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It's (Almost) Here: Why the Canadian Digital Strategy Takes Shape With Budget 2014

Michael Geist Law RSS Feed - Wed, 2014/02/12 - 00:09
Nearly two years ago, I wrote a post about how the Canadian digital economy strategy seemed to be taking shape. The government had moved on several legislative issues including copyright and spam, it was bringing together federal and provincial ministers to discuss the issue, the open government initiative was on the way, and telecom policy was beginning to emerge as a major concern. All that was missing was an announcement, identification of some targets, and the signal that this was a priority. While I'm told that some in government also saw it this way, then-Industry Minister Christian Paradis let the moment slip away and the entire digital strategy become little more than a punchline.

Yesterday's federal budget marks the revival of the Canadian digital strategy. The government will undoubtedly still point to past accomplishments (the budget references reforms that date back to the 2006, so digital economy activities from several years ago are surely fair game), but this budget provides many of the remaining ingredients for a digital strategy (Mark Goldberg offers a similar perspective). Once again, all that is left is missing is the official announcement from Industry Minister James Moore. So what will the Canadian digital strategy contain? Based on this budget, it would seem to include:

Connectivity and Access: The government has set a target of "near-universal" access to broadband (which it is defining as 5 Mbps) within five years. That is consistent with the CRTC's target from 2011, but at a far slower pace, since the Commission talked about universal access by the end of 2015, not 2019. In addition to broadband access, the government is continuing support for computers in schools and embracing regulation of wireless services in an effort to address ongoing concerns (including those of the Competition Bureau) about the state of competition. This includes previously announced wholesale wireless roaming regulation, stronger enforcement powers, more spectrum auctions, tower sharing, and foreign investment changes.

In sum, the good news is that there is finally a government target for universal broadband access, some money to finish the job, and a commitment to address wireless competition concerns. The bad news is that a 5 Mbps goal by 2019 is too slow. By comparison, the Digital Agenda for Europe sets a target of 30 Mbps by 2020 and Australia has targeted 100 Mbps by 2016.

Intellectual Property: The government has already passed copyright reform and will soon also pass Bill C-8, the anti-counterfeiting bill that includes major reforms to Canadian trademark law. It recently tabled five intellectual property treaties that focus on the administration of intellectual property rights. The budget confirms the intent to pass the amendments needed to ratify or accede to those treaties. In addition, it will reform plant breeders rights, another form of IP.  All of the latest IP reforms are being driven by trade agreements as these are required reforms for the Canada - European Union Trade Agreement.

Online Commerce: Electronic commerce issues often fall within provincial jurisdiction (for example, online contracting), but the government seems to have identified several areas where it can play a role. The anti-spam legislation that takes effect later this year is the most obvious policy intervention, but the budget contains two more. First, the government has launched a consultation (deadline in 120 days) on the collection of sales tax on e-commerce transactions. It asks:

the Government is inviting input from stakeholders on what actions the Government should take to ensure the effective collection of sales tax on e-commerce sales to residents of Canada by foreign-based vendors. For example, should the Government adopt the approach taken in some other countries (such as in South Africa and the European Union) and require foreign-based vendors to register with the Canada Revenue Agency and charge the Goods and Services Tax/Harmonized Sales Tax (GST/HST) if they make e-commerce sales to residents of Canada?

Second, the government says it plans to introduce anti-money laundering and anti-terrorist financing regulations for virtual currencies such as Bitcoin. The budget cites a 2013 Senate report for support for the move, though that report does not reference virtual currencies. There have been some efforts elsewhere to address money laundering concerns with online currencies, but some remain skeptical over whether the concern is warranted.

The government may have also encouraged the Competition Bureau to flex its muscles on online commerce issues, leading to the recent e-books settlement and the greater cooperation between the CRTC and the Bureau.

Content: The budget includes a couple of digital items involving online content with money allocated for the Virtual Museum of Canada and Online Works of Reference, which includes The Canadian Encyclopedia/Encyclopedia of Music in Canada and The Dictionary of Canadian Biography. Unfortunately, a serious commitment to digitization is still absent. I suspect that the government will point to many earlier initiatives - changes to the Canada Media Fund (including major funding several years ago) and the IP reforms - as evidence of its support for online content. The other important element of government policy is how Canadians access content, with the government's commitment to a pick-and-pay model for television broadcasting and its likely opposition to regulation of Internet video providers focusing on the access side of the equation.

Skills Development: Every budget includes money for skills development and this one is no different. While there are no references to specific digital skills development, training programs, research funding, and other support can be easily brought into the digital agenda umbrella.

Government as a Model User: Given the inaccessibility of the budget website yesterday, the government still has plenty of room to improve in holding itself out as a model user. Yet the budget also includes key elements here: funding for an Open Data Institute and emphasis of web-based services (particularly for veterans) provide examples that would fall within the digital strategy. Indeed, open data has made real progress in recent years with more data sets available and the creation of a non-commercial open licence for government works.

The actual Canadian digital strategy may not look identical to this - privacy and security did not fall within the budget but would presumably be part of a strategy - but there is enough in this budget to provide observers with a good guess about where things seem to be headed.

