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Re: Post-Access Copyright era off to a rocky start

Russell McOrmond on Disqus - Thu, 2014/01/16 - 08:13

I think anyone who took a moment to look would realize that "Access Copyright" and Canadiana are unrelated services. I'm also only a system administrator here, and it is no more "my service" than http://atlas.agr.gc.ca/agmaf/ is "my service" because I happened to work there for a while.

Canadiana is: Access, No Copyright --- this is a web service for customers that offers *access* to digitized works from the public domain. There are no copyright related restrictions, and what people are paying for is access and the tools to search to find what they are looking for. It is primarily funded by educational institutions, and the service is available for free to anyone at those institutions. Canadiana also offers a subscription service for people who want to access from outside of these institutions. Even though most of the pages are no-subscription-required, John of course likes to highlight the tiny subset that is subscription required in his misdirection.

AC is No Access, Undisclosed Copyright -- AC doesn't offer a web service to get access to the works in in its repertoire, or even a search engine or database that lists all the works in its repertoire. This is a common complaint from people who would like to get what AC claims it offer. They complain that they don't know what they are paying for as they don't even get a list of covered authors and covered works.

I know John is trying to distract people by suggesting I work at an organization that is more restrictive in some way than AC, but it is not even an apples-to-oranges comparison. There are competitors to AC which offer both Access and Licensing of the works they offer access to, and these online databases are what Libraries are actively moving to and why they see the AC blanket license as largely irrelevant.

If AC actually offered useful services like the database access services, rather than trying to push a blanket license for an undisclosed series of works that it doesn't even offer access to, then maybe AC would become be more relevant.

That a current staff member at the Writers Union continues to promote the interests of AC rather than the often competing interests of Writers Union member writers is an internal issue within the union. Hopefully members will increasingly recognize the problem, and handle staff appropriately.

Why the Justice Ministers' Report Fails To Make the Case for Bill C-13's Lawful Access Provisions

Michael Geist Law RSS Feed - Thu, 2014/01/16 - 05:15
Earlier this week, I posted on how Canadian law already features extensive rules that can be used to target cyberbullying, which raises questions about the prime justification for Bill C-13 (the cyber-bullying/lawful access bill). That post attracted a response from the Department of Justice, which (consistent with politicians and other officials) points to a June 2013 report on cyberbullying from federal and provincial justice ministers as the basis for Bill C-13.

While the government seems to think the report provides a solid foundation for its bill, the reality is that the justification in the report for the lawful access provisions stands on very shaky ground.

First, the report offers practically no evidence to support the contention that the new lawful access provisions are needed. The report features extensive discussion on intimate images, but there is no substantive analysis on the need for lawful access provisions. Rather, the report recommends the lawful access provision by simply stating as fact that the current law is insufficient to meet the demands of cyber-investigations without actual evidence presented to support this statement. For example, the report claims that new preservation orders are needed for ISPs to preserve data that might otherwise be deleted, but no evidence is presented that data deletion has posed an investigative problem.

Second, the report does not specifically recommend that the new warrants carry the lower threshold found in Bill C-13. Rather, it merely recommends the creation of new investigative tools in which "the level of safeguards increases with the level of privacy interest involved." The government seems to have assumed that metadata has a lower privacy interest, yet the Supreme Court of Canada reached the opposite conclusion last year in R. v. Vu, specifically citing to the privacy interests associated with the metadata. In fact, given the significant privacy interest associated with metadata and location information, Bill C-13 fails to meet the standard that even the Justice report seems to envision.

Empire State Building sues photographer for photographing topless model

Recording Industry vs The People - Wed, 2014/01/15 - 11:37

In ESRT v. Henson, the Empire State Building has sued a photographer for photographing a topless model on the building's observation deck.

Summons and complaint Ray Beckerman, P.C.

ISPs Push For Two-Tier Internet Based on Data Caps

Michael Geist Law RSS Feed - Wed, 2014/01/15 - 04:25
Net neutrality has been one of the defining Internet policy issues of the past decade. Starting with early concerns that large telecom and Internet providers would seek to generate increased profits by creating a two-tier Internet with a fast lane (for companies that paid additional fees to deliver their online content quicker) and a slow lane (for everyone else), the issue captured the attention of governments and telecom regulators.

