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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Four Fair Use Takeaways from Cambridge University Press v. Patton

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

Interview with The Geekcast


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

The Expansion of Personal Information Disclosure Without Consent: Unpacking the Government’s Weak Response to Digital Privacy Act Concerns

Michael Geist Law RSS Feed - Tue, 2014/10/21 - 11:03

Bill S-4, the government’s Digital Privacy Act, was sent for review to the Industry Committee yesterday. The committee review, which comes before second reading, represents what is likely to be the last opportunity to fix a bill that was supposed to be a good news story for the government but has caused serious concern within the Canadian privacy community. While there are several concerns (I raised them in my appearance before the Senate committee that first studied the bill), the chief one involves the potential expansion of voluntary disclosure of personal information without consent or court oversight. Bill S-4 proposes that:

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

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

The government is clearly aware that this is a major concern as it attempted to answer the critics during debate over Bill S-4 in the House of Commons yesterday. Unfortunately, the responses were incredibly weak. I’ve identified at least six responses from government sources below.

1. Expanded Disclosure Without Consent is Needed for Investigations by Regulatory Bodies

Conservative MP Cheryl Gallant claimed that there is a need for the provision since there are regulatory bodies such as the College of Physicians and Surgeons of Ontario, the Law Society of Alberta, or the Association of Professional Engineers of Nova Scotia that may need to obtain personal information as part of an investigation into member conduct. Yet the three organizations are all already included in a list of organizations that qualify as investigative bodies and therefore can rely on an exception that permits disclosure. In fact, the list already includes nearly 100 organizations that ranges from the Association of Professional Geoscientists of Ontario to the Board of Funeral Services to the College of Midwives of Ontario. The law has been in effect for over 10 years, providing plenty of time for dozens of organizations to obtain regulatory approval. Opening the disclosures to any private organization is simply not needed as there is no problem for regulatory bodies that conduct member investigations.

2. Expanded Disclosure Without Consent is Consistent with a 2006 Committee Recommendation

Government MPs claim that the provision is merely implementing a 2006 recommendation from the last committee to consider Canadian private sector privacy law. But while the Standing Committee on Access to Information, Privacy and Ethics may have recommended a similar reform in 2006, that recommendation was rejected by both the Conservative government and the Privacy Commissioner of Canada. The committee recommendation appears to have come from a single submission from the Canadian Bar Association. The CBA appeared before the committee but was not questioned about the proposal. The CBA proposal focused specifically on personal information legally available to a party to a legal proceeding. That is much narrower than the Bill S-4 provision.

In fact, even that narrower proposal was rejected by the Conservative government in its response to the committee recommendations:

The government notes the Committee’s recommendation and acknowledges that it was made in response to concerns expressed by certain stakeholders regarding the need to ensure that PIPEDA does not impede litigation procedures.  However, the government does not share the Committee’s view that such an amendment is necessary at this time.

The Privacy Commissioner of Canada also publicly opposed the recommendation, which she included among the six issues about which she had particular concerns:

The Canadian Bar Association recommended that the AB and BC Acts both provide clarity in regard to information legally available in a legal proceeding. I do not believe that this issue has posed any great difficulty over the past five years. The OPC has stated in complaints that the access provisions of PIPEDA may be broader than the requirements of discovery, depending on the breadth of documents relevant to a proceeding.

In other words, Bill S-4 contains an expanded version of a provision that one group asked for without facing any questions, that the government rejected when it was proposed, and about which the Privacy Commissioner of Canada expressed particular concern.

3. The Privacy Commissioner of Canada Supports Bill S-4

Government MPs claimed that the Privacy Commissioner of Canada supports Bill S-4. However, the Privacy Commissioner’s submission to the Senate committee specifically identified expanding voluntary disclosure without consent to private organizations as a concern:

While we understand the challenges created by the existing investigative body regime, we have some reservations about the proposed amendments. First, we believe that the grounds for disclosing to another organization are overly broad and need to be circumscribed, for example, by defining or limiting the types of activities for which the personal information could be used...Finally, there is the issue of transparency. These disclosures will be invisible to the individuals concerned and to our Office. In order to provide greater accountability, we recommend that the Committee consider ways to require organizations to be more transparent about the disclosures they would make under this provision.

