules that prohibit carriers from granting themselves an undue preference or created an unreasonable disadvantage for competitors. It concluded that it did, noting that the services “may end up inhibiting the introduction and growth of other mobile TV services accessed over the Internet, which reduces innovation and consumer choice.” In light of that finding, the CRTC ordered Bell and Videotron to eliminate the unlawful practice by the spring.

The decision was clearly grounded with net neutrality principles in mind. CRTC Chair Jean-Pierre Blais, speaking prior to the release of the decision, stated that there would be “no fast and slow lanes”, adding that “at its core, this decision isn’t so much about Bell or Vidéotron. It’s about all of us and our ability to access content equally and fairly, in an open market that favours innovation and choice.”

Yet despite the endorsement of the principles of net neutrality, the decision did not apply the 2009 rules, which were viewed as inapplicable. Instead, the Commission went back to first principles to conclude that the service was simply an undue preference.

That points to an evolving net neutrality framework in Canada that includes analysis of both the net neutrality rules and the principles of undue preference. The combination leaves Canada with an even stronger net neutrality framework that better safeguards new innovative services and that will leave U.S. net neutrality advocates looking north with envy.

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 CRTC Says No To Internet Fast and Slow Lanes appeared first on Michael Geist.

In Defence of the CRTC’s Super Bowl Advertising Ruling

Michael Geist Law RSS Feed - Fri, 2015/02/06 - 11:21

Last week’s CRTC decision to ban simultaneous substitution from the Super Bowl broadcast starting in 2017 has generated mounting criticism in recent days. While analysts initially noted that the lost revenue for Bell Media would not be material (a prediction borne out by a quarterly conference call where the decision was not raised by anyone), anger over the decision has continued to grow. Nothing compares with Kevin O’Leary, a Bell Media commentator, ranting against the decision on Bell-owned BNN as he repeatedly calls the CRTC “insane” and laments lost foreign investment into a sector that still has Canadian ownership requirements. However, with Bell seeking private meetings with CRTC Commissioners to discuss the decision and more serious critiques from CMPA’s Michael Hennessy and Cartt.ca’s Greg O’Brien, the decision has clearly left many unhappy.

If the critics are right, the CRTC decision is the “beginning of the end of the system”, erodes the value of rights, and will lead to job losses and less Canadian content. It is undoubtedly true that changes are coming to the Canadian broadcasting system, but this simsub decision is at best a small part of the reason. The post raises six points in response to the decision and the critics.

First, this decision should not come as a surprise. The CRTC telegraphed the outcome months ago when it released a working document for discussion in advance of the TalkTV hearings. The document identified two options on simultaneous substitution: total elimination or removal for live event programming such as the Super Bowl. Broadcasters and creator groups argued against the complete removal of simultaneous substitution and the Commission went with a slimmed down version of its second option.

Second, the suggestions that the removal of simultaneous substitution eradicates rights or eliminates the ability of a Canadian broadcaster to air their own commercials is at odds with the experience of most other major sporting events. The Stanley Cup finals, the World Series, the Olympics, and World Cup are just some of the major events where Canadians have a choice between a Canadian and U.S. feed. Canadians often opt for the Canadian version, perhaps because they like the commentators or the Canadian-oriented coverage. No one suggests that the Canadian availability of the Stanley Cup finals on NBC or the World Series on Fox (Sportsnet uses the international feed) eradicates rights or eliminates the ability for a Canadian broadcaster to successfully air the same event.

With the elimination of simultaneous substitution, Canadians will have a choice between the U.S. feed and a Canadian feed. If the two are identical, many may opt for the U.S. feed to experience the commercials. If Bell Media uses the opportunity to compete with local content (there were two Canadian players in this week’s Super Bowl and at least two former CFL players), many may prefer the Canadian feed (provide different commentators during the years that CBS broadcasts the game with Phil Simms and many will make the switch).

