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Democracy in Action: Reflecting on the Toronto TPP Town Hall

Michael Geist Law RSS Feed - Thu, 2016/06/16 - 09:08

Yesterday I had the pleasure of appearing as a panelist at the government’s town hall meeting in Toronto on the Trans Pacific Partnership. The town hall, held in a packed auditorium at the University of Toronto, featured International Trade Minister Chrystia Freeland (in listening mode) along with three panelists (myself, C. D. Howe’s Daniel Schwanen, and Unifor’s Jerry Dias) and moderator Dan Breznitz of the Munk School.

It is easy to become cynical about the government’s emphasis on public consultations. They are happening everywhere – innovation, digital CanCon, TPP, and soon copyright to name a few. But to attend yesterday’s TPP town hall was to witness the remarkable passion and enthusiasm for public engagement on critical public policy issues. The event ran nearly 2 1/2 hours with dozens of speakers from an incredible range of ages, backgrounds, and interests. There were librarians and archivists focused on copyright term extension and digital locks; several doctors spoke to the impact of the TPP on public health and access to medicines, food experts highlighted the dangers associated with food security, environmental activists focused on the TPP and climate change, and speakers of all ages (including a 92 year old woman) expressed concern with the investor-state dispute resolution provisions. Some speakers quoted from Freeland’s book on plutocrats to note the inconsistency between the TPP and the Minister’s prior writing. An aboriginal student nearly broke down speaking about the need to consult first nations, bringing the room to its feet.

While there has been a tendency to dismiss critics of the TPP, there is an informed public anxious to make their views on the agreement known to the government. The audience was knowledgeable, citing specific issues and their potential impact. Conservative MPs have been urging the government to simply get on with TPP ratification, falsely claiming that they engaged in widespread consultation. The audience made it very clear that no one in the prior government had ever asked for their opinion as the negotiations unfolded.

Freeland emphasized that there is no rush to ratify the TPP as no country has done so and everyone has until at least 2018 before the agreement can take effect. The government seems content to listen, study the deal, and adopt a neutral approach to the question of ratification. In fact, the deadline for submissions to the Standing Committee on International Trade has been extended once again, with October 31st now the last date for submissions. That suggests that there will still be ample opportunities to speak out and if the Toronto TPP town hall is any indication, a willingness of the government to listen.

The post Democracy in Action: Reflecting on the Toronto TPP Town Hall appeared first on Michael Geist.

Canada’s Surveillance Crisis Now Hiding In Plain Sight

Michael Geist Law RSS Feed - Tue, 2016/06/14 - 14:27

Three years ago this month, Edward Snowden shocked the world with a series of disclosures that revealed a myriad of U.S. government-backed surveillance programs. The Snowden revelations sparked a global debate over how to best strike the balance between privacy and security and led to demands for greater telecom transparency.

My weekly technology law column (Toronto Star version, homepage version) notes that the initial Canadian response to the surveillance debate was muted at best. Many Canadians assumed that the Snowden disclosures were largely about U.S. activities. That raised concerns about Canadian data being caught within the U.S. surveillance dragnet, but it did not necessarily implicate the Canadian government in the activities.

Within months, it became clear that Canadian securities agencies were enthusiastic participants in numerous surveillance initiatives. Canadians played a lead role in projects focused on tracking travellers using airport Wi-Fi networks, monitoring millions of daily uploads and downloads to online storage sites, aggregating millions of emails sent by Canadians to government officials, and targeting mobile phones and app stores to implant spyware.

Moreover, the U.S. collection and mining of “metadata” – the data about data that covers geographic information and details about social links – was also at the heart of Canadian activities with a ministerial authorization granting officials the power to capture the potentially sensitive personal information with minimal oversight.

While these programs attracted attention for a day or two, it was the Conservatives’ introduction of Bill C-51, the anti-terrorism legislation that granted the government a host of new powers, that finally succeeded in generating a sustained focus on Canadian surveillance law.

The bill became law with few amendments, but emerged as the public’s shorthand for the need for reforms to surveillance activities. Public Safety Minister Ralph Goodale and the new Liberal government have promised changes, with expectations that they will focus initially on a new “super” oversight body for security agencies and later open the door to further amendments.

Yet despite assurances that improved oversight will provide adequate safeguards against intrusive surveillance, in recent months it has become apparent that weak oversight represents only a small part of the problem.

Consider this year’s report from the Communications Security Establishment (CSE) commissioner, who uses legal language to obscure an otherwise clear admission that there are ongoing metadata violations within the CSE. The report notes that metadata activities were “generally conducted in compliance with operational policy” and that the “CSE has halted some metadata analysis activities” that were the subject of previous criticisms.