4. Canadians Expect Businesses to Disclose Their Personal Information

Conservative MP Joan Crockatt implausibly argued that Canadians expect that businesses will share their personal information in this manner:

The provisions in the bill would allow businesses to share information in the normal course of business in a very limited way. They are things that would actually be required for that business to be conducted. It would not involve something like a major search through data to look for information on a large number of consumers. This would be something that would be more specific to being able to conduct day-to-day business, something that consumers would expect when they are doing business with a corporation.

The reality is that the provision has nothing to do with day-to-day business operations. Indeed, businesses can easily obtain consent for that form of use. The provision in question involves disclosure without consent.

5. PIPEDA Already Includes Information Sharing Provisions

Industry Minister James Moore’s press secretary Jake Enright argued on Twitter that PIPEDA has always permitted information sharing. However, as Enright surely knows, PIPEDA does not currently include a blanket exception for disclosure to private sector organizations. There are an assortment of exceptions for disclosure without consent, but the broad permission found in Bill S-4 is not there. This is not a case of implementing strict rules, but rather expanding the scope of disclosure without consent or court oversight.

6. Bill S-4 Is Consistent With the Supreme Court of Canada Spencer Decision

Enright also maintained that Supreme Court of Canada’s Spencer decision, which found that there is a reasonable expectation of privacy in subscriber information, does not mean that Bill S-4 is unconstitutional. But the constitutionality argument is wholly beside the point given the emphasis on reasonable expectation of privacy. Moreover, when Moore appeared before the Senate committee, he argued that consumers may have agreed to the voluntary disclosures in their user agreements:

Well, if you agree to a contract, for example, with a telecommunications company, and as part of that contract you can surrender some of your capacity to have your information shared under certain circumstances, that can exist in a number of contractual situations, but that’s an individual signing a contract and agreeing to that openness in the case of a criminal investigation.

But the Supreme Court was dismissive of arguments that consumers had consented to the disclosure of their information in the ISP user agreements:

Whether or not disclosure of personal information by Shaw is “permitted” or “required by law” in turn depends on an analysis of the applicable statutory framework. The contractual provisions, read as a whole, are confusing and equivocal in terms of their impact on a user’s reasonable expectation of privacy in relation to police initiated requests for subscriber information.

The Court added:

Given that the purpose of PIPEDA is to establish rules governing, among other things, disclosure “of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information” (s. 3), it would be reasonable for an Internet user to expect that a simple request by police would not trigger an obligation to disclose personal information or defeat PIPEDA’s general prohibition on the disclosure of personal information without consent.

The reality is that the expansion of voluntary disclosure of personal information without consent or court oversight is both overbroad and a serious threat to the privacy of Canadians. Indeed, when coupled with the expansion of voluntary warrantless disclosure to law enforcement in Bill C-13 (through full legal immunity) and the revelations of more than a million annual disclosures of subscriber information to law enforcement, it paints a picture of the government undermining privacy while claiming to protect it.

The post The Expansion of Personal Information Disclosure Without Consent: Unpacking the Government’s Weak Response to Digital Privacy Act Concerns appeared first on Michael Geist.

I’m coming to Vancouver, Seattle, Portland, SF/Palo Alto!


As the tour with my graphic novel In Real Life draws to a close, my next tour, with my nonfiction book Information Doesn't Want to Be Free kicks off with stops down the west coast.

I've also got stops coming up in Warsaw, London, Stockholm, Ann Arbor, Baltimore, DC, and Denver -- here's the whole list. Here's some of what Kirkus Review had to say about the new book:

In his best-selling novel Ready Player One, Ernest Cline predicted that decades from now, Doctorow (Homeland, 2013, etc.) should share the presidency of the Internet with actor Wil Wheaton. Consider this manifesto to be Doctorow’s qualifications for the job.