Struggle for Canadian Copyright: the podcast

Sara Bannerman - Tue, 2014/02/11 - 10:30
I was recently The Struggle for Canadian Copyright: Imperialism to Internationalism, 1842-1971.  The podcast, available here, is part of the New Books in Communications series interviewing authors about their work.  Other podcasts include Robert Darnton speaking on the Future of Libraries, Melissa Aronczyk on Branding the Nation, and Jonathan Sterne on MP3: The Meaning of a Format, among others.
interviewed by Jeff Pooley on her book

It’s time to reform government surveillance laws

Google Public Policy BLOG - Tue, 2014/02/11 - 09:10
Posted by Susan Molinari, VP Public Policy 

The revelations about government surveillance practices—both in the U.S. and globally—over the past eight months have sparked a serious and overdue debate about the nature and scope of existing laws and programs. Today, many organizations and companies are participating in “The Day We Fight Back,” a series of events and awareness campaigns highlighting the urgent need for surveillance reform around the world.

Google recognizes the very real threats that the U.S. and other countries face, but we strongly believe that government surveillance programs should operate under a legal framework that is rule-bound, narrowly tailored, transparent, and subject to oversight.

In December, along with other technology companies, we unveiled a set of government surveillance reform principles that address many of the recent concerns around government surveillance. In Congress, Representative Sensenbrenner (R-Wis.) and Senator Leahy (D-Vt.) have introduced legislation—the USA Freedom Act—that would codify many of these principles. As they both noted when introducing this bill, government surveillance programs “have come at a high cost to Americans’ privacy rights, business interests and standing in the international community.”

The USA Freedom Act reflects some of the key recommendations made by the President’s Review Group on Intelligence Communications and Technologies as well as the Privacy and Civil Liberties Oversight Board. We support this legislation and we urge Congress to enact it into law.

But there’s more that can be done as we consider appropriate reforms to government surveillance laws. Congress should update the Electronic Communications Privacy Act (ECPA) to require governmental entities to obtain a warrant before they can compel online companies to disclose the content of users’ communications. Legislation introduced by Senators Leahy and Lee (R-Utah) in the Senate and Representatives Yoder (R-Kan.), Graves (R-Ga.), and Polis (D-Colo.) in the House would achieve that goal. More than 100 companies, trade associations, and consumer groupsand more than 100,000 Americans—have signed on to support this important update to ECPA, which no longer reflects users’ reasonable expectations of privacy.

We will continue to press Congress to adopt these important measures, which would represent significant progress in the broader effort to reform government surveillance laws. If you want to receive updates from us, please visit google.com/takeaction and sign up.

The Day We Fight Back Against Mass Internet Surveillance: What Canadians Can Do

Michael Geist Law RSS Feed - Tue, 2014/02/11 - 00:46
Over the past eight months, the steady stream of Snowden leaks have revealed the existence of a massive surveillance infrastructure intent on capturing seemingly all communications, including metadata on phone calls, Internet searches, and other online activity. While much of the surveillance originates with the U.S. NSA, the leaks suggest that Canada plays a key role in many initiatives and that Canadians' data is undoubtedly captured in the process. Indeed, in recent months, we've learned about:
Moreover, we know that U.S. law provides fewer protections to personal information of non-U.S. citizens, suggesting that Canadian data residing in cloud-based servers in the U.S. are particularly vulnerable. Meanwhile, the Canadian legal rules remain largely shrouded in secrecy, with officials maintaining that programs fall within the law despite the obvious privacy interests in metadata and statutory restrictions on domestic surveillance.

I recently posted on a discussion I had last summer with a senior government official on the Snowden leaks. The official remarked that in the wake of the Snowden revelations the political risk did not lie with surveillance itself, since most Canadians basically trusted their government and intelligence agencies to avoid misuse. Rather, the real concern was with being caught lying about the surveillance activities. This person was of the view that Canadians would accept surveillance, but they would not accept lying about surveillance programs.

Today is the day that Canadians can send a message that this official is wrong. The Day We Fight Back Against Mass Surveillance is a global effort to galvanize people around the world to speak out against ubiquitous surveillance. Canadians can learn more here, but the key ask is to contact your Member of Parliament. If you are concerned with widespread surveillance in Canada, take a couple of moments to send an email or letter (no stamp required) to your MP and let them know how you feel (alternatively, you can fill out the form at this site). In addition, you can sign onto a global petition supported by hundreds of groups around the world. 

I've written about the need for changes here and many others - including Interim Privacy Commissioner Chantal Bernier, Kent Roach, Wesley Wark, Ron Diebert, David Fraser, Ontario Privacy Commissioner Ann Cavoukian and Avner Levin, Craig Forcese, and Lisa Austin - have highlighted other potential changes. There are no shortage of ideas for reform. What we need now are Canadians to speak out to demand an open review and reform of Canadian surveillance law and policy.

Leaked Conservative Election Document Reveals How Social Media Activity Linked to Party Database

Michael Geist Law RSS Feed - Tue, 2014/02/11 - 00:39
The Toronto Star reports  on a leaked Conservative party document setting out the strategy for the 2015 election.  Of particular note is the party's plans to engage in widespread social media monitoring that seek to identify users based on social media activity for follow-up and engagement.  The Star reports:

the document showed how the party can mine information on “non-CPC branded” websites, using a friendly media "Illustration." The slide show points to radio station CFRA's Lowell Green, whom it identifies as an "Ottawa based conservative leaning talk show host." It says a "recent Facebook posting - non-issue" received 55 Facebook "likes." The document says the party was able to "positively identify 38 constituents (70 per cent ID rate)." Of those 38, it said five "are current members/donors." The result, it said: "33 Canadians who would be a 'warm contact' for engagement."

Note that these uses appear to run counter to the Privacy Commissioner of Canada's recommendation on using social media information in her recommendations on privacy protection and intelligence. Those recommendations included:

Develop specific guidelines for collection, use and dissemination of intelligence products built upon use of online sources and social network sites. The position of the OPC is that the public availability of personal information on the Internet does not render personal information non-personal. It is our view that departments should not access personal information on social media sites unless they can demonstrate a direct correlation to legitimate government business.