The use of words like “generally” and “some” are no accident. The CSE Commissioner could have just as easily written that the CSE still does not conduct its metadata activities in full compliance with the law and that it has refused to stop some activities that were the subject of complaints. Yet the soft framing turns what should be a major story and source of concern into something largely ignored by the general public.

The same is true for a series of admissions related to “privacy breaches” at the CSE. In plain language, this suggests that Canadian security intelligence agencies revealed information to foreign agencies in a manner that violates the law. Indeed, reports indicate that this includes identifying information arising from phone calls and Internet usage.

These are not privacy breaches in the conventional sense of an inadvertent loss of information or a malicious hack into government systems. Those are privacy breaches largely beyond the control of the holder of the information. Rather, these are unlawful disclosures that run afoul of the law. In fact, rather than come clean about the violations, the CSE has refused to disclose the number of “privacy breaches” since 2007 and the government has said it cannot identify those affected.

Three years after Snowden thrust surveillance onto the public agenda, it is time for Canada to reshape how its securities agencies operate. The desperate need for a full airing of Canadian surveillance practices comes not from what was hidden for many years, but what has been happening in plain sight.

The post Canada’s Surveillance Crisis Now Hiding In Plain Sight appeared first on Michael Geist.

Security Agencies Need to Fess Up About Illegal Privacy Breaches

Michael Geist Law RSS Feed - Tue, 2016/06/14 - 14:25

Appeared in the Toronto Star on June 13, 2016 as Security Agencies Need to Fess Up About Illegal Privacy Breaches

Three years ago this month, Edward Snowden shocked the world with a series of disclosures that revealed a myriad of U.S. government-backed surveillance programs. The Snowden revelations sparked a global debate over how to best strike the balance between privacy and security and led to demands for greater telecom transparency.

The initial Canadian response to the surveillance debate was muted at best. Many Canadians assumed that the Snowden disclosures were largely about U.S. activities. That raised concerns about Canadian data being caught within the U.S. surveillance dragnet, but it did not necessarily implicate the Canadian government in the activities.

Within months, it became clear that Canadian securities agencies were enthusiastic participants in numerous surveillance initiatives. Canadians played a lead role in projects focused on tracking travellers using airport Wi-Fi networks, monitoring millions of daily uploads and downloads to online storage sites, aggregating millions of emails sent by Canadians to government officials, and targeting mobile phones and app stores to implant spyware.

Moreover, the U.S. collection and mining of “metadata” – the data about data that covers geographic information and details about social links – was also at the heart of Canadian activities with a ministerial authorization granting officials the power to capture the potentially sensitive personal information with minimal oversight.

While these programs attracted attention for a day or two, it was the Conservatives’ introduction of Bill C-51, the anti-terrorism legislation that granted the government a host of new powers, that finally succeeded in generating a sustained focus on Canadian surveillance law.

The bill became law with few amendments, but emerged as the public’s shorthand for the need for reforms to surveillance activities. Public Safety Minister Ralph Goodale and the new Liberal government have promised changes, with expectations that they will focus initially on a new “super” oversight body for security agencies and later open the door to further amendments.

Yet despite assurances that improved oversight will provide adequate safeguards against intrusive surveillance, in recent months it has become apparent that weak oversight represents only a small part of the problem.

Consider this year’s report from the Communications Security Establishment (CSE) commissioner, who uses legal language to obscure an otherwise clear admission that there are ongoing metadata violations within the CSE. The report notes that metadata activities were “generally conducted in compliance with operational policy” and that the “CSE has halted some metadata analysis activities” that were the subject of previous criticisms.

The use of words like “generally” and “some” are no accident. The CSE Commissioner could have just as easily written that the CSE still does not conduct its metadata activities in full compliance with the law and that it has refused to stop some activities that were the subject of complaints. Yet the soft framing turns what should be a major story and source of concern into something largely ignored by the general public.

The same is true for a series of admissions related to “privacy breaches” at the CSE. In plain language, this suggests that Canadian security intelligence agencies revealed information to foreign agencies in a manner that violates the law. Indeed, reports indicate that this includes identifying information arising from phone calls and Internet usage.

These are not privacy breaches in the conventional sense of an inadvertent loss of information or a malicious hack into government systems. Those are privacy breaches largely beyond the control of the holder of the information. Rather, these are unlawful disclosures that run afoul of the law. In fact, rather than come clean about the violations, the CSE has refused to disclose the number of “privacy breaches” since 2007 and the government has said it cannot identify those affected.

Three years after Snowden thrust surveillance onto the public agenda, it is time for Canada to reshape how its securities agencies operate. The desperate need for a full airing of Canadian surveillance practices comes not from what was hidden for many years, but what has been happening in plain sight.

