The government has tried to downplay the public concern by focusing on two safeguards. First, it argues that its secret metadata surveillance program only targets foreign communications. Second, it notes that the data captured is metadata rather than content and therefore does not raise significant privacy issues. 

Neither response should provide Canadians concerned for their privacy with much comfort. Indeed, the emphasis on these two issues highlights how Canadian surveillance laws have failed to keep pace with current surveillance technologies.

The suggestion that Canadians are not affected by surveillance targeting foreign communications does not stand up to even mild scrutiny. The same claims are made by other intelligence agencies, with each claiming that they limit surveillance to foreign targets. However, information sharing between intelligence services is common, providing a backdoor mechanism to access information.

The prospect that U.S. surveillance becomes a key source for Canadian agencies, while Canadian surveillance supports U.S. agencies, does not strike anyone as particularly far-fetched. Wayne Easter, a former government minister with responsibility for CSIS, has said that such sharing is common. In other words, relying on the domestic-foreign distinction is necessary for legal compliance, but does not provide much assurance to Canadians that they are not being tracked.



Moreover, given the commingling of data through integrated communications networks and "borderless" Internet services residing on servers around the world, distinguishing between Canadian and foreign data seems like an outdated and increasingly impossible task. In fact, the reported decision to stop the Canadian surveillance program several years ago arose in part due to fears of overbroad surveillance. In the current communications environment, tracking Canadians seems inevitable and makes claims that such domestic surveillance is "inadvertent" increasingly implausible.

Assurances that metadata surveillance is less invasive than tracking the content of telephone calls or Internet usage also 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.


The problem is that surveillance technologies (including the ability to data mine massive amounts of information) have moved far beyond laws that were crafted for a much different world. The geographic or content limitations placed on surveillance activities by organizations such as CSEC may have been effective years ago when such activities were largely confined to specific locations and the computing power needed to mine metadata was not readily available.

That is clearly no longer the case. The law seeks to differentiate surveillance based on geography, but there is often no real difference with today’s technology. Moreover, the value of metadata is sometimes greater than the actual content of telephone conversations. The current law provides few privacy protections and ineffective oversight in the face of intelligence agencies investing billions of dollars in surveillance technologies and telecommunications and Internet companies providing assistance that remains subject to court-imposed gag orders.

The legal framework leaves Canadians with 20th century protections in a world of 21st century surveillance. If we genuinely believe in preserving some privacy in an environment where everyone’s cellphone call is tracked, we must be open to significant legislative reforms and increased oversight that better reflects the realities of modern-day communications surveillance.

• April 2010 - Trade Minister Peter Van Loan says that negotiations could be concluded by the end of 2011
  
• January 2011 - Van Loan says negotiations could be completed by the end of 2011
• July 2011 - Disagreement on public services. Sources say no agreement in 2011.
  
• September 2011 - Trade Minister Ed Fast says negotiations are in the home stretch with only four or five major issues left
• October 2011 - Fast says negotiations are "well advanced"
• October 2011 - reports indicate negotiations will wrap up in early 2012
• December 2011 - Prime Minister Harper says "all the signs are that we’re going to be able to conclude next year."
• January 2012 - European officials say relatively few issues left and expect a deal by the summer
  
• February 2012 - Fast says "we are on track to conclude negotiations in 2012"
• April 2012 - Media reports say agreement being held up by disagreement over rules of origin
• April 2012 - Danish Trade Minister says CETA is 75 percent completed
• June 2012 - European officials say talks expected to end this year despite delays
  