My weekly technology law column (Toronto Star version, homepage version) notes that while the net neutrality challenges evolved over time, the core question invariably boiled down to whether Internet providers would attempt to leverage their gatekeeper position to create an unfair advantage by treating similar content, applications or other services in different ways.

In response, net neutrality rules surfaced that were designed to safeguard online competition. Countries such as Chile and the Netherlands included net neutrality requirements within their telecom laws, while others developed regulatory guidelines and principles. In Canada, the Canadian Radio-television and Telecommunications Commission established the Internet traffic management practices in 2009, which serve as the Canadian net neutrality rules.

Concerns over net neutrality may have receded once policies were established, yet Internet providers continued to search for business models that could generate incremental revenues from their networks. Having failed to establish a two-tier Internet based on speed, they now appear to be focused on an alternative two-tier approach based on data usage.

The premise of a two-tier Internet based on data usage stems from the proliferation of data caps among many providers, particularly for fast-growing wireless Internet services.  The days of "unlimited Internet" are over at many providers, replaced by packages that include a fixed amount of data usage each month with expensive overage charges for those that exceed their monthly allocation.

Sensing consumer frustration with data caps, network providers have begun to offer access to some services or content that does not count against the monthly cap. The result is a new two-tier Internet: one Internet that counts against the monthly data cap and another that does not.

For example, last week AT&T, one of the largest U.S. Internet wireless providers, unveiled plans to offer "Sponsored Data", which will allow websites and content owners to essentially pay for users to access their content. Subscribers will access sponsored data in the same manner as other content through AT&T's wireless Internet service, but it will not count against the user's monthly cap.

AT&T argues that the plan does not run afoul of U.S. net neutrality rules since all content is delivered at the same speed (those rules were called into question in a legal decision yesterday). Yet the change creates a two-tier Internet with obvious advantages for deep-pocketed content providers who can promote their services as "data-free", while potentially superior start-up services become perceived as costlier alternatives.

Canadian providers have also begun to examine how data caps can be used to differentiate between content. For example, Bell offers a $5 per month mobile TV service that allows users to watch dozens of Bell-owned or licensed television channels for ten hours without affecting their data cap. By comparison, users accessing the same online video through a third-party service such as Netflix would be on the hook for a far more expensive data plan since all of the data usage would count against their monthly cap.

The Bell plan is currently the subject of a complaint before the CRTC, which maintains that Bell's practices violate the Commission's net neutrality rules by treating similar content in an unequal manner. The complaint will be addressed in the coming months, but regardless of the outcome, it is increasingly clear that there is a new front in the net neutrality fight with Internet providers intent on leveraging data usage to create a two-tier Internet.

Re: Post-Access Copyright era off to a rocky start

Russell McOrmond on Disqus - Tue, 2014/01/14 - 10:57

I'll add some clarifications to the well rehearsed misdirections from John Degen.

If dealing with Access Copyright was just about authors getting paid, then AC would be offering (even promoting) transactional licensing as institutions have been asking for for years, rather than imposing blanket licensing. AC would also be fully disclosing their repertoire so that their potential customers would know what they have to offer and could pay for -- or even what the blanket license did or did not cover.

Given the confusion caused by blanket licensing and a lack of adequately published repertoire, authors are forced to either join AC or not get paid for uses which institutions inadvertently (because of AC caused confusion) think are covered by the AC license. This is a clear case of authors having their choice removed, even if John likes to spin the AC scheme differently -- "We've always been at war with Eastasia"...

Are the fees that AC cuts off the top before giving anything to authors still hovering around 30%? And what about that money for orphaned works that was used to create a foundation? Who gets to decide what happens to this money that should have been given directly to authors?

Institutions know this misdirection by Access Copyright devotees, so I assume John is trying to confuse others into believing that it isn't Access Copyright making it harder for authors to get paid.

It's curious how John tries to misdirect people by bringing up where I happen to work at the moment. I've been fighting on behalf of fellow technology owners and independent creators (including but not limited to software authors) for decades now, only recently starting work at Canadiana.org.