While the Conservative party usage is not the same as CSEC, the same concerns may well apply.

Canadian Government To Commit More Money Toward Rural Broadband Initiatives

Michael Geist Law RSS Feed - Mon, 2014/02/10 - 02:27
The CBC is reporting that the 2014 federal budget, which is scheduled to be tabled tomorrow, will feature money to "extend or improve high-speed Internet access to 280,000 households and businesses in rural and remote areas." A new commitment to broadband access, which was promised in last fall's speech from the throne, is certainly welcome. It is also the latest in a long line of commitments for public funding to support to broadband connectivity in rural regions in Canada. Industry Canada claims that the Broadband Canada Program, which ran from 2009 to 2012, provided broadband access to 218,000 Canadian households that previously did not have it (full list of funded projects here).

Given the ongoing digital divide in Canada - there are still many Canadians without access to broadband in their homes - this is a welcome development. Yet spending money on rural broadband initiatives is only part of the solution. In many instances, the absence of broadband in the home is not a function of access, but rather affordability. Statistics Canada reports that Internet use among the richer half of the country is actually over 90 per cent with the top quartile of household income at 94.5 per cent and the second quartile at 90.2 per cent. Internet use among the bottom quartile of Canadians stands at only 62.5 per cent (the third quartile is 77.8 per cent). Governments at all levels must be thinking about both access and affordability.

Competition Bureau Raises Concerns Over Canadian Wireless Market

Michael Geist Law RSS Feed - Mon, 2014/02/10 - 02:17
The longstanding debate over the state of wireless services in Canada has veered across many issues - pricing, roaming fees, locked devices, new entrants, and foreign investment to name a few. At the heart of all of these questions is a single issue: is the current Canadian wireless market competitive?

My weekly technology law column (Toronto Star version, homepage version) notes the competitiveness of the Canadian market is a foundational question since the answer has huge implications for legislative and regulatory policy. If the market is competitive, regulators (namely the CRTC) can reasonably adopt a "hands-off" approach, confident that competitive forces will result in fair prices and consumer choice. If it is not competitive, standing on the sidelines is not option, thereby pressuring government and the CRTC to promote more competition and to implement measures to prevent the established players from abusing their advantageous position.

The importance of the question has not been lost on the incumbent wireless providers.  Responding to public and government concerns about the state of competition, Bell recently told the CRTC "the wireless market in Canada remains robustly competitive." Similarly, Telus maintains the "claim that Canada's wireless market is uncompetitive is, frankly, not just woefully misleading, it is an insult to Telus' team members." To support their position, the incumbent providers have relied on a University of Calgary study that concluded "there is no competition problem."

Yet if there is a neutral arbiter on the state of wireless competition in Canada, it would be the Competition Bureau of Canada, an independent law enforcement agency responsible for ensuring a competitive marketplace. Indeed, in a recent submission to the CRTC, Bell cites to a 2005 Competition Bureau decision to support its contention that the market remains competitive.

Last month, the Competition Bureau offered its latest opinion on the wireless competitive environment and it wasn't even close: it believes the Canadian market is not competitive and regulation is needed.

The Bureau's opinion came in a submission to the CRTC on domestic roaming regulation. Both the Commission and the government have indicated they plan to pursue regulation to guard against abusive wholesale pricing of domestic roaming. The issue may be invisible to consumers, but it is a major concern for regional and smaller wireless providers, who rely on the national incumbents' networks for access in markets they do not serve.  Those providers claim that the incumbents are charging unfair prices, thereby limiting their ability to compete.

While the national providers have been dismissive of the need for regulation (Bell has argued that entire process is "without legal foundation"), the Bureau examined the issue and concluded that companies like Bell can use roaming to shield themselves from competition, noting that "making it more costly for entrants to access incumbent networks through roaming agreements is one way for an incumbent service provider to relax competitive pressure."

If the market was competitive, this would not be a concern. However, the Bureau concluded that the incumbents enjoy "market power", which it defines as "the ability of a firm or firms to profitably maintain prices above competitive levels (or similarly restrict non-price dimensions of competition) for a significant period of time."  Moreover, it rejected the University of Calgary study, concluding that it "does not provide adequate support for Bell's claims that mobile wireless markets in Canada are competitive."

Given its findings, the Bureau urged the CRTC to establish regulatory safeguards on domestic roaming pricing. New domestic roaming regulations may be the initial takeaway, but the Bureau's finding could have far bigger implications.  Not only does it validate federal industry minister James Moore's insistence on the need for more wireless competition, but it also opens the door to examining other potential competitive barriers, including exclusive content deals, international roaming arrangements, and access to new smartphones.

Who Gets a Large Share of Access Copyright Education Licensing Revenues?: US Publishers Say They Do

Michael Geist Law RSS Feed - Fri, 2014/02/07 - 09:17
As the Canadian education community continues to shift away from the Access Copyright licence, relying instead on a combination of site licenses for materials, open access, fair dealing, and individual transactional licences, U.S. publishers are now urging the U.S. government to pressure the Canadian government to take action. The IIPA, the leading U.S. copyright lobby group, filed its submission today as part of the Special 301 process, a U.S. review of foreign intellectual property laws.

This year's IIPA submission devotes several paragraphs to educational licensing, lamenting the shift away from Access Copyright and claiming that it is U.S. publishers that are being hurt in the process. According to the IIPA:

as soon as the new Act came into force, virtually all K-12 school boards across Canada cancelled their licenses with Access Copyright. Anticipated 2013 annual licensing revenue of at least C$12 million to right holders and authors - much of it destined for U.S. publishers, which enjoy a large market share in the educational sector - evaporated.