• July 2012 - Lead Canadian CETA negotiation lawyer quits
• July 2012 - Fast says still aiming to conclude agreement in 2012
• August 2012 - Harper and German Chancellor Angela Merkel meet to discuss CETA. Intellectual property, public procurement, and services cited as key stumbling blocks
• October 2012 - Fast says agreement is possible this year. By the end of the month, says year-end is a goal, not a target.
• October 2012 - EU Trade Commission Karel de Gucht says a number of big issues still remain. Points to intellectual property, government procurement, foreign investment, agriculture, and services.
• November 2012 - Media reports say Canada willing to cave on intellectual property to clinch a deal.
• November 2012 - Canada - EU make final push in negotiations
• December 2012 - Reports say negotiations in the home stretch, deal possible by January
• January 2013 - German Ambassador to Canada says deal is possible next month
• February 2013 - de Gucht comes to Ottawa but officials dismiss hopes of finalizing deal. Media reports that framework deal is on "Harper's desk"
• February 2013 - Canada said ready to compromise on dairy restrictions, but divide remains on beef exports, intellectual property, and auto shipments. EU report also says disagreements remain on public procurement and pork exports.  By the end of the month, de Gucht says Canada must improve its offer.
• March 2013 - Trade Minister Ed Fast says momentum building for a CETA agreement, claiming the talks are "into the end game where there is only a small number of issues left to be addressed". Canadian reports say financial services still in dispute.  EU officials urge Canada to conclude agreement by the summer.
• April 2013 - Minister of State for Finance Ted Menzies delivers a talk supporting CETA but says there is no deadline for completion of the agreement.  Dutch minister says deal pushed back to the summer. By the end of the month, officials say agreement could be announced in a few weeks.
• May 2013 - Reports say Canada close to finalizing agreement. Other reports say Harper wants deal by June 21st. Yet further reports say agriculture the sole remaining issue (Canada-EU trade deal nears; agriculture is final sticking point), though others say human rights is a concern. By the end of the month, Canada is said to be seeking "an agreement in principle."
• June 2013 - Canada said to be linking all issues: agriculture and market access, cars, rules of origin, government procurement, and investment protection.
• June 4, 2013 - Canada expected to announce trade agreement next week.
• June 7, 2013 - Canada does not expect to sign agreement during Harper visit in Europe.

Will Canada and the EU ultimately strike a deal? Maybe today or tomorrow.  But back in March I came around to Paul Wells' opinion that a deal may not happen. A compromise is still possible, but both sides still have reasons to hold back. Canada's participation in the Trans Pacific Partnership may make it reluctant to cave on issues that would be useful bargaining chips in those talks, while Europe's talks with the U.S. mean that anything Canada gets, the U.S. gets more so conceding on key issues to Canada comes at a bigger cost later.  Given the limited importance of the deal - the Canadian market is just too small to make a major difference for Europe and a European Commission commissioned study of the agreement concluded that there were many areas that offer only limited Canadian gains - it may remain in limbo for some time.

One other requirement associated with the tabling of the treaties in the House of Commons is the inclusion of an explanatory memorandum, which I've obtained and posted here and here. Canada plans to make three reservations to the WPPT:

First, pursuant to Article 3(3) of the Treaty and to reflect section 18 of the Copyright Act, Canada intends to declare that it will not apply the criterion of fixation with regards to the exclusive rights for producers of phonograms. A similar declaration was made pursuant to the Rome Convention.

Second, pursuant to Article 3(3) of the Treaty and to reflect section 20 of the Copyright Act, Canada intends to declare that it will not apply the criterion of publication with regards to right to remuneration for broadcasting and communications to the public. A similar declaration was made pursuant to the Rome Convention.

Third, pursuant to Article 15(3), Canada intends to declare that the right to equitable remuneration provided for at section 19 of the Copyright Act does not apply to any retransmission.

1. How much U.S. collected data is shared with Canadian agencies?  Liberal MP Wayne Easter, who was a cabinet minister with responsibility for CSIS in 2002-03, told the Toronto Star that such sharing was common, providing a back-door way to access information.
2. Was the metadata surveillance program halted for several years as the Globe reported or was it always operational? The Toronto Star reported that Wesley Wark believes the program was never stopped. The CSEC 2010-11 Annual Report suggests that some activities were halted.
3. Who actually knows the specifics on the metadata program?  The Globe reports today that Senator Hugh Segal, the chair of the parliamentary anti-terrorism committee, was unaware of the details of the program.
4. What level of cooperation exists with Canadian telecom companies? They aren't talking, prevented from doing so by gag orders that keep their participation largely secret.
5. The CSEC 2006-07 annual report indicated that there was a review of CSEC use of metadata underway.  What happened to that review?
6. How extensive is the CSEC activities on metadata? The organization is currently recruiting data mining specialists and data mining is a key research focus for its Tutte Institute for Mathematics and Computing. In fact, Bill Robinson pointed out the CSEC's emphasis on data mining as far back as 2007.
7. Does the CSEC even believe that metadata surveillance constitutes an intercept?  Robinson notes that in 2007, then CSE Chief John Adams seemed to argue that it would not. This is particularly relevant given that the law requires permission for surveillance of private communications. As Craig Forcese notes, if the scope of metadata is limited, no permission would be needed.
8. Does the CSEC believe that there is a reasonable expectation of privacy for metadata?  The government tried to downplay the privacy significance of IP addresses during the fight over lawful access (Bill C-30). Would it try to argue that the metadata does not enjoy privacy protections?  Forcese raises the Charter of Rights issues that hang in the balance.
9. What does Privacy Commissioner of Canada Jennifer Stoddart know? What is she prepared to do as part of a promised investigation? Will the office use its audit power to also focus on the major Canadian telecom companies?
10. How have Canadian courts addressed these issues? Reported cases are heavily redacted.