Not that Canadiana is relevant to my rights activist work (my activism isn't on behalf of my current employer), but it it still consistent. Canadiana offers services to digitize and provide access to works. Payments are for access to the website we host, and for the digitization work we do on behalf of clients (primarily educational institutions). The materials are not "behind a subscription" in the way that John claims as these are works in the public domain, where the types of restrictions (legal or technical) John concerns himself with don't even exist.

John is aware of the public domain, lobbying to reduce it (by even further increasing or obfuscating the existing length of copyright) for as long as I've known him (decade+). Reducing the public domain that new authors build upon is also harmful to authors interests, while it does benefit intermediaries like publishers and AC.

When Sysadmins Ruled the Earth: .mobi and .epub

Mikael Vejdemo-Johansson converted my story When Sysadmins Ruled the Earth (from the collection Overclocked) into .mobi and .epub for easy viewing on an e-reader or mobile device. I probably get more fan mail for Sysadmins than for any other story, and it won the Locus Award the year it came out (it was later adapted to comics by JC Vaughn for the IDW book Cory Doctorow’s Futuristic Tales of the Here and Now). Give it a read!

He piloted the car into the data-center lot, badging in and peeling up a bleary eyelid to let the retinal scanner get a good look at his sleep-depped eyeball.

He stopped at the machine to get himself a guarana/modafinil power-bar and a cup of lethal robot-coffee in a spill-proof clean-room sippy-cup. He wolfed down the bar and sipped the coffee, then let the inner door read his hand-geometry and size him up for a moment. It sighed open and gusted the airlock’s load of positively pressurized air over him as he passed finally to the inner sanctum.

It was bedlam. The cages were designed to let two or three sysadmins maneuver around them at a time. Every other inch of cubic space was given over to humming racks of servers and routers and drives. Jammed among them were no fewer than twenty other sysadmins. It was a regular convention of black tee-shirts with inexplicable slogans, bellies overlapping belts with phones and multitools.

Normally it was practically freezing in the cage, but all those bodies were overheating the small, enclosed space. Five or six looked up and grimaced when he came through. Two greeted him by name. He threaded his belly through the press and the cages, toward the Ardent racks in the back of the room.

Flowers From Al 02

Here's the second, concluding part of my reading of my 2003 short story "Flowers From Al," written with Charlie Stross for New Voices in Science Fiction, a Mike Resnick anthology (Here's part one). It's a pervy, weird story of transhuman romance.

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."

MP3 link

Time for a New Plan: With Government's Wireless Strategy in Tatters, Regulation May Be Only Option

Michael Geist Law RSS Feed - Tue, 2014/01/14 - 00:17
The federal government's spectrum auction starts today with its wireless strategy in tatters. Late yesterday, Wind Mobile announced that it was withdrawing from the auction, creating a new entrant vacuum that seems likely to leave some of the prime spectrum in major markets such as Ontario, Alberta, and British Columbia unlicensed and the hope for a renewed competitive wireless environment all but dead. Indeed, the marginal competitive gains of the past few years are now at risk and the government's vision of four strong competitors in every market looks like a pipe dream. The big three managed to scare off Verizon, while the federal government's mixed messages on foreign investment appears to have kept everyone else out.

Having made wireless competition a key policy priority - supported by a national advertising campaign and commitments in the Speech from the Throne - Industry Minister James Moore has little choice but to pursue a different strategy. The government had placed its bets on improving the competitive environment organically through foreign investment and new entrants. With that strategy a failure (a government spokesperson claimed the auction will still be positive for consumers but made no reference to improved competition), it is time to focus instead on regulatory solutions. The move toward regulated domestic roaming represents a starting point (and presumably Wind Mobile's best hope given its lack of spectrum), but more will be needed. Removing all foreign investment restrictions, establishing a regulated mobile virtual network operator market, and even considering structural separation are some of the regulatory choices still available.

If the government still believes that a competitive wireless environment remains a crucial economic concern, it cannot simply sit back as the big three carriers solidify their dominance in the upcoming spectrum auction and the prospect of viable competitors steadily disappears. The government should complete the spectrum auction and then move quickly to address the wireless mess with a strategy supported by targeted regulatory reform.