The IIPA urges the U.S. government to "engage" with Canadian authorities in the hope that they will tell Canadian educational institutions to pay Access Copyright. While that isn't likely to happen - the government rejected Access Copyright's demands for limitations on the expansion of fair dealing - the IIPA submission is notable for the claim that a large share of the Access Copyright educational licensing revenue was headed not for Canadian authors and publishers, but rather to the United States.

CIRA Commits One Million Dollars to Improving Canada's Internet

Michael Geist Law RSS Feed - Thu, 2014/02/06 - 04:17
The Canadian Internet Registration Authority, the organization that manages the dot-ca domain, has unveiled an exciting new initiative that will deliver a million dollars toward community projects, research, and other related activities (full disclosure: I am a member of the CIRA board and chair of the committee that will review applications). The typical grant is expected to be worth $25,000 - $50,000, though grants can climb as high as $100,000. Funds are available for community groups, not-for-profit organizations, academic institutions, and associated researchers. The application period opened earlier this week and will run until February 28th. Application guidelines can be found here and the application form is here. This is a great initiative that holds the promise of injecting much needed support into Canadian Internet initiatives. Take a closer look and apply today!

Why DRM is the root of all evil

Why DRM is the root of all evil

In my latest Guardian column, What happens with digital rights management in the real world?, I explain why the most important fact about DRM is how it relates to security and disclosure, and not how it relates to fair use and copyright. Most importantly, I propose a shortcut through DRM reform, through a carefully designed legal test-case.

The DMCA is a long and complex instrument, but what I'm talking about here is section 1201: the notorious "anti-circumvention" provisions. They make it illegal to circumvent an "effective means of access control" that restricts a copyrighted work. The companies that make DRM and the courts have interpreted this very broadly, enjoining people from publishing information about vulnerabilities in DRM, from publishing the secret keys hidden in the DRM, from publishing instructions for getting around the DRM – basically, anything that could conceivably give aid and comfort to someone who wanted to do something that the manufacturer or the copyright holder forbade.

Significantly, in 2000, a US appeals court found (in Universal City Studios, Inc v Reimerdes) that breaking DRM was illegal, even if you were trying to do something that would otherwise be legal. In other words, if your ebook has a restriction that stops you reading it on Wednesdays, you can't break that restriction, even if it would be otherwise legal to read the book on Wednesdays.

In the USA, the First Amendment of the Constitution gives broad protection to free expression, and prohibits government from making laws that abridge Americans' free speech rights. Here, the Reimerdes case set another bad precedent: it moved computer code from the realm of protected expression into a kind of grey-zone where it may or may not be protected.

In 1997's Bernstein v United States, another US appeals court found that code was protected expression. Bernstein was a turning point in the history of computers and the law: it concerned itself with a UC Berkeley mathematician named Daniel Bernstein who challenged the American prohibition on producing cryptographic tools that could scramble messages with such efficiency that the police could not unscramble them. The US National Security Agency (NSA) called such programs "munitions" and severely restricted their use and publication. Bernstein published his encryption programs on the internet, and successfully defended his right to do so by citing the First Amendment. When the appellate court agreed, the NSA's ability to control civilian use of strong cryptography was destroyed. Ever since, our computers have had the power to keep secrets that none may extract except with our permission – that's why the NSA and GCHQ's secret anti-security initiatives, Bullrun and Edgehill, targetted vulnerabilities in operating systems, programs, and hardware. They couldn't defeat the maths (they also tried to subvert the maths, getting the US National Institute for Standards in Technology to adopt a weak algorithm for producing random numbers).

What happens with digital rights management in the real world?

Motion to sever and dismiss granted in Killer Joe Nevada v Does 1-39

Recording Industry vs The People - Tue, 2014/02/04 - 18:17
Hat tip to Ernesto at TorrentFreak:

In Killer Joe Nevada v. Does 1-39, and four similar BitTorrent downloading cases, in the Southern District of Iowa, the cases were dismissed and severed as to all defendants other than Doe 1, by District Judge Stephanie M. Rose. Doe #18 in one of the cases had moved to sever and dismiss. The court granted that Doe's motion, and sua sponte severed and dismissed in the other cases as well.

December 20, 2013, Decision, Severing and Dismissing as to Does 2-39, Hon. Stephanie M. Rose, US District Judge

Commentary & discussion:

TorrentFreak Ray Beckerman, P.C.

Against Oversight: Why Fixing the Oversight of Canadian Surveillance Won't Solve the Problem

Michael Geist Law RSS Feed - Tue, 2014/02/04 - 04:21
Last summer, I discussed the Snowden leaks and concerns about Canadian surveillance activities with a senior government official. The official remarked that in the wake of the Snowden revelations the political risk did not lie with surveillance itself, since most Canadians basically trusted their government and intelligence agencies to avoid misuse (the steady stream of Snowden leaks and Canada's increasingly apparent role may have changed this analysis). Rather, the real concern was with being caught lying about the surveillance activities. This person was of the view that Canadians would accept surveillance, but they would not accept lying about surveillance programs.

Those comments came to mind over the past week with the latest revelations about CSEC metadata surveillance. While the story has been characterized as an airport wifi surveillance issue, it is clear that the airport wifi angle misses the real concern. The leaked document and subsequent explanations reveal an attempt to identify travel patterns and geographic locations using user ID data over a two week period provided by a Canadian source (CSEC referred to this as metadata in the Senate committee hearing yesterday) along with a database of geo-locations of IP addresses supplied by Quova (I once served as an advisor to Quova). By identifying airport wifi IP addresses along with broader usage data and geo-identifying information, CSEC hopes to be able to identify locational movements of individual users. Bruce Schneier provides a helpful review of the likely intent of the program.