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 Security Agencies Need to Fess Up About Illegal Privacy Breaches appeared first on Michael Geist.

preparation

Fair Duty by Meera Nair - Mon, 2016/06/13 - 08:38

When the Copyright Act was last amended in 2012, the government of the day sought to accomplish a number of objectives. The summary of Bill C-32 (unveiled for first reading on 10 June 2010) detailed the legislative intent:

(a) update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards;
(b) clarify Internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright;
(c) permit businesses, educators and libraries to make greater use of copyright material in digital form;
(d) allow educators and students to make greater use of copyright material;
(e) permit certain uses of copyright material by consumers;
(f) give photographers the same rights as other creators;
(g) ensure that it remains technologically neutral; and
(h) mandate its review by Parliament every five years.

The language of (c) and (d) is clear; “greater use” implies greater than what had previously been feasible. The specific mention of of education as a permissible purpose of fair dealing and the introduction of exceptions to facilitate digital distribution by libraries or distance education programs, suggested that educators, libraries and students could enjoy greater use of copyright materials. With respect to (e), the implementation of exceptions for time or format shifts, the making of backups, and the creation of non-commercial user-generated content were all to the advantage of consumers. Yet the previous government’s insistence that digital locks reign supreme, rendered many of the new exceptions inert and reduced previous possibilities for unauthorized use of copyright material.

In 2010, it was no secret that the digital locks provision of Bill C-32 was modeled on the United States’ Digital Millennium Copyright Act of 1998. Since its inception, the supremacy of locks in the United States has been systematically challenged through triennial reviews. Advocates for the lifting of blanket prohibition on circumvention could plead their case to the Librarian of Congress; if successful, they were granted a three-year lifting of the prohibition. (A notable reprieve occurred in 2006, in relation to educational uses of audio-visual works.) The latest review occurred in 2015; Mila Owen and Henry Thomas describe the outcome.

By the time C-32 was under discussion in Canada, it was abundantly evident that American overreach in protection of digital locks was impeding legitimate unauthorized uses (such as fair use) under American law.

Michael Geist declared Bill C-32 as “flawed but fixable.” However, the government refused to entertain thoughts of adjusting the prohibition on breaking digital locks; despite the logic that breaking a lock for a non-infringing use, should not trigger a charge of infringement. At a Standing Committee meeting on 25 November 2010, Minister of Canadian Heritage James Moore appeared unconcerned about the wider implications of casting locks as sacrosanct; in response to a question posed by Liberal Member of Parliament Marc Garneau, about the inconsistency in the government’s actions, Moore gave a peculiar answer:

[It] is a question about balance, and as far as my personal digital media consumption habits, I personally choose to buy products that don’t have digital locks. It’s my right as a consumer to be able to do that. As we’re seeing increasingly with technology, certainly the music industry, the television industry, and the film industry are creating products where people have the right to shift things from one format to another. … if you look at all the submissions we have received–we’re talking about music, television, video, video games, the software industry–everybody believes that if they’ve invested money, labour, and effort to create products and decide to protect those products by whatever mechanisms they choose to digitally, they should be allowed to do that. And consumers are free to purchase or not purchase those devices.

Garneau then questioned Jean-Pierre Blais (Assistant Deputy Minister, Cultural Affairs, Department of Canadian Heritage) about digital locks, with specific reference to fair dealing:

I would like to ask for clarification on the issue of digital locks and fair dealing. Would you say that in this bill digital locks trump everything? For example, if somebody wants to produce educational materials under fair dealing but they have digital locks on them, would the person be prevented from doing so?

It required repeating the question, but Garneau was finally given an answer:

Garneau: Let me ask specifically about education. That’s the one I brought up. Do digital locks trump the use of material, copyrighted material, for educational purposes under “fair dealing”?
Jean-Pierre Blais: In the bill, as drafted, the answer is yes.

As we approach 2017, perhaps Minister Marc Garneau could share his past experiences with Minister Mélanie Joly and Minister Navdeep Bains as they prepare for the mandated review of the Copyright Act.

 


A Peek at A/B Testing in the Wild

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

The Princeton Web Census: a 1-million-site measurement and analysis of web privacy

Freedom to Tinker - Wed, 2016/05/18 - 11:59
Web privacy measurement — observing websites and services to detect, characterize, and quantify privacy impacting behaviors — has repeatedly forced companies to improve their privacy practices due to public pressure, press coverage, and regulatory action. In previous blog posts I’ve analyzed why our 2014 collaboration with KU Leuven researchers studying canvas fingerprinting was successful, and […]

Is Tesla Motors a Hidden Warrior for Consumer Digital Privacy?

Freedom to Tinker - Wed, 2016/05/18 - 07:00
Amid the privacy intrusions of modern digital life, few are as ubiquitous and alarming as those perpetrated by marketers. The economics of the entire industry are built on tools that exist in shadowy corners of the Internet and lurk about while we engage with information, products and even friends online, harvesting our data everywhere our […]
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