Summary judgment motions denied without prejudice in ABC v Aereo & WNET v Aereo

Recording Industry vs The People - Mon, 2014/01/13 - 20:04

In ABC v. Aereo and WNET v. Aereo, the District Court has denied both summary judgment motions on the grounds that (a) it would be more efficient for them to be made after discovery is completed and (b) it might be more efficient to determine them after the U.S. Supreme Court has weighed in on the legal issues, after having granted certiorari to review the preliminary injunction ruling.

January 13, 2014, Decision, Denying Both Summary Judgment Motions Without Prejudice, Hon. Alison J. Nathan, District Judge Ray Beckerman, P.C.

Why fiction works

In my latest Locus column, "Cheap Writing Tricks," I ruminate on what makes fiction work -- why we perceive stories as stories, why we care about characters, and how the construction of stories interacts with the human mind (and why How to Win Friends and Influence People is a great writing tool).

There are lots of classes of problems you can throw at your character, from bombs to defuse to tricky parallel parking problems, but the stickiest, most nosiness-evoking problems are the ones that involve other people.

We’ve been solving the ‘‘other people’’ problems since our hominid ancestors began to divide up their labor and work in tribal groups that allowed them to accomplish more collectively than any one individual or family could manage on its own. Solving the collective action problem is the reason for everything from corporations to churches to crime syndicates. It’s no wonder that it’s so hard to avoid eavesdropping on bickering couples or bosses who dress down their subordinates in public.

Best of all: our world is littered with catalogs of the ways in which human misunderstandings turn into problems, and how those problems worsen if not properly tended – they’re called self-help books.

Take ‘‘Twenty Four Standard Causes of Human Misjudgement,’’ the classic 1995 speech by Charlie Munger, Warren Buffet’s business partner. Munger based his work on Robert Cialdini’s 1984 book Influence, a text on marketing techniques. Munger shows how the cognitive blind spots exploited by marketers are also the source of grief in many other walks of life.

For example, the human sensory apparatus is more sensitive to contrasts than it is to absolutes. You’re better at telling whether one thing is hotter than another thing than you are at telling whether something is ‘‘hot’’ on some absolute scale (that’s why you boil a frog by slowly turning up the temperature).

This manifests in human history in all sorts of horrible ways. Whenever you hear about people enduring (or participating in) horrific abuse, chances are the abuse started with small things, little nastinesses that became the new normal. Then the abuse got worse, but just enough worse that those people living within its range became accustomed to it, and then it got worse again. Lather, rinse, repeat and all of a sudden you’re hearing about an old folks’ home where the staff learned not to worry about rats gnawing on the inmates faces.

Cheap Writing Tricks

Re: Post-Access Copyright era off to a rocky start

Russell McOrmond on Disqus - Mon, 2014/01/13 - 06:40

Interpretation of Fair Dealing is only one issue.

Access Copyright(AC) offers a very specific financial service that some authors may choose to use, but can no more be said to "represent" authors than Scotiabank can be said to represent their customers on political issues. AC has been trying to impose themselves on all authors, making it harder for authors to use other mechanisms to get paid. The issue isn't whether authors get paid, as they do through a wide variety of services, but whether authors choice will be respected or whether AC will become mandatory.

It is frustrating that AC has been able to spin this as Universities being in the way of authors getting paid as it is AC that represents that threat.

Is C-13 Needed?: How Canadian Law Already Features Extensive Rules to Combat Cyberbullying

Michael Geist Law RSS Feed - Mon, 2014/01/13 - 04:52
Cyberbullying was in the news last week with Justice Minister Peter MacKay indicating that Bill C-13 could pass by the spring. The reaction to the bill - the government's lawful access/cyberbullying legislation - has generally included criticism over the inclusion of lawful access provisions from Bill C-30 along with assurances that the cyberbullying provisions are important and worthy of support (though experts in the field doubt whether it will stop online taunting). I discuss the dangers associated with Bill C-13 in this interview on TVO's The Agenda.

Comments from Conservative MPs unsurprisingly point to the need to protect children from cyberbullying. For example, Conservative MP John Carmichael told the House of Commons:

Mr. Speaker, I am a parent and a grandparent. I have concerns about my children in this day and age of technology. I have watched my three-year-old grandson navigate through an iPad, and I do not have any idea how he moves through the technology. Clearly, in today's world there is so much access to different types of attacks on our children. Obviously, entertainment is one thing that we want our children to have, but I think we also have to be wise in what we allow them to watch or see.