While some argued the program tracks Canadians and is therefore illegal (citing Charter violations and activities beyond the CSEC mandate), the Justice Minister maintains the program is legal and CSEC has defended the program in a release the day after the story broke and again at the Senate committee yesterday. Moreover, the CSEC Commissioner has posted a somewhat cryptic statement that emphasizes the independence of the review process. Ryan Gallagher has responded to those statements with a post arguing the denials are hollow.

Yesterday's Senate committee hearing did provide further insight into the program. CSEC painted the new revelations as a simple application of data it is already collecting. Noting that there have been ministerial approvals for metadata collection since 2005, CSEC suggests that this is effectively an exercise to determine whether the metadata can be used in conjunction with other data to determine location. It steadfastly defended its approach, seeking to distinguish between metadata (data about data) and content. Further, it noted that metadata is deleted according to retention limits contained in the ministerial approval (though no one raised the fact that those retention periods are secret).

I'm left with four takeaways from the past week. 

First, CSEC's surveillance activities of Internet communications in Canada are far more extensive than previously realized. Its trove of metadata - presumably obtained with the cooperation of Canada's major telecom companies - provides enormous insight into the communications habits and activities of millions of Canadians. The use of metadata has been the subject of some concern from the CSEC Commissioner, yet the full scope of activities remain largely secret. Moreover, the ministerial directive on metadata appears to be so broad that it enables widespread tracking and surveillance as CESC is able to mine the data for a myriad of purposes.

Given those capabilities, assurances that metadata surveillance is less invasive than tracking the content of telephone calls or Internet usage ring hollow. Metadata can include geo-location information, call duration, call participants, and Internet protocol addresses. While officials suggest that this information is not sensitive, there are many studies that have concluded otherwise. These studies have found that metadata alone can be used to identify specific persons, reveal locational data, or even disclose important medical and business information. I discuss the issues associated with metadata - including Supreme Court of Canada and Bill C-13 concerns - here. For CSEC to argue that it otherwise does not track Canadians because it only accesses metadata, is misleading at best.

Second, the geographical limits of CSEC - its framework requires that foreign intelligence activities "not be directed at Canadians or any person in Canada" - are being completely blurred. The commingling of data through integrated communications networks and "borderless" Internet services residing on servers around the world suggests that distinguishing between Canadian and foreign data seems like an outdated and increasingly impossible task. CSEC's repeated references to the "global Internet" as opposed to the Internet might well be an attempt to emphasize the foreign component of largely Canadian-based activities. Indeed, the fact that CSEC focuses on Canadian-based metadata (CSEC was asked yesterday why it doesn't collect data from other countries instead) ensures that most of its metadata will include a Canadian component, thereby increasing the likelihood of Canadian surveillance.

Third, the government (including Justice and CSEC) are confident that the programs are legal under the current CSEC mandate. The metadata program operates under ministerial approval, which CSEC would argue extends to uses such as the IP location (or airport wifi) tests. Given the fears of being caught lying, it seems unlikely officials would adopt this position without internal legal reviews and advice.

Fourth, fixing the oversight of CSEC won't solve the problem. Better oversight is currently being touted as the solution to the surveillance problem. The Liberals are proposing a new parliamentary committee review committee, the federal privacy commissioner has identified opportunities for better reporting and oversight, and Ontario privacy commissioner Ann Cavoukian has called for improved transparency and accountability.

Reforms to the current oversight system are needed but the recent experience demonstrates why they are not sufficient. The current system would certainly benefit from external reviewers, who might be more aggressive in questioning the scope of CSEC programs and the stretching of its mandate. Yet the far bigger problem lies with the law itself: 
  • The use of metadata should be openly examined by acknowledging that data mining capabilities mean that metadata can have the same privacy implications of the content of messages. Allowing CSEC to conduct widespread surveillance under the guise that it's "only metadata" is an incredible violation of basic privacy expectations of most Canadians. The general ministerial authorization has led to a system of widespread surveillance. The scope of metadata must be better defined and judicial authorizations for specific collections instituted.
  • While the current surveillance statutes may have been developed in a world where geography mattered, the communications borders have been largely blurred leaving a North American communications network that has little regard for national boundaries. Canadian law is therefore increasingly unable to provide credible assurances about the limits of domestic collection. As long as CSEC provides the illusion that there is a "global Internet" and a "domestic Internet" that are somehow different, its activities will unquestionably feature a prominent domestic component.
  • Data sharing between agencies and between countries should be subject to strict limits, yet the Mosley federal court decision and the European Parliament's discomfort with Canadian practices highlight how these limits need to be re-examined. CSEC officials often claim there are limits, but the Snowden leaks have renewed doubts about what happens out of the public spotlight.
Improved oversight will help, but it won't solve these issues. The substantive law itself needs open debate and reform, with clear, public information on the limits of metadata and geography. Without it, better oversight will leave the foundational problems behind Canadian surveillance largely unchanged. only metadata

Steve Anderson (February 4th)

Bill C-11 - Tue, 2014/02/04 - 01:00

Thank you for this opportunity to present before the committee regarding the Trans-Pacific Partnership agreement. I'm Steve Anderson, the executive director of OpenMedia.ca.

Founded in 2008, OpenMedia.ca is a community-based, award-winning civic engagement organization working to safeguard the open Internet. We work to bring citizens' and innovators' voices into the digital policy-making process.