The author provides a guide to the operation of the Internet that not only makes sense, but is also written for general readers. Using straightforward language and clear analogies, Doctorow breaks down the complex issues and tangled arguments surrounding technology, commerce, copyright, intellectual property, crowd funding, privacy and value—not to mention the tricky situation of becoming “Internet Famous.” Following a characteristically thoughtful introduction by novelist Neil Gaiman, rock star Amanda Palmer offers a blunt summary of today’s world: “We are a new generation of artists, makers, supporters, and consumers who believe that the old system through which we exchanged content and money is dead. Not dying: dead.” So the primary thesis of the book becomes a question of, where do we go from here? Identifying the Web’s constituents as creators, investors, intermediaries and audiences is just the first smart move. Doctorow also files his forthright, tactically savvy arguments under three “laws,” the most important of which has been well-broadcast: “Any time someone puts a lock on something that belongs to you and won’t give you the key, that lock isn’t there for your benefit.”

How Corporate Canada Rejected the Canadian Government’s Plan to Combat Patent Trolls

Michael Geist Law RSS Feed - Mon, 2014/10/20 - 09:23

The Internet Association, a U.S.-based industry association that counts most of the biggest names in the Internet economy as its members (including Google, Amazon, eBay, Facebook, Netflix, and Yahoo), recently released a policy paper on how Canada could become more competitive in the digital economy. The report’s recommendations on tax reform generated some attention, but buried within the 27-page report was a call for patent reform.

The Internet giants warned against patent trolling, which refers to instances when companies that had no involvement in the creation or invention of a patent demand licences or other payments from legitimate companies by relying on dubious patents. Studies indicate that patent trolling has a negative impact on economic growth and innovation and is a particularly big problem in the U.S., which tends to be more litigious than Canada.

Given those concerns, the Internet Association urged the Canadian government to enact reforms to “limit the ability of non-practicing entities [a euphemism for patent trolls] of exploiting patents to make unreasonable demands of productive companies and prevent crippling damage awards.”

While the Canadian government has yet to respond publicly to the recommendations, my weekly technology law column (Toronto Star version, homepage version) reports that according to documents recently obtained under the Access to Information Act, earlier this year Industry Minister James Moore launched a series of private consultations with Canadian business on intellectual property issues. The government came prepared to engage directly on the patent trolling issue, going so far as to identify several potential policy measures. Yet it was Canadian business that discouraged Moore from taking action, warning against the “unintended consequences” of patent reforms.

The primary consultation took place in February 2014, featuring a who’s who of Canadian business including associations such as the Canadian Chamber of Commerce and Canadian Council of Chief Executives as well as Blackberry, IBM, Bombardier, Microsoft, and Cisco. The internal documents indicate that Moore’s opening remarks stressed concern with patent trolling, as he told the executives that “I am also particularly interested in hearing about any experience you may have had dealing with patent trolls in Canada or abroad.”

Moore’s comments were more than just talk. Government documents reveal that his department prepared a detailed discussion document on potential policy reforms that raised the possibility of implementing some of the toughest anti-patent troll reforms in the world.
For example, the government opened the door to a new prohibition against demand letters that are intentionally ambiguous or designed to induce a settlement without considering the merits of the claim. The government also raised the possibility of mandating public disclosure of the demand letters, which it hoped would create a public database of active patent trolling activity.

If the demand letter reforms were insufficient, the government mooted reforms that would grant the Federal Court the power to issue injunctions to stop patent trolls from forum shopping or amendments to the Competition Act to give the Competition Bureau the power to target anti-competitive activity by patent trolls.

Yet despite the opportunity to give the green light to combat patent trolls, the Canadian business community urged caution. According an internal summary document on the discussions, Cisco warned that the reforms “could do more harm than good.” Jim Balsille, the co-founder of Blackberry, indicated that he supported the intent of the patent troll reforms, but cautioned about the need to get the details right. The Canadian Chamber of Commerce also expressed concern with the reforms, arguing that the measures could legislate against legitimate assertion of patent rights and that they could create a chilling effect.