Third, it is surprising to see advocates of the Canadian broadcast system argue that YouTube provides a viable substitute for those seeking access to the missing U.S. content. The commercials are available online, but as the CRTC rightly notes, their inclusion in the broadcast is often part of the experience. This is more than just a minor inconvenience. For some, it is part of the experience that is missed in Canada (more than half of U.S. viewers watch commercials as much as the game). For example, the PSA on domestic abuse broadcast in the U.S. during this year’s Super Bowl offered an important education opportunity that was absent in Canada.

Fourth, this is not the beginning of the end of simultaneous substitution. The beginning of the end of simultaneous substitution started years ago. The growth of specialty channels, which now represent a far bigger slice of the broadcasting revenue pie than conventional channels, heralded the decreasing importance of simultaneous substitution with fewer programs substituted and subscription revenue surpassing conventional television advertising revenue. Moreover, consumers gaining increasingly control over what they watch and when they watch it contribute to its declining importance. Recording television shows or watching them on demand eliminates the simultaneous substitution issue. Watching streamed version of the shows directly from broadcasters or through services like Netflix does the same.

I argued for the elimination of simultaneous substitution in this December 2013 piece, noting that the policy trades additional revenue for loss of control over the Canadian programming schedule and turns the Canadian system into a country-wide U.S. affiliate with hundreds of millions of dollars spent on the rights to non-Canadian programming. The CRTC recognized that eliminating simultaneous substitution altogether would still create a shock to the system. Limiting the elimination to the Super Bowl may be incoherent policy (ie. why just the Super Bowl), but it has the practical benefit of starting to move the industry off the addiction to U.S. programming and toward competition rather than regulatory protection.

Fifth, the arguments over lost jobs or less content point to the need for changes to the financing of Canadian programming, not retention of problematic policies. For broadcasters, there are clearly potential short term losses, however, revenues in the television broadcast system are over $6 billion. The CRTC estimates the value of simultaneous substitution at $250 million. That is not an insignificant hit, but the cost of U.S. programming may decline as a result (being worth less to Canadian broadcasters) and broadcasters will be encouraged to compete more effectively with original content.

From the creator perspective, the success of broadcasters and broadcast distributors is still viewed as the prime source of funds for Canadian content creation. This leads creator groups to argue against almost anything that might lead to declining broadcaster revenue, regardless of the wider implications. Moreover, it means that success is often measured by obtaining funding, rather than other potential metrics such as viewers or foreign distribution. As an industry beholden to regulations, it is unsurprising that many fear change.

Yet imposing old regulations on new, innovative services will not stop the broader societal and technological shifts in viewing habits. It is up to the industry to shift away from reliance on regulatory support. Further, the reality is that taxpayers – not broadcasters and broadcast distributors – still represent the largest source of financing in Canada. The CMPA’s annual report states that financing of television production came from the following sources:

  • Private broadcaster licence fees – 20%
  • Public broadcaster licence fees – 11%
  • Federal tax credits – 10%
  • Provincial tax credits – 18%
  • Canadian distributor – 11%
  • Foreign – 8%
  • Canada Media Fund – 13%
  • Other public – 1%
  • Other private – 8%

The public portion of this: public broadcaster licence fees (11%), federal and provincial tax credits (28%), Canada Media Fund (6.5% federal contribution), and other public (1%). The total is 46.5%, slightly more than the Canadian private contribution (45.5%).

Looking ahead, the private broadcaster portion may well decline. Arguments to shift the burden to Internet providers or companies like Netflix are non-starters. If eliminating simultaneous substitution from the Super Bowl leads to greater attention to competing in the global market, that is an outcome that should be welcomed, not rejected.

Sixth, the CRTC is doing exactly what it said it would: “placing Canadians at the centre of the communication system.” The criticism over the decision boils down to broadcasters and creator groups arguing that Canadians should not be able to see what they want during the broadcast because doing so hurts their bottom lines. That is not placing Canadians at the centre of the broadcast system, which the CRTC has tried to do with its decision on Super Bowl broadcasts.