OpenMedia is probably best known for our stop the meter campaign that engaged over half a million Canadians to stop meter billing in Canada focused on telecommunications prices. It was the largest online campaign in Canadian history.

In addition to our civic engagement work, we also regularly participate in policy processes and produce public policy reports and recommendations. Many of our recommendations, in particular regarding telecommunications, have now thankfully been adopted as official government policy.

One of our top concerns at the moment is the IP chapter in the Trans-Pacific Partnership agreement, specifically copyright within the IP chapter.

We're working with hundreds of thousands of people in our own trans-Pacific network of public interest groups and web businesses to push for and encourage a balanced copyright provision in the TPP. We are working, as I said, in our own crowdsource process to develop copyright rules that we feel are more befitting of the 21st century.

Our concern with the TPP is focused on the intellectual property chapter, as I mentioned, and its potential limitations on free expression online, commerce, and access to knowledge.

Over 135,000 people have signed on to a campaign that we've run reflecting these same concerns. These concerns are echoed by Canadians and I have, in a sense, crowdsourced this presentation for you today. I asked Canadians online over the last week to let me know what they think I should say, and I did my best to incorporate their input into this presentation. Throughout the presentation, I'll mention a few direct comments that people sent in to me.

The Canadians I heard from were broadly critical of the TPP and their concerns fell roughly into three main categories: the restriction and even censorship of expression in commerce; concerns about the TPP's implications for personal privacy; and thirdly, what many deem as the secretive, closed, and undemocratic TPP negotiating process.

Starting with the first concern—the implications on expression in commerce—Canada took 10 years, as I'm sure many of you know, to pass our copyright policies in Bill C-11. When I attended a TPP negotiating round in Auckland, I asked our own TPP chief negotiator if she would commit to uploading our copyright law and not overriding it through the TPP process. She refused to make that commitment.

Generally, I don't think Bill C-11 is exactly how I would have written it, but I think it's a reasonable compromise. But if we get into some of the specifics of the TPP that have been unfortunately revealed through leaked documents, I think we can start with digital locks or technological protection mechanisms.

The U.S. proposal in the TPP would increase the penalties for circumvention and restrict the ability for Canada to create new digital lock exceptions.

On the issue of digital locks, a woman online, named Monica, wrote into our process, and I want to convey this to you today. She said that as part of the special needs community, she wants to be able to continue sharing resources with others without fear of sanctions. As a community, they are often isolated, and without the Internet, they would be even more so. So the TPP threatens to limit the flexibility and exceptions on copyright that those with disabilities depend upon in their use of technology.

According to leaked documents, the TPP would also remove our relatively fair, I would say, notice system for dealing with those accused of copyright infringement. Instead, they would create new, costly liabilities for online service providers and ISPs. This increased cost for Internet service providers will result in Canadian consumers paying more for telecom services. As I'm sure you're aware, we pay some of the highest prices in the industrialized world for telecom services, and increasing fees is the last thing Canadians need right now.

The new business costs could knock independent Internet service providers—the smaller players—out of business and remove choice from the telecom marketplace. The liability costs could also add a barrier to entry for online entrepreneurs that are increasingly critical to our economy.

In short, if this U.S.-backed TPP-ISP liability proposal is adopted, it would mark a major step back for the government's commitment to lower telecom prices and improve choices.

Just to make this a little more concrete, on a daily basis countless photographs and other content are shared through new innovative services that are fundamental to our thriving economy. These services are also threatened by these new liabilities and regulations proposed in the TPP. One example of one online service provider is Vancouver-based HootSuite, which in August raised over $165 million from investors, marking the largest private placement for a privately held tech company in Canada. Another example is Ontario-based e-commerce platform Shopify, which passed the $1 billion evaluation mark this December; and then let's not forget Toronto-based Tucows Inc., which is the world's largest publicly traded domain name registrar.

These companies are threatened by this new liability that will be in the TPP, if it goes through as the U.S. is hoping it will. Do we really want to threaten to burden these budding businesses with new costs and regulations? Do we want to create a new cost that prevents the next HootSuite or Shopify from starting in the first place? Furthermore, as everything from our cars to our fridges are connected to the Internet, these proposed liabilities and costs fundamentally threaten to create red tape for a dizzying array of services. The new liabilities could be particularly damaging to the emerging Internet-fuelled sharing economy that is currently driving value across a range of sectors.

According to the Information Technology Association of Canada, the national Internet economy accounted for 3% of Canada's gross domestic product in 2010, compared to an average of 4.7% in the United States. It's estimated that ratio will become more out of balance if we don't take action to invest in our digital economy. We simply cannot afford to add new red tape and costly regulations to online businesses and commerce, while increasing telecom costs for Canadians.

Increasing ISP liabilities is also a threat to individual expression online. According to IP experts the TPP proposals could result in ISPs taking down and even blocking content based on accusations. In short, the TPP represents a regime that could amount to widespread Internet censorship. One commentator online had this to say on the topic:

Censorship of any kind is undemocratic. It has no business in our society and we should actively DISTANCE ourselves from such heavy-handed policies.

Here is the fundamental point. There's no way that increasing online liabilities as proposed in the TPP is in the national interest of Canada. Old media conglomerates in Hollywood have no problem pushing for policies that will hold back the Canadian economy or free expression, but legislators surely should.