So far, there are many questions but few answers.

First, it establishes minimum standards for copyright limitations and exceptions for the visually impaired. Many developed countries (including Canada) already have some exceptions, yet standards vary widely with some rules now too outdated to take full advantage of new technologies. Moreover, exceptions are frequently missing entirely in developing countries.

The treaty would address the exception problem by establishing minimum requirements for all countries. These exceptions include the right to reproduce or distribute copyrighted works in accessible formats for the visually impaired. It also includes the right to make changes to a work to ensure that it is accessible.

Second, the treaty would facilitate the export of accessible works. Most countries do not permit the export of accessible works on copyright grounds, leading to wasted expense to make the works accessible in multiple countries. The end result is that the visually impaired in each country have access to only a small sliver of the total number of works that have been made accessible worldwide.

Given the narrow goals of promoting greater access for the visually impaired, the treaty should seemingly have been relatively uncontroversial. The early stages of the negotiations, which were based on a World Blind Union proposal, centred on issues such as the scope of the treaty (opponents successfully excluded the hearing impaired) and whether the proposal should be a treaty or a non-binding declaration.

The negotiations led to many compromises, but by last year, the initiative appeared headed toward a binding treaty that would make a significant difference in the lives of millions of people.

Over the past few months, however, lobby groups have pressured the U.S. and European governments to water down the treaty to the point that groups representing the blind fear it may do more harm than good.  

For example, the Motion Picture Association of America has been pushing for additional limitations on the minimum exception requirements that would complicate the rules to the point of rendering them virtually unusable. Moreover, several countries are also promoting a "commercial availability" requirement that even non-profit groups say would constrain their ability to make accessible works available to the visually impaired.

The treaty has also lost a provision that would have allowed countries to use the law to address limitations on access buried within the fine print of publisher contracts.  That provision has now been removed, opening the door to contracts that effectively trump the rights established in the treaty.

In fact, the U.S. has also lobbied to undermine a provision on digital locks that would have allowed the visually impaired to circumvent technological restrictions in limited circumstances. Canada included such an exception in its most recent copyright reforms, but the U.S. has promoted language that is at-odds with current Canadian law.

The Treaty for the Visually Impaired marks a long-overdue effort to ensure that everyone benefits from emerging technologies that open the door to greater access of digitized works. The Canadian government has been largely silent on the treaty, but has a chance later this month to take a strong stand in favour of the rights of the visually impaired.

The government was emphatic that its metadata surveillance program does not target Canadians ("we don't target Canadians, okay."). Yet there are at least two holes in the response. First, the same claims are made by other intelligence agencies, with each claiming that they limit surveillance to foreign targets (this was a key point in a debate I participated in on CBC's Power and Politics). However, information sharing between intelligence services is common, particularly given the common communications network shared by Canada and the U.S.  The prospect that U.S. surveillance becomes a key source for Canadian agencies, while Canadian surveillance supports U.S. agencies does not strike anyone as particularly far-fetched. In fact, the ATI documents note that the ministerial directive "recognizes CSEC's role as a foreign signal intelligence agency, and maintains long-standing alliance with Five-Eyes partners." In other words, relying on the domestic-foreign distinction is necessary for legal compliance, but does not provide much assurance to Canadians that they are not being tracked.