Given the negative response, the government appears to have backtracked on the patent troll issue. The initiative will come as a surprise to some, however, as the government’s proactive efforts to address patent trolling were secretly met with opposition from some of the same groups that have not hesitated to publicly criticize Canada’s intellectual property system.

The post How Corporate Canada Rejected the Canadian Government’s Plan to Combat Patent Trolls appeared first on Michael Geist.

How Canadian Business Chilled Patent Troll Reforms

Michael Geist Law RSS Feed - Mon, 2014/10/20 - 09:11

Appeared in the Toronto Star on October 18, 2014 as How Canadian Business Chilled Patent Troll Reforms

The Internet Association, a U.S.-based industry association that counts most of the biggest names in the Internet economy as its members (including Google, Amazon, eBay, Facebook, Netflix, and Yahoo), recently released a policy paper on how Canada could become more competitive in the digital economy. The report’s recommendations on tax reform generated some attention, but buried within the 27-page report was a call for patent reform.

The Internet giants warned against patent trolling, which refers to instances when companies that had no involvement in the creation or invention of a patent demand licences or other payments from legitimate companies by relying on dubious patents. Studies indicate that patent trolling has a negative impact on economic growth and innovation and is a particularly big problem in the U.S., which tends to be more litigious than Canada.

Given those concerns, the Internet Association urged the Canadian government to enact reforms to “limit the ability of non-practicing entities [a euphemism for patent trolls] of exploiting patents to make unreasonable demands of productive companies and prevent crippling damage awards.”

While the Canadian government has yet to respond publicly to the recommendations, according to documents recently obtained under the Access to Information Act, earlier this year Industry Minister James Moore launched a series of private consultations with Canadian business on intellectual property issues. The government came prepared to engage directly on the patent trolling issue, going so far as to identify several potential policy measures. Yet it was Canadian business that discouraged Moore from taking action, warning against the “unintended consequences” of patent reforms.

The primary consultation took place in February 2014, featuring a who’s who of Canadian business including associations such as the Canadian Chamber of Commerce and Canadian Council of Chief Executives as well as Blackberry, IBM, Bombardier, Microsoft, and Cisco. The internal documents indicate that Moore’s opening remarks stressed concern with patent trolling, as he told the executives that “I am also particularly interested in hearing about any experience you may have had dealing with patent trolls in Canada or abroad.”

Moore’s comments were more than just talk. Government documents reveal that his department prepared a detailed discussion document on potential policy reforms that raised the possibility of implementing some of the toughest anti-patent troll reforms in the world.
For example, the government opened the door to a new prohibition against demand letters that are intentionally ambiguous or designed to induce a settlement without considering the merits of the claim. The government also raised the possibility of mandating public disclosure of the demand letters, which it hoped would create a public database of active patent trolling activity.

If the demand letter reforms were insufficient, the government mooted reforms that would grant the Federal Court the power to issue injunctions to stop patent trolls from forum shopping or amendments to the Competition Act to give the Competition Bureau the power to target anti-competitive activity by patent trolls.

Yet despite the opportunity to give the green light to combat patent trolls, the Canadian business community urged caution. According an internal summary document on the discussions, Cisco warned that the reforms “could do more harm than good.” Jim Balsille, the co-founder of Blackberry, indicated that he supported the intent of the patent troll reforms, but cautioned about the need to get the details right. The Canadian Chamber of Commerce also expressed concern with the reforms, arguing that the measures could legislate against legitimate assertion of patent rights and that they could create a chilling effect.

Given the negative response, the government appears to have backtracked on the patent troll issue. The initiative will come as a surprise to some, however, as the government’s proactive efforts to address patent trolling were secretly met with opposition from some of the same groups that have not hesitated to publicly criticize Canada’s intellectual property system.

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 How Canadian Business Chilled Patent Troll Reforms appeared first on Michael Geist.