The post In Defence of the CRTC’s Super Bowl Advertising Ruling appeared first on Michael Geist.

No future for you: cultural institutions can’t afford to play along with pointy-headed bosses


My new Guardian column, Go digital by all means, but don't bring the venture capitalists in to do it, is an open letter to the poor bastards who run public institutions, asking them to hold firm on delivering public value and not falling into the trap of running public services "like a business."

When you let regulators and politicians bully you into excluding the public from their own institutions, alienating the public that you need on your side to stave off the next round of cuts -- and the next.

In the story of market-driven public institutions, it’s we, the public, who are the angel investors. We paid to keep the archives growing, to put a roof over the museum, to amass and catalogue all of our nation’s cultural treasures (and the treasures of many other nations). The internet now makes it possible for those institutions to reach wider audiences than ever before, at lower costs than ever before – once their collections are digitised. When Siemens or another big company comes along to digitise our investments, they are the VCs putting in late-stage capital after we’ve borne all the risks, sometimes for centuries. If our management team – led by David Cameron, the self-styled MD of UK plc – offers these investor-come-latelies the lion’s share of the equity (that is, access to those treasures) for their paltry, late-stage capital, then he is in gross dereliction of his duty to us, the shareholders.

But of course, this is a stupid story. We don’t invest in public service institutions because we want them to be profitable. We invest in them because we want them to be good. Galleries, museums, archives and libraries tell us who we are. Schools and hospitals tend our minds and bodies. They are not businesses. We are not shareholders.

We have private archives, private schools, private healthcare, and private libraries. They cream off the easiest, most profitable, least onerous part of the public service remit. As austerity tightens and market logic crushes our institutions, many have become private/public hybrids, charging for some of their services, or selling off some of their treasures, or forcing the public to fit within the metrics demanded by the zealots of UK plc.

This is suicide. There is no amount of capitulation that will save your institution. If your archive charges the public to access its own memories, who will argue to keep it funded when the next round of cuts comes along? People who can’t afford to pay for your archive won’t stand up for it. People who can afford to pay for archival services already have private firms to serve them – why would they vote for their tax money to support another for-pay service?

Go digital by all means, but don't bring the venture capitalists in to do it

(Image: Villa A - the archive, TheGuyCalledDennis, CC-BY)

archives,libraries,education,neoliberalism,class war,politics,

Reports Indicate Canada Has Caved on Copyright Term Extension in TPP Talks

Michael Geist Law RSS Feed - Wed, 2015/02/04 - 10:48

Last month, there were several Canadian media reports on how the work of Ian Fleming, the creator of James Bond, had entered the public domain. While this was oddly described as a “copyright quirk”, it was no quirk. The term of copyright in Canada is presently life of the author plus an additional 50 years, a term that meets the international standard set by the Berne Convention. The issue of extending the term of copyright was discussed during the 2009 national copyright consultation, but the government wisely decided against it. Further, the European Union initially demanded that Canada extend the term of copyright in the Canada – EU Trade Agreement, but that too was effectively rebuffed.

If new reports out of Japan are correct, however, Canada may have caved to U.S. pressure to extend copyright term. The U.S. extended its term to life plus 70 years in 1998 in response to demands from the Disney Corporation (Mickey was headed to the public domain) and has since pressured other countries to match. NHK reports that a deal on copyright term has been reached within the TPP with countries agreeing to a life plus 70 term. Alongside Japan, Malaysia, New Zealand, and Vietnam (the TPP countries that adhere to the Berne standard), it appears that Canada has dropped its opposition to the change.

From a policy perspective, there is no credible evidence that this will do anything other than leave Canadians with 20 years of no new works entering the public domain. Indeed, many economists have examined the issue and concluded that extending the term unsurprisingly does not create an additional incentive for new creativity. Moreover, studies in other countries that have extended term have concluded that it ultimately costs consumers millions of dollars in additional royalties, most of which are sent out of the country.