Second, given the commingling of data - integrated communications networks, cloud-computing services, and "borderless" Internet services residing on servers around the world - distinguishing between Canadian and foreign data seems like an outdated and increasingly impossible task. Indeed, the decision to stop the Canadian surveillance program several years ago arose in part due to fears of overbroad surveillance. In the current communications environment, tracking Canadians seems inevitable and makes claims that such domestic surveillance is "inadvertent" increasingly implausible.

The government also relies on claims that the surveillance program only targets metadata (including geo-location, call duration, call participants, IP address), not content, with the implication being that such information does not raise serious privacy concerns. Yet there are many studies that suggest otherwise. Ron Deibert highlights an MIT study that examined months of anonymized cellphone data and found that only four data points were needed to identify a specific person 95 percent of the time. Susan Landau points out that metadata can reveal locational information, medical information, or important business information. Jay Stanley and Ben Wizner identify studies that have found that sexual identify can be guessed based on Facebook metadata. Best of all is a Kieran Healy post titled Using Metadata to Find Paul Revere that places the spotlight on the how connections revealed through metadata can be enormously revealing.  Of course, none of this should come as a surprise since intelligence agencies would not be gathering metadata on every cellphone call if the information was not valuable.

The problem is that surveillance technologies (including the ability to data mine massive amounts of information) have moved far beyond laws that were crafted for a much different world. The geographic or content limitations placed on surveillance activities by organizations such as CSEC may have been effective years ago when such activities were largely confined to specific locations and the computing power needed to mine metadata was not readily available. That is clearly no longer the case with geography often a distinction without a difference and the value of metadata sometimes greater than the actual content of telephone conversations. If we genuinely believe in preserving some privacy in an environment where everyone cellphone call is tracked, we must be open to significant legislative reforms and increased oversight that better reflects the realities of modern-day communications surveillance.

The second revelation involved a program called PRISM, which apparently allows intelligence services preferential access to content and communications activities from companies such as Google, Facebook, Microsoft, Yahoo, and Apple (notably Twitter is not included in the list and the NY Times reports that they have declined to make surveillance easier for the government). The special access can be used obtain audio and video chats, photographs, e-mails, documents, and connection logs. Google has denied joining any program that provides direct access to its servers (as has Facebook), but the NY Times maintains there is active cooperation from these companies. Jennifer Granick notes that the legal authority for such a program likely comes from the Foreign Intelligence Surveillance Act (FISA) and the FISA Amendments Act (FAA). While there have been efforts to claim that this initiative only targets non-U.S. communication, the law permits monitoring provided only one participant is outside the U.S.

The two surveillance programs have sparked widespread outrage, but as Bruce Schneier points out, these programs are just a fraction of the surveillance programs currently deployed by U.S. agencies. Moreover, the U.S. Congress seems unlikely to curtail the programs (the NSA is building a $2 billion data storage centre in Utah to better meet its needs).

These surveillance revelations obviously raise huge issues in the United States, but they should similarly elicit concern in Canada (Ron Deibert shares that view here, Privacy Commissioner Jennifer Stoddart is said to be on alert). As Ivor Tossel states, "Canadians can in no way pretend to be above this." Indeed, during some of the private discussions on lawful access, I was struck by the differing priorities of the various law enforcement and security branches. Local police forces were anxious for mandatory warrantless disclosure of subscriber data, but intelligence and security services seemed far less interested in those legislative powers, focusing instead on surveillance technologies. In hindsight, the reason seems obvious - they may already have access to the subscriber information without the need for lawful access legislation.

Canadian authorities wield many of the same powers used to justify the Verizon phone call meta-data surveillance program. For example, CSIS has some of the same powers as those found in the USA Patriot Act, including Section 215 applications. As Milana Homsi and I argued in a 2005 article:

Canada has similar disclosure provisions as those found in the USA Patriot Act. For example, s. 21 of the Canadian Security Intelligence Act provides for a warrant that permits almost any type of communication interception, surveillance or disclosure of records for purpose of national security. To obtain such a warrant, the Director of the CSIS or a designate of the Solicitor General is required to file an application with a Federal Court judge. The application must contain an affidavit stating "the facts relied on to justify the belief, on reasonable grounds, that a warrant... is required". The application must also outline why other investigative techniques are inappropriate. The warrant will typically last 60 days and is renewable on application. Section 21 orders could presumably also be applied to U.S. companies operating in Canada.