POODLE and the fundamental market failure of browser security

Freedom to Tinker - Mon, 2014/10/20 - 06:30
Last week saw the public disclosure of the POODLE vulnerability, a practical attack allowing a network attacker to steal plaintext from HTTPS connections. In particular, this attack can be used to steal authentication cookies. It’s a bad vulnerability, and it particularly hurts because it should have been fixed long ago. It only affects the ancient SSL v3 protocol, which was […]

Continued progress on fighting piracy

Google Public Policy BLOG - Fri, 2014/10/17 - 10:00
Today we’re publishing a refreshed How Google Fights Piracy report, which explains how we combat piracy across our services. This new version updates many of the numbers from the 2013 version and lists a few other developments in the past year:
  • Ad formats. We’ve been testing new ad formats in search results on queries related to music and movies that help people find legitimate sources of media. For the relatively small number of queries for movies that include terms like “download,”  “free,” or “watch,” we’ve begun to show the following:
We’re also testing other ways of pointing people to legitimate sources of music and movies, including in the right-hand panel on the results page:These results show in the U.S. only, but we plan to continue investing in this area and plan to expand internationally.
  • An improved DMCA demotion signal in Search. In August 2012 we first announced that we would downrank sites for which we received a large number of valid DMCA notices. We’ve now refined the signal in ways we expect to visibly affect the rankings of some of the most notorious sites. This update will roll out globally starting next week.
  • Removing more terms from autocomplete, based on DMCA removal notices. We’ve begun demoting autocomplete predictions that return results with many DMCA demoted sites.

Every day our partnership with the entertainment industry deepens. Just this month we launched a collaboration with Paramount Pictures to promote their upcoming film “Interstellar” with an interactive website. And Content ID (our system for rightsholders to easily identify and manage their content on YouTube) recently hit the milestone of enabling more than $1 billion in revenue to the content industry.
In addition to strengthening these relationships, we continue to invest in combating piracy across all our services.
Posted by Katherine Oyama, Sr. Copyright Policy Counsel

New TPP Leak: Canada Emerges as Leading Opponent of U.S. Intellectual Property Demands

Michael Geist Law RSS Feed - Thu, 2014/10/16 - 10:03

This morning Wikileaks released an updated leaked version of the draft Trans Pacific Partnership intellectual property chapter. The latest leak dates from May 2014 (the previous leak was current to August 2013. I assessed it in posts here, here, here, here and here). The 77-page document provides a detailed look at the proposed chapter, complete with country positions on each issue. While a comprehensive assessment of the chapter will take some time, the immediate takeaway is that the U.S. remains fairly isolated in its efforts to overhaul patent and copyright law around the world with Canada emerging as the leading opponent of its demands.

In fact, Wikileaks compiled the following graphic that shows Canada as the strongest opponent to TPP IP demands, signalling its opposition to a proposal 56 times, more than any other country. The strongest opposition comes in the patents, enforcement, trademarks, and copyright sections.

WikiLeaks-TPP-IP-Opposing By Julian Assange and Sarah Harrison https://wikileaks.org/tpp-ip2/attack-on-affordable-cancer-treatments.html

Why is Canada opposing so many U.S. demands?

Simply put, the U.S. wants Canada to eviscerate many of the recent reforms found in copyright and counterfeiting legislation along with court rulings on patent protection. These demands focus on enhanced criminal liability for copyright infringement, eliminating the Canadian approach to Internet service provider liability, extending the term of copyright protection, and expanding patent protection. Canadian negotiators have thus far resisted many of the proposed changes, offering alternatives that are compatible with current law. Yet as the treaty negotiations continue, the pressure to cave to U.S. pressure will no doubt increase, raising serious concerns about whether the TPP will force the Canadian government to overhaul recently enacted legislation that it has steadfastly defended as reflecting a balanced, “made in Canada” approach.

The post New TPP Leak: Canada Emerges as Leading Opponent of U.S. Intellectual Property Demands appeared first on Michael Geist.