While the Canadian decision to cave to the U.S. on copyright is disappointing, it should be noted that there are reports that Canada may still find itself outside the TPP altogether. Recent reports indicate that Canada will be required to make significant agricultural concessions (ie. changes to supply management) as part of the agreement. Japan and the U.S. have been actively working on market access issues, but Canadian negotiations have stalled as they apparently wait for the U.S. and Japan to resolve their differences. With a federal election set for later this year, the government may prefer holding off on major changes and sit out the initial TPP deal.  Regardless, if the Japanese reports are true, copyright term will not be one of the issues that holds up the TPP with Canada one of several countries set to cave to U.S. demands.

The post Reports Indicate Canada Has Caved on Copyright Term Extension in TPP Talks appeared first on Michael Geist.

DRM-free audiobook of Eastern Standard Tribe

Blackstone audio has produced a professional, DRM-free audiobook of my 2003 novel EST, a novel about jet-lag, conspiracies, management consultants, crypto-contracts and P2P that William Gibson called "Utterly contemporary and deeply peculiar -- a hard combination to beat (or, these days, to find)"

Warren Ellis called it "just far enough ahead of the game to give you that authentic chill of the future, and close enough to home for us to know that he’s talking about where we live as well as where we're going to live; a connected world full of disconnected people. One of whom is about to lobotomise himself through the nostril with a pencil. Funny as hell and sharp as steel."

As with my other books, Audible refuses to carry this title because I won't allow them to use DRM on it. You can get it at Downpour, where all audiobooks are DRM-free. I'd really appreciate it if you'd share this with your audiobook-loving friends and encourage them to vote with their wallets for businesses that let artists choose whether their works should be locked down with DRM.

The Canadian Privacy and Civil Liberties Punch in the Gut (or Why CSE/CSIS Oversight is Not Enough)

Michael Geist Law RSS Feed - Tue, 2015/02/03 - 17:09

As a lifelong Seattle Seahawks fan, this past Sunday’s Super Bowl – with the Hawks a yard away from winning their second straight championship only to give up a late interception – felt like a punch in the gut. Nearly two days later, I’m still trying to catch my breath. The end to Super Bowl 49 was the actually second time in the week that I was left feeling shocked and speechless. Throughout the week, the combination of Snowden revelations regarding Canada’s role in the daily tracking the Internet activities of millions and the introduction of Bill C-51, the anti-terrorism legislation, left me similarly grappling to make sense of the swirling developments.

It would appear that the immediate response from many, particularly the opposition parties, has centered on the need for improved accountability and oversight. There is no doubt that the failure to address Canada’s weak oversight system of surveillance and intelligence activities is a major flaw (particularly since oversight was actually reduced in 2012).  For a government that introduced the Federal Accountability Act as its very first piece of legislation (and supported more oversight when in opposition) to now dismiss oversight as “red tape” is simply shameful. Better oversight and accountability should be a proverbial “no-brainer”: it bolsters public confidence and, as demonstrated elsewhere, need not undermine security-related operations.

Yet the problem with oversight and accountability as the primary focus is that it leaves the substantive law (in the case of CSE Internet surveillance) or proposed law (as in the case of C-51) largely unaddressed. If we fail to examine the shortcomings within the current law or within Bill C-51, no amount of accountability, oversight, or review will restore the loss of privacy and civil liberties.

First, consider the Snowden revelations that the CSE has been the lead on a surveillance initiative that gathers as many as 15 million uploads and downloads per day from a wide range of hosting sites that even appear to include the Internet Archive. The goal is reputed to be to target terrorist propaganda and training materials and identify who is uploading or downloading the materials. The leaked information shows how once a downloader is identified, intelligence agencies use other databases (including databases on billions of website cookies) to track the specific individual and their Internet use within hours of identified download.