Clearly, there are elements who take advantage of our children and our grandchildren in this world. We have all heard horrible stories. A member spoke earlier about a resident in his community who committed suicide, with no hope, feeling perhaps that her life had been ruined. This bill brings hope to all Canadians. It brings us an opportunity to put regulation and legislation in place that will protect our children and our grandchildren from those who would take advantage of them. I think it does exactly what it was intended to do when the Minister of Justice introduced it.

Beyond protecting children and grandchildren - something we all agree upon - the Conservatives frequently point to a June 2013 report on cyberbullying from federal and provincial justice ministers as the basis for Bill C-13.

Yet despite the claims that Bill C-13 is needed to address cyberbullying, the reality is that report found that the Criminal Code already addresses most cyberbullying issues. As the report notes:

There is no specific provision in the Criminal Code for cyberbullying, or even bullying more generally. Bullying captures a wide range of behaviour, most of which does not amount to criminal conduct, for example, name calling, teasing, belittling and social exclusion. However, when the bullying behaviour reaches the level of criminal conduct, the Criminal Code contains several provisions that can address this behaviour.  Depending on the nature of the activity involved, a number of Criminal Code offences may apply to instances of bullying or cyberbullying, including:

  • criminal harassment (section 264)
  • uttering threats (section 264.1);
  • intimidation (subsection 423(1)),
  • mischief in relation to data (subsection 430(1.1));
  • unauthorized use of computer (section 342.1);
  • identity fraud (section 403);
  • extortion (section 346);
  • false messages, indecent or harassing telephone calls (section 372);
  • counselling suicide (section 241);
  • defamatory libel (sections 298-301);
  • incitement of hatred (section 319); and,
  • child pornography offences (section 163.1);
The report identifies several additional provisions that may be applicable.  The resulting substantive recommendations are very limited, namely an expansion of the harassment provisions and removing costs in libel cases.

The report also recommends a new provision on the non-consensual distribution of intimate images, however, it acknowledges that this issue extends far beyond cyberbullying and "there is limited data on the extent and the nature of this activity." Moreover, the report notes the Criminal Code can be used in some cases: images of persons under the age of 18 would qualify under the child pornography rules, while provisions on voyeurism, obscene publication, criminal harassment, and defamatory libel may also be used. As David Fraser notes, the failure of high profile cyberbullying cases in Canada lies with police and prosecutorial failure to use the laws that were readily available, not in the absence of laws that can be used to combat cyberbullying.

Supreme Court grants cert in Aereo cases

Recording Industry vs The People - Fri, 2014/01/10 - 23:50

The Supreme Court has granted certiorari in WNET v. Aereo Inc.

The Washington Post reported: Supreme Court to take on high-stakes TV dispute

The Supreme Court agreed Friday to decide a high-stakes dispute between the nation’s broadcast networks and an upstart Web company that is providing live television programming over the Internet.

Both the networks and Barry Diller-backed Aereo asked the justices to settle the legal fight that could radically change the way live television is delivered to American consumers and disrupt an economic model that accounts for billions of dollars in fees for the broadcasters.......Complete article

The Second Circuit opinion to be reviewed was reported by us here

Ray Beckerman, P.C.

The Trouble With Bill C-13: Why the "Cyberbullying Bill" is About Much More than ...

Michael Geist Law RSS Feed - Fri, 2014/01/10 - 03:22
Earlier this week I appeared on TVO's The Agenda with Steve Paikin to discuss Bill C-13.  While Justice Minister Peter MacKay indicated yesterday that he hopes to pass the legislation this spring, the discussion on the show points to the concerns with the bill including how it creates immunity for voluntary disclosure of personal information without court oversight (thereby increasing the likelihood of such disclosures) and establishes a low threshold for warrants involving metadata, while only marginally addressing the legal framework to combat cyberbullying, which is already well developed. The interview is embedded below.