Government Opens Door to Major Changes to Digital Privacy Bill

Michael Geist Law RSS Feed - Wed, 2014/10/15 - 09:52

While it was overshadowed by the headlines over potential copyright reform, Peter Van Loan, the government’s House leader, disclosed last week that the government is planning to send Bill S-4, the Digital Privacy Act, to the Industry Committee for review prior to second reading. The bill, which has proven controversial due to a provision that expands the possibility of voluntary disclosure of subscriber information and relatively weak security breach disclosure rules, will be open to more significant reforms that previously thought possible (my remarks before the Senate committee can be found here). Under Parliamentary rules, referring a bill before second reading allows the committee to alter the scope of the bill.

As I discussed earlier this year, there appeared to be a deal at the Senate that would have amended the voluntary disclosure provision. However, a voting snafu by Liberal Senators left the provision intact. With the bill headed to committee before second reading, changes seem likely. During the abbreviated Senate hearings, there were calls for changes to the voluntary disclosure rules, increased Privacy Commissioner powers, and strengthened data breach rules.

That said, industry groups have also been lobbying for changes, including limitations to reforms to consent and opposition to tough measures on security breach rules. Indeed, it is unclear whether the government plans to use the committee process to strengthen or weaken its own privacy bill, but the procedural maneuver is sure to lead to increased lobbying and requests to appear before the Industry committee once hearings on S-4 begin. Moreover, it is possible the changes are linked to forthcoming anti-terrorism legislation. For Canadians concerned about the state of private sector privacy law, now is the time to speak out to ensure that the bill toughens privacy enforcement, is not used to perversely increase surveillance, and removes provisions that could undermine privacy protections.

The post Government Opens Door to Major Changes to Digital Privacy Bill appeared first on Michael Geist.

Broadcaster Copyright Misuse and Collusion?: Why Criticism Over the Government’s Political Ad Copyright Exception May Be Pointed in the Wrong Direction

Michael Geist Law RSS Feed - Tue, 2014/10/14 - 09:25

The Canadian Thanksgiving weekend featured escalating rhetoric over the government’s proposed copyright exception for political advertising with claims of fascism, censorship, expropriation, and more. The commentary bears almost no relationship to reality. The truth is that the government and the broadcasters both agree that the current law already permits use without authorization. For all the claims of “theft”, the copyright owner (broadcasters) and user (political parties) both agree that the works can be used without further permission or payment. As Ariel Katz points out this morning, the bigger issue may well be whether Canada’s broadcasters violated the Competition Act by conspiring to not air perfectly lawful political advertisements.

I wrote about the controversy in my weekly technology law column (Toronto Star version, homepage version), but the debate can be boiled down to three issues.

First, it is important to emphasize again that fair dealing under copyright already permits use of many broadcaster clips without the need for further permission. While the scope of fair dealing is not unlimited, the broad approach dictated by the Supreme Court of Canada means that many uses are already permitted under the law. Therefore, the claims of co-opting broadcasters, theft, and risks to press freedom are simply wrong.

Second, the proposed change is problematic, but not because it creates a political advertising exception. The exception may be of limited value, but the problem lies in the inequitable policy of creating two tiers of rights for political speech. As currently crafted, the exception would only apply to political parties, politicians, candidates, and their agents. The creation of an exception that only allows a select few to benefit is not a provision that can be defended on freedom of political speech grounds. If the government is convinced that stronger protection for political speech is needed, there are far better options, namely a full fair use provision or the inclusion of political speech as a fair dealing purpose that would be available to all.

Third, the entire strategy is rather puzzling since the proposed exception does not address the underlying issue: broadcasters are now refusing to air legal advertisements from political parties. Documents obtained by others under the Access to Information Act reveal that the CBC was the instigator behind the April 2014 warning letter to all political parties that the broadcasters wold not accept political advertisements using their content without express authorization. The email trail reveals that the CBC recognized that it could not reject the advertisements on copyright grounds. Instead, the broadcasters conspired to adopt a policy to reject the ads anyway, an approach that smacks of copyright misuse and a potential Competition Act violation.