The Levitation program, which removes any doubt about Canada’s role in global Internet surveillance, highlights how seemingly all Internet activity is now tracked by signals intelligence agencies. Note that the sites that host the downloads do not hand over their usage logs. Rather, intelligence agencies are able to track who visits the sites and what they do from the outside. That confirms a massive surveillance architecture of Internet traffic operating on a global scale. Is improved oversight in Canada alone going to change this dynamic that crosses borders and surveillance agencies?  It is hard to see how it would.

Moreover, these programs point to the fundamental flaw in Canadian law, where Canadians are re-assured that CSE does not – legally cannot – target Canadians. However, mass surveillance of this nature does not distinguish between nationalities. Mass surveillance of a hundred million downloads every week by definition targets Canadians alongside Internet users from every corner of the globe. To argue that Canadians are not specifically targeted when it is obvious that the personal information of Canadians is indistinguishable from everyone else’s data at the time of collection, is to engage in meaningless distinctions that only succeed in demonstrating the weakness of Canadian law.  Better oversight of CSE is needed, but so too is a better law governing CSE activities.

Second, Bill C-51 is a problem not only because it fails to address longstanding shortcomings in oversight and accountability over CSIS. It is a problem because there are substantive provisions that should leave anyone concerned with privacy and civil liberties breathless (Craig Forcese has begun to identify them).

For example, the new CSIS disruption warrants are remarkably broad, providing legal power to effectively ignore any law (domestic or otherwise) and do whatever it deems is needed. It shocks to see the government openly empowering CSIS to break the law with few limitations or restrictions. While this is a warrant (therefore a judge must approve), legally granting the right to ignore the law is enormously problematic. Further, the power applies in far more than just terrorist situations.

In fact, the broad approach extends to other areas as well. The expanded information sharing rules cover:

(a) interference with the capability of the Government of Canada in relation to intelligence, defence, border operations, public safety, the administration of justice, diplomatic or consular relations, or the economic or financial stability of Canada;
(b) changing or unduly influencing a government in Canada by force or unlawful means;
(c) espionage, sabotage or covert foreign-influenced activities;
(d) terrorism;
(e) proliferation of nuclear, chemical, radiological or biological weapons;
(f) interference with critical infrastructure;
(g) interference with the global information infrastructure, as defined in section 273.61 of the National Defence Act;
(h) an activity that causes serious harm to a person or their property because of that person’s association with Canada; and
(i) an activity that takes place in Canada and undermines the security of another state.
For greater certainty, it does not include lawful advocacy, protest, dissent and artistic expression.

Terrorism is enumerated, but “interference with the capability of the Government of Canada” in relation to numerous activities is exceptionally broad. Moreover, the bill speaks to “install, maintain or remove any thing”, pointing to the power to install malware or other computer harms on personal computers or devices. By opening the door to do any other thing, it likely also includes the power to interfere with routine use of encryption, which is increasingly standard for many Canadians.

There are many other provisions that require detailed study, among them the potential takedown of websites or online content if hosted in Canada, expanded promoting terrorism provisions (a scenario released by the government states that posting a Youtube video with the words “Attack Canada” at the end would now constitute a criminal act), and the broad information sharing provisions that the government-appointed Privacy Commissioner of Canada has warned “would seemingly allow departments and agencies to share the personal information of all individuals, including ordinary Canadians who may not be suspected of terrorist activities, for the purpose of detecting and identifying new security threats.”

Law enforcement thankfully already has many powers to target terrorism and terrorist activities in Canada (as arrests in Ottawa on Tuesday demonstrate). The threats are real and we needs laws to address them. However, the radical reform of CSIS – when viewed alongside the mass surveillance programs of CSE – point to the need for a careful, non-partisan review of the substantive rules governing such activities. Viewed in this light, addressing oversight is necessary, but by no means sufficient.

The post The Canadian Privacy and Civil Liberties Punch in the Gut (or Why CSE/CSIS Oversight is Not Enough) appeared first on Michael Geist.