Vulnerabilities of Descriptive Marks

IPBlog (Calgary) - Thu, 2014/01/09 - 12:00
A trade-mark must be distinctive - if it is not, it is at risk of being unregistrable, and if for some reason it is registered, it is vulnerable to attack by a competitor. In Bodum USA, Inc. v. Meyer Housewares Canada Inc. 2013 FCA 240 (appeal from 2012 FC 1450), Bodum USA, Inc. ...

Re: Matt Gurney: Yet another part of the Canadian firearms system that doesn’t work

Russell McOrmond on Disqus - Thu, 2014/01/09 - 09:27

Amusing -- I'm more familiar these days with people using more modern computing appliances (Chromebooks, SmartTV, Android smartphones/tables, BoxeeBoxes, etc) who are constantly sent to websites asking them to download Adobe Flash, Microsoft Silverlight or Internet Explorer, or similar impossible/nonsensical things. It is hard to explain to people who are not confident computer owners that the failure is with the website and not them.

It is one thing to expect computer users to understand the technology that they own, but it is other to require them to also be smarter than all the companies/governments that they try to (but fail) to interact with.

How would you know if there is intention in these failures? The more people excuse failures that could relate to technology literacy, the easier it is for corruption to occur with the help of technology. I don't buy into "we are doomed", "the sky is falling" type of emotional reactions. I think it is far more productive to call people out - whether it is for intentional illiteracy or deliberate corruption.

This is 2014, not 1994. A website that requires a specific brand of a specific browser that only runs on a specific desktop operating system should be shut down. A government that respected owners rights, including the right of technology owners to make their own basic brand choices, would regulate against such dependencies (tied selling under competition law), and not allow any government department to offer any services that way.

I don't care that this specific example happens to be a firearms registry -- the relevant departmental officials should be told to immediately fix it or be transferred (preferably fired, but unions like to protect incompetence in all sectors of the economy).

Re: Matt Gurney: Yet another part of the Canadian firearms system that doesn’t work

Russell McOrmond on Disqus - Thu, 2014/01/09 - 09:04

This is not uniquely a government problem. IT shouldn't be separated out, but integrated into the teams that need the additional technology support.

I saw this failing policy in the private sector before I saw it in government, with much of the push in government coming from private-sector advisers who IMHO have ulterior motives (Don't get me started on CGI -- they've tried to hire me more than once, and I don't want to be associated with what they do to projects).

Re: Matt Gurney: Yet another part of the Canadian firearms system that doesn’t work

Russell McOrmond on Disqus - Thu, 2014/01/09 - 08:59

Reading the comments I find it interesting that some want to make this into a partisan issue. I know that the author of the article has gun control as his primary issue, and the Conservatives have tried to appeal to gun owners (whether the policies are effective is another conversation). Given my particular focus is computer control I think the article can be seen as far more generic. The website problem just happens to also apply to the firearm registry.

It was the current Harper government that passed Bill C-11 which alleged to be about copyright but also included computer control legislation (under the title of "technological measures" within the bill). When the Liberals first proposed related legislation it was vague as to how it would impact computer owners, but the Conservative bill clearly protected non-owner locks on hardware (primary infringement) as well as access controls on content most often abused as a secondary/contributory infringement of technology owners rights http://c11.ca/brief . What the Conservatives passed was far worse for technology owners than what the Liberals had earlier proposed.

Is the Harper government respectful of the ownership rights of multi-purpose technology (whether firearms, computers, automobiles, etc)? Does the Harper government understand these technologies well enough to protect owners?

I'm not certain of the answer to those questions, but strongly believe that policy makers, regardless of political stripes, have a responsibility to understand the technologies they are regulating!

I recognize technology literacy is a serious problem (regardless whether we are talking about firearms or computers), and people have strong opinions based on emotions rather than science (whether computers or firearms). It is still the responsibility of policy makers and advocates to become more literate. It is not an excusable matter of incompetence when people deliberately ignore obvious literacy problems and lobby/legislate/regulate anyway.