The odd thing is that the proposed copyright exception would have little impact on the broadcaster policy. The legal change would not require broadcasters to air the advertisements and since the decision to refuse to air is presumably not grounded in copyright law, the change would not alter the broadcaster position. The entire episode ultimately raises troubling questions about why the CBC was pursuing efforts to limit legal uses of its work (I’ve argued it should open up its content for wider use), why the government is bothering with a provision that does not solve its concern, and perhaps most importantly, why has there been so little focus on a broadcaster policy to refuse to air political advertisements that by their own admission are perfectly legal.

The post Broadcaster Copyright Misuse and Collusion?: Why Criticism Over the Government’s Political Ad Copyright Exception May Be Pointed in the Wrong Direction appeared first on Michael Geist.

Though this be method, there is madness in’t…

Fair Duty by Meera Nair - Fri, 2014/10/10 - 12:38

This past week, news broke concerning the Harper Government’s consideration of a new exception to Canada’s Copyright Act. A benefit solely for those involved in the  creation and distribution of political advertisements, the proposal can only undermine three hundred years of statutory design on copyright law, which has progressively ensured broad language with flexibility to anonymous creators and users alike.

Reports began on October 8 from CTV and the Globe & Mail, with the CBC providing further details on October 9 (including posting the undated Cabinet presentation document). Michael Geist posted commentary on both the 8th and 9th, and copyright enthusiasts around the country are shaking their heads in disbelief and dismay.

Briefly, Prime Minister Harper and his cabinet are entertaining the thought of an exception to copyright that is only applicable to the political establishment. From the Cabinet document came this:

The exception means greater certainty for the political actors who want to use copyright content in their advertisements:
– E.g. clips from radio and television broadcast news, footage capturing a political debate or events, a newspaper or magazine article, etc.
– Could be used by all politicians and registered political parties at any level of government.

The rationale offered by the government is that politicians should be held accountable for their statements and actions, and this exception would ensure that the public is kept informed. The opposition parties see it as a thinly veiled attempt to facilitate the use of attack ads. While our Government is content to claim method, their behaviour is madness of Shakespearean proportions.

First, we already have an exception to address the use of copyrighted material; fair dealing protects unauthorized use for the purposes of research, private study, criticism, review, news reporting, parody, satire and education, provided the use is fair. Political parties should apply the law under the same constraints as all Canadians (if anything, in a more edifying manner).

Second, using published material to report or contradict political opinion is part and parcel of civil society as it exists. If a member of the political realm gives a speech, a reporter may quote from the speech. An opponent may choose to quote out of context. The audience may find such a tactic repugnant, but it is hardly new.

Third, in the copyright amendments of 2012, this same Government introduced a new exception, unofficially titled the YouTube exception which supports the creation of user-generated content. Section 29.21 is suited to the creation of both commentary and fantasy. While I find attack ads loathsome, they are creative expression and may draw upon the exception.

Fourth, the issue of moral rights is given short-shrift by this Government’s proposal. It claims that moral rights of creators would not be affected, via the logic that creators have likely waived those rights. Moral rights protect the integrity and reputation of a work and its creator respectively. Canadian law forbids allying a work to a cause if the creator objects. To blithely indicate that the Government will not suffer for misusing a work is further evidence that this government only cares about legal liability, not ethical conduct.

Fifth, this desire to embed a copyright change in an omnibus budget bill flies in the face of this Government’s own stipulation of a five year, comprehensive review cycle of the Copyright Act. If musicians and students, librarians and broadcasters must wait to plead their case until 2017, this Government must abide by the same rule.

Finally, the Government’s proposal makes curious distinctions that undermine the universality of the grant of copyright and the use of exceptions. That it is designed for a small segment of Canadians is reprehensible. So too is the manner in which genre and medium are parceled out. For instance, news articles may be used but not photographs or music. Documentaries are not eligible for mining (even though documentarians are among the greatest users of exceptions to copyright, making reciprocation only appropriate). Fictional works are also not eligible, despite fiction being a rich resource for modern commentary. Presumably though, fiction that has passed into the public domain may be drawn upon—I await the invocations of Caesar, Macbeth and Hamlet.