CRTC Rejects Bell Request for Private Meeting On Super Bowl Simsub Decision

Michael Geist Law RSS Feed - Mon, 2015/02/02 - 16:45

The CRTC has rejected a request from Bell for private meetings with some or all of the CRTC Commissioners to discuss the recent simultaneous substitution decision involving the Super Bowl. According to recently obtained correspondence (posted below), Bell wrote privately to the CRTC Commissioners over the weekend to request an opportunity to discuss the ruling with each or all of them. The CRTC responded immediately, noting that the decision was the result of a public process that is still ongoing and that it would be inappropriate for Bell to hold private meetings with the Commissioners to discuss the decision.  The full correspondence is posted below:

De :  Envoyé : Sunday, February 01, 2015 09:09 AM À : Blais, Jean-Pierre; Pentefountas, Tom; Menzies, Peter; Molnar, Candice; Shoan, Raj; Dupras, Yves; Simpson, Stephen Objet : Impacts of Super Bowl Simsub Decision
 
Good morning Commissioners and apologies in advance for communicating on a weekend.
 
As most of you know, I do not often email Commissioners about substantive regulatory issues and I have rarely (if ever) communicated to everyone at the same time to convey concern about a decision.
 
You have undoubtedly heard our perspective on the Super Bowl decision and you also had the benefit of the overwhelming evidence presented at the hearing showing the significant impacts that loss of simsub, even for the Super Bowl, would have on Canadian advertisers, promotional opportunities for Canadian content and on Bell Media’s revenues.  I have attached below two press releases and an article directly relevant to theses issues.
 
While I may often disagree with CRTC rulings, I always respect that the Commission has to take the broader public interest into account.  In this case however, I really do believe the negative impacts to advertisers, Canadian content and Bell Media significantly outweigh the convenience to some viewers of being able to watch American ads within the broadcast itself.
 
I would appreciate any opportunity to further discuss this issue with each or all of you.
 
Best regards,
 
——————–
CRTC Response
 
From: Laizner, Christianne 
Sent: February-02-15 2:00 PM
To: ‘
Subject: Broadcasting Regulatory Policy 2015-25
 
Dear Mr. ,
 
Your correspondence of 1 February 2015 to Commissioners has been forwarded to me for response. In that correspondence, you indicated your disagreement with the Commission’s decision regarding simultaneous substitution and the Super Bowl. You requested meetings with each or all of the Commissioners to discuss your views on this decision.
 
I would note that the decision in question was reached following an extensive public proceeding which examined many options with respect to simultaneous substitution including its complete elimination. The Commission considered all of the evidence and submissions put before it, in that public proceeding. I would further note, as indicated in the Commission’s decision, there will be further public process to implement the Commission’s decision via regulation. As such, the implementation of this decision is still before the Commission. In addition, the Commission has not yet issued its decisions on the many other outstanding issues from the public proceeding.
 
In light of the above, it would be inappropriate for you to hold private meetings with Commissioners either individually or collectively to discuss your views on this decision. It would be unfair to other parties to the public proceeding for Commissioners to hold off the record conversations with one party with a view to altering a decision already taken.
 
Sincerely,
 
Christianne Laizner
Avocate générale principale / Directrice exécutive
Senior General Counsel / Executive Director
Secteur juridique / Legal Sector
Conseil de la radiodiffusion et des télécommunications canadiennes /
Canadian Radio-television and Telecommunications Commission
CRTC, Ottawa, Ontario K1A 0N2

The post CRTC Rejects Bell Request for Private Meeting On Super Bowl Simsub Decision appeared first on Michael Geist.

In Partial Defense of the Seahawks’ Play Calling

Freedom to Tinker - Mon, 2015/02/02 - 09:30
The conventional wisdom about last night’s Super Bowl is that the Seahawks made a game-losing mistake by running a passing play from the Patriots’ one yard line in the closing seconds. Some are calling it the worst Super Bowl play call ever. I disagree. I won’t claim it was the right call, but I do […]
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