European Report Says Canadian Privacy Law Should Be Re-Examined Due to Surveillance Activities

Michael Geist Law RSS Feed - Thu, 2014/01/09 - 03:13
The European Parliament's Committee on Civil Liberties, Justice and Home Affairs has issued a detailed draft report on the U.S. surveillance activities and its implications for European fundamental rights. The report loops Canada into the discussion, noting Canada's participation in the "five-eyes" consortium and expressing concern about the implications for trust in the Canadian legal system. The report states:

whereas according to the information revealed and to the findings of the inquiry conducted by the LIBE Committee, the national security agencies of New Zealand and Canada have been involved on a large scale in mass surveillance of electronic communications and have actively cooperated with the US under the so called ‘Five eyes’ programme, and may have exchanged with each other personal data of EU citizens transferred from the EU;

whereas Commission Decisions 2013/651 and 2/2002 of 20 December 2012 have declared the adequate level of protection ensured by the New Zealand and the Canadian Personal Information Protection and Electronic Documents Act; whereas the aforementioned revelations also seriously affect trust in the legal systems of these countries as regards the continuity of protection afforded to EU citizens; whereas the Commission has not examined this aspect.

As a result of the concerns with Canadian surveillance, the report recommends a re-examination of the adequacy finding of Canadian privacy law:

Calls on the Commission and the Member States to assess without delay whether the adequate level of protection of the New Zealand and of the Canadian Personal Information Protection and Electronic Documents Act, as declared by Commission Decisions 2013/651 and 2/2002 of 20 December 2001, have been affected by the involvement of their national intelligence agencies in the mass surveillance of EU citizens and, if necessary, to take appropriate measures to suspend or reverse the adequacy decisions; expects the Commission to report to the European Parliament on its findings on the above mentioned countries by December 2014 at the latest;

For non-privacy lawyers, the European Union law requires that non-EU countries maintain an "adequate" standard of data protection. Countries that do not meet that standard run the risk of being subject to restrictions on data transfers between themselves and all EU members states. The importance of receiving an adequacy finding was one of the prime motivations behind enacting private sector privacy law. As the Canadian government told the Supreme Court of Canada last year:

Parliament also enacted the PIPEDA, in part, in response to the European Union’s (the EU) 1995 Data Protection Directive (EU Directive). The EU Directive regulates the processing of personal information within EU member states, and requires member states to pass legislation that restricts the transfer of personal information to non-EU countries unless they provide an “adequate level of protection” of personal information, or alternative measures are put in place to protect privacy (such as model contracts). The EU has determined that through the PIPEDA (including its provision for recognizing substantially similar provincial legislation), Canada meets this standard. The conferral of adequacy status on Canada allows for the free flow of data between Canada and EU member states.

Canadian law received the adequacy finding in 2002. The European Parliament report now says the finding should be re-examined in light of the revelations of Canada's active participation in global surveillance activities. Given the Canadian government's emphasis on expanding European trade through the new Canada - EU Trade Agreement, a change in the adequacy status of Canadian privacy law could be enormously damaging. Moreover, given that the European Parliament will ultimately be required to approve CETA, the concerns about the trustworthiness of Canadian law within the EP could lead to opposition to the broader trade deal.

Global Network Initiative sets important precedent for transparency

Google Public Policy BLOG - Wed, 2014/01/08 - 15:51
Posted by: Ross LaJeunesse, Global Head of Free Expression and International Relations, and Lewis Segall, Senior Counsel

Five years ago, when we became founding members of the Global Network Initiative (GNI), we agreed that outside assessors would review how we’re doing against GNI’s Principles on Freedom of Expression and Privacy. GNI brings together diverse stakeholders to address the risks to a free and open Internet, and conducting these assessments is an important part of the organization's mandate.

This morning, GNI released its first ever Company Assessment Report. The organization used independent assessors to look into whether the GNI’s three founding companies -- Google, Yahoo!, and Microsoft -- are upholding GNI’s principles in practice. After reviewing specific cases on how Google is implementing the principles, the board found that we are compliant and working to protect freedom of expression and privacy online.

Even though it can be uncomfortable to open up to outside scrutiny, we believe the assessment is a useful model for companies, NGOs, academics, and others working together to assess how companies respond to government requests related to human rights.

Today’s report also supports the organization’s other primary task, advocacy -- ensuring that governments everywhere protect privacy and free expression online. If you’re interested in learning more about how Google responds to government demands for user information and content removal, check out our Transparency Report.
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