Canada has enjoyed ten years of jurisprudence that yielded a fair dealing regime capable of addressing all situations with flexibility, to the benefit of all Canadians. To muddy up the Copyright Act with a narrowly worded, politically-minded exception places future courts in the awkward position of having one approach when adjudicating copyright for Canadians and a separate approach when adjudicating copyright for Canadian politicians. This will not facilitate the understanding or practice of the system of copyright in Canada.

 


There’s no back door that only works for good guys


My latest Guardian column, Crypto wars redux: why the FBI's desire to unlock your private life must be resisted, explains why the US government's push to mandate insecure back-doors in all our devices is such a terrible idea -- the antithesis of "cyber-security."

As outgoing Attorney General Eric Holder invokes child kidnappers and terrorists, it's like a time-warp to the crypto-wars of the early 1990s, when the NSA tried to keep privacy technology out of civilian hands by classing it as a munition (no, seriously). Today, the need for the public to be able to thoroughly secure its data has never been more urgent, and the practicality of a back-door mandate has never been less plausible.

Because your phone isn’t just a tool for having the odd conversation with your friends – nor is it merely a tool for plotting crime – though it does duty in both cases. Your phone, and all the other computers in your life, they are your digital nervous system. They know everything about you. They have cameras, microphones, location sensors. You articulate your social graph to them, telling them about all the people you know and how you know them. They are privy to every conversation you have. They hold your logins and passwords for your bank and your solicitor’s website; they’re used to chat to your therapist and the STI clinic and your rabbi, priest or imam.

That device – tracker, confessor, memoir and ledger – should be designed so that it is as hard as possible to gain unauthorised access to. Because plumbing leaks at the seams, and houses leak at the doorframes, and lie-lows lose air through their valves. Making something airtight is much easier if it doesn’t have to also allow the air to all leak out under the right circumstances.

There is no such thing as a vulnerability in technology that can only be used by nice people doing the right thing in accord with the rule of law.


Crypto wars redux: why the FBI's desire to unlock your private life must be resisted

(Image: graffiti04, David Bleasdale, CC-BY)

On the value of encrypting your phone

Freedom to Tinker - Thu, 2014/10/09 - 06:01
This is a true story. Yesterday my phone crashed, and it wouldn’t reboot. Actually it would do nothing but reboot, over and over, with a seemingly different error message every time. I tried all of the tricks available to a technically handy person, and nothing worked—I couldn’t get it out of the crash-reboot cycle. So […]

Guessing passwords with Apple’s full-device encryption

Freedom to Tinker - Wed, 2014/10/08 - 06:50
With the recently-introduced iOS 8, Apple has switched to a encrypting a much larger amount of user data by default. Matt Green has provided an excellent initial look at a technical levelandbig-picture leveland Apple has recently released a slightly more detailed specification documentandan admirable promise never to include backdoors. This move, and Google’s prompt promise […]

Update on Injunction Against Google (Equustek Solutions Inc. v. Google Inc.)

IPBlog (Calgary) - Mon, 2014/10/06 - 15:00
- By Richard Stobbe Last summer, Google was ordered by a Canadian court to de-index certain offending websites which were selling goods that were the subject of an intellectual property (IP) infringement claim (Equustek Solutions Inc. v. Jack, 2014 BCSC 1063 (CanLII), see our earlier post: Court Orders Google to Remove ...

Crowdfunding: Tips for the Start-Up

IPBlog (Calgary) - Mon, 2014/10/06 - 15:00
- By Richard Stobbe If you are a start-up considering the crowdfunding route, let's talk. Here are a few tips to consider: IP: Most crowdfunding portals require extensive disclosure of the start-up's business plans and product prototypes. That makes sense - after all, investors want to know what they're investing in. The start-up should consider ...
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