Beyond new service liabilities, there's also concern about the TPP criminalizing common activities that involve small-scale and often accidental copyright infringement, such as sharing a recipe online. According to intellectual property experts and Professor Sean Flynn, the U.S. TPP proposal would severely increase penalties for copyright infringement even when done without commercial intent. He notes that we could even be looking at controversial copyright cases in the U.S. where teenagers and their mothers have been required to pay big record companies hundreds of thousands of dollars for copying music for personal use.

Canadian copyright law now includes an important distinction with respect to statutory damages as it features a cap of $5,000 for non-commercial infringement.

As it stands, we already have copyright trolls trying to use copyright litigation as a business model. Under the TPP, damages could skyrocket. We could see many more of those court cases and we could see Canadians much more timid and fearful online.

Podcast: What does David Cameron’s Great Firewall look like?

Here's a reading of a recent Guardian column, What does David Cameron's Great Firewall look like? which debunks the UK government's stupid arguments for its national anti-porn firewall:

David Cameron's attempt to create a Made-in-Britain version of Iran's "Halal Internet" is the worst of both worlds for parents like me. Kids are prevented from seeing things that they need to access – sites about sexual health, for example – and I still have to monitor my daughter all the time when she uses the net (or teach her how to cope with seeing things no kid should see) because the filter won't stop her from accessing the bad stuff.

And for parents who don't understand that filters are bunkum, the situation is much worse. It's one thing to know that there are risks to your kid from the internet. But parents who rely on the filter are living in bubble of false security. There's nothing more deadly than a false sense of security: If you know your car is having brake problems, you can compensate by driving with extra care, increasing your following distance, and so on. If you falsely believe your brakes to be in good running order, you're liable to find out the hard way that they aren't (if you survive, you can thank Bruce Schneier for that apt and useful analogy).

Mastering by John Taylor Williams: wryneckstudio@gmail.com

John Taylor Williams is a audiovisual and multimedia producer based in Washington, DC and the co-host of the Living Proof Brew Cast. Hear him wax poetic over a pint or two of beer by visiting livingproofbrewcast.com. In his free time he makes "Beer Jewelry" and "Odd Musical Furniture." He often "meditates while reading cookbooks."


Locus recommended reading list for best science fiction and fantasy of 2013

Locus Magazine has published its annual Recommended Reading list, which is my favorite annual guide to the best that science fiction and fantasy have to offer. The 2013 roundup includes several of the books I've reviewed on Boing Boing this year, including Paolo Bacigalupi's Zombie Baseball Beatdown, Charlie Stross's Neptune's Brood, Lauren Beukes's The Shining Girls, Richard Kadrey's Dead Set, Terry Pratchett's Raising Steam, Ian Tregillis's Necessary Evil, Holly Black's The Coldest Girl in Coldtown and Nathan Ballingrud's North American Lake Monsters.

I'm also delighted to see that my novel Homeland (the sequel to Little Brother) made the list!

The whole list is just a fantastic signposting of the best the field has to offer.

2013 Locus Recommended Reading List

(via Tor.com)

Internet Sales Tax Update

IPBlog (Calgary) - Thu, 2014/01/30 - 08:00
We recently reported on a case out of New York State, which dealt with the question of sales tax liability in the case of online sales. That decision (in Overstock.com v. New York Taxation Dept. and the companion case of Amazon.com v. New York Taxation Dept.) decided that internet retailers ...

What Happens When a Franchise Agreement Ends, Part 1: Restrictive Covenants

IPBlog (Calgary) - Wed, 2014/01/29 - 16:00
- A “Pet Valu” franchisee in Ontario claimed that sales were declining, so she terminated the Franchise Agreement. After termination of the agreement, her husband established a competing “Pet Stuff” business nearby. When a franchise location fails as it did in this case, what happens with the “restrictive covenants” in the ...

Competition Bureau Raises Wireless Competition Concerns, Concludes Big Three Have "Market ...

Michael Geist Law RSS Feed - Wed, 2014/01/29 - 08:51
The Competition Bureau of Canada has just released its submission to the CRTC's consultation on domestic roaming rates and with it left no doubt about its concerns with the state of wireless competition in Canada. Despite repeated efforts of the big three incumbent providers to argue that the Canadian market is competitive, the Competition Bureau has concluded that the big three enjoy "market power." As the Bureau notes, market power is "the ability of a firm or firms to profitably maintain prices above competitive levels (or similarly restrict non-price dimensions of competition) for a significant period of time." 

Given its market power, the Bureau finds the wireless incumbents can use roaming to shield themselves from competition. It states:

"Incumbents can use the terms and conditions of roaming agreements to raise their rivals’ costs such that incumbents are shielded from the full effect of their the rivals’ (i.e., entrants) entry. Making it more costly for entrants to access incumbent networks through roaming agreements is one way for an incumbent service provider to relax competitive pressure."

In light of the competition concerns, the Bureau concludes that the CRTC should establish regulatory safeguards on domestic roaming pricing. In fact, it states that given the choice between a remedy that goes further than necessary and one that does not go far enough, it would prefer a remedy that is more than strictly necessary.

The Bureau report notably rejects the wireless companies' arguments that the market is competitive, particularly the Church and Wilkins report on the issue:

In the Bureau's view, the C-W Report does not provide adequate support for Bell’s claims that mobile wireless markets in Canada are competitive. Instead, based on the factors described above, the Bureau believes that incumbent service providers do have market power in the provision of retail mobile wireless services, and the CRTC should take this fact into account when considering this matter.

The Competition Bureau submission is a bombshell finding, confirming concerns about the lack of competitiveness in the Canadian wireless market. It opens the door to regulatory action to address the ongoing competition problems and firmly rejects persistent incumbent claims that there is no reason for worry.

Why Canada's Telecom Companies Should Come Clean About Customer Information

Michael Geist Law RSS Feed - Wed, 2014/01/29 - 00:36
Earlier this week, I wrote a column (Toronto Star version, homepage version) arguing that Canada's telecom companies should come clean about their disclosures of customer information. That column was in response to a public letter from leading civil liberties groups and academics  sent to Canada's leading telecom companies asking them to shed new light into their data retention and sharing policies. The letter writing initiative, which was led by Christopher Parsons of the Citizen Lab at the University of Toronto's Munk School of Global Affairs, is the latest attempt to address the lack of transparency regarding how and when Canadians' personal information may be disclosed without their knowledge to law enforcement or intelligence agencies.

That initiative has now effectively been joined by the Office of the Privacy Commissioner of Canada and NDP MP Charmaine Borg. Chantal Bernier, the interim Privacy Commissioner of Canada, released recommendations yesterday designed to reinforce privacy protections in the age of cyber-surveillance. The report includes the following recommended reform to PIPEDA:

require public reporting on the use of various disclosure provisions under PIPEDA where private-sector entities such as telecommunications companies release personal information to national security entities without court oversight.

In addition, Borg has filed an order paper question (Q-233) seeking detailed data on requests to telecom companies from various government agencies.

As my column notes, concerns with telecom secrecy has become particularly pronounced in recent months as a steady stream of revelations that have painted a picture of ubiquitous surveillance that captures "all the signals all the time", sweeping up billions of phone calls, texts, emails, and Internet activity with dragnet-style efficiency.

Canada's role in the surveillance activities remains a bit of mystery, yet there is little doubt that Canadian telecom and Internet companies play an important part as intermediaries that access, retain, and possibly disclose information about their subscribers' activities.

In the United States, companies such as Verizon and AT&T have announced plans to issue regular transparency reports on the number of law enforcement requests they receive for customer information. The telecom transparency reports come following a similar trend from top Internet companies such as Google, Twitter, Microsoft, and Facebook.

The first Verizon report was released last week and it revealed that there are hundreds of thousands of requests for subscriber information every year. Last year this included more than 30,000 demands for location data, the majority of which lacked a warrant.

By contrast, Canada's telecom companies remain secretive about their participation in the surveillance activities, with no transparency reports and no public indications of their willingness to disclose customer information without a court order.

The scope of such participation is potentially very broad. Not only is there the prospect of co-operation with Canadian intelligence agencies, but Canadian networks and services are frequently configured to allow for U.S. surveillance of Canadian activities.

For example, Bell and Rogers link their email systems for residential customers to U.S. giants with Bell linked to Microsoft and Rogers linked to Yahoo. In both cases, the inclusion of a U.S. email service provider may allow for U.S. surveillance of Canadian email activity. Moreover, Bell requires other Canadian Internet providers to exchange Internet traffic outside the country at U.S. exchange points, ensuring that the data is potentially subject to U.S. surveillance.

Secret disclosures of subscriber information extend beyond surveillance programs run by Canadian and U.S. intelligence agencies. Under Canadian law, telecom companies and Internet providers are permitted to disclose customer information without a court order as part of a lawful investigation. According to data obtained under Access to Information, the RCMP has successfully obtained such information tens of thousands of times.

In fact, Bill C-13, the so-called "cyberbullying" bill, includes a provision that is likely to increase the number of voluntary disclosures without court oversight since it grants telecom companies and Internet providers complete immunity from any civil or criminal liability for those disclosures.

The privacy implications of this secret disclosure system are enormous, potentially touching on the private data of hundreds of thousands of Canadians. Yet the policies seemingly operate between the cracks in the law, permitting some disclosures without court oversight, blocking notifications to those who are affected, and even providing financial compensation from taxpayers to the telecom companies for their co-operation.

Canadian privacy law requires telecom companies and Internet providers to adhere to an openness principle that includes making "readily available to individuals specific information about (its) policies and practices relating to the management of personal information."  Those companies have failed to comply with the spirit of this principle, suggesting that Privacy Commissioner of Canada should consider supplementing last week's civil society letter with an investigation of her own. a href=

Another Step Toward the TPP: Canada Moves to Ratify Five Intellectual Property Treaties

Michael Geist Law RSS Feed - Wed, 2014/01/29 - 00:34
The Canadian government quietly tabled five intellectual property treaties in the House of Commons on Monday:

Mr. Speaker, pursuant to Standing Order 32(2) I have the honour to table, in both official languages, five treaties, entitled, one, Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, adopted at Madrid on June 27, 1989, as amended on October 3, 2006, and on November 12, 2007; two, the Singapore Treaty on the Law of Trademarks, adopted at Singapore on March 27, 2006; three, the Nice Agreement Concerning the International Classifications of Goods and Services for the Purposes of the Registration of Marks, adopted in Nice on June 15, 1957, as revised at Stockholm on July 14, 1967, and at Geneva on May 13, 1977, and amended on September 20, 1979; four, the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs adopted at Geneva on July 2, 1999; and, five, Patent Law Treaty, done at Geneva on June 1, 2000.

I wrote about the move toward ratifying these treaties last year. The Industry Committee recommended their ratification despite the fact that no witnesses raised the issue during lengthy committee hearings. So why the recommendation? I suggested then that the decision is primarily designed to place Canada in position to ratify the Canada - EU Trade Agreement and the Trans Pacific Partnership. While neither of those trade agreements are public, leaks suggest that both include provisions requiring signatories to adopt those IP treaties. The five IP treaties, which focus largely on administrative issues, will now enter the treaty ratification process, which includes a 21-sitting day period where MPs can initiate debate.
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