The section 21 warrant is arguably similar to a section 215 application made to the FISA Court. Both do not require probable cause and both can be used to obtain any type of records or any other tangible thing. Moreover, the target of both warrants need not be the target of the national security investigation.

Not only can CSIS rely on these provisions to obtain secret warrants compelling disclosure, but there is considerable information sharing that takes place between government agencies without the consent of the person to whom the information relates. In its 2011 annual report, CSIS reported on hundreds of information sharing arrangements with foreign agencies:

In 2010-2011, CSIS implemented 11 new foreign arrangements and as of March 31, 2011, had 289 arrangements with foreign agencies or international organizations in 151 countries. Of those arrangements, 41 are currently defined as dormant, meaning there have been no information exchanges for a period of one year or longer. During that same period, six existing foreign arrangements were either enhanced or altered by the Service. Additionally, eight arrangements were categorized as having restricted contact due to concerns over the reliability of the foreign agencies in question. Exchanging information with foreign agencies remains a key component in CSIS's ability to effectively carry out its mandate.

Information sharing is by no means limited to CSIS. As the Privacy Commissioner of Canada reported in 2004:

The federal Privacy Act allows personal information to be transferred outside Canada, even without the consent of the individual to whom the information relates. For example, the Act allows personal information under the control of a government institution (for example, information collected to issue passports) to be disclosed for specific purposes under an agreement or arrangement between the Government of Canada and the government of a foreign state. These purposes include administering or enforcing any law or carrying out a lawful investigation.

One such “agreement” is the Mutual Legal Assistance Treaty (MLAT) between Canada and the United States (Canada has signed similar treaties with 33 countries, including the United Kingdom, Australia and France, and two multilateral treaties also contain mutual legal assistance provisions). The Canada-US treaty came into force in 1990 and is an important tool for both governments to obtain evidence located in the territory of the other. US authorities might, for example, want information held by provincial, territorial or federal governments, by individuals in Canada, or by companies in Canada, in relation to a broad range of offences. They can rely on the treaty to obtain this information. 

Much like the Verizon phone call meta-data powers, there are reasons to believe that Canadian intelligence authorities wield many of the same powers as those used to justify the PRISM program. The Communications Security Establishment Canada has the power to assist CSIS, the RCMP and other agencies with their domestic monitoring operations, aided by several super-computers. Moreover, the Globe notes that virtually all CSEC activities remain secret, though its mandate is believed to cover similar terrain as the NSA with powers to monitor foreign communications or any communication that involves at least one foreign participant. That is consistent with its statutory mandate found in the National Defence Act:

(a) to acquire and use information from the global information infrastructure for the purpose of providing foreign intelligence, in accordance with Government of Canada intelligence priorities;
(b) to provide advice, guidance and services to help ensure the protection of electronic information and of information infrastructures of importance to the Government of Canada; and
(c) to provide technical and operational assistance to federal law enforcement and security agencies in the performance of their lawful duties.

Activities carried out under (a) and (b):

(a) shall not be directed at Canadians or any person in Canada; and
(b) shall be subject to measures to protect the privacy of Canadians in the use and retention of intercepted information.

The CSEC annual report explains its monitoring practices, including the potential for interception of Canadian communications. The Canadian provisions sound awfully similar to the powers in the U.S.  Given the lack of transparency, it certainly seems possible that there are similar activities taking place here. In fact, its response to the PRISM story sounds strikingly similar to responses from U.S. authorities, as the CSEC refuses to comment on specific operations and merely confirms that it "operates within all Canadian laws."

Moreover, in recent years, Canada and the U.S. have openly worked to integrate their security efforts. The U.S. - Canada Beyond the Border Action Plan seeks to improve information sharing between security agencies. A December 2012 update specifically points to work in this area.

Does this mean Canadian authorities are engaged in similar forms of surveillance? That phone companies such as Bell and Telus are subject to warrants similar to those faced by Verizon? That Internet companies co-operate with Canadian authorities? That Canadian and U.S. authorities share information obtained through programs such as the Verizon meta-data program or PRISM? That Canadians are targeted by the U.S. programs?

The law would suggest that all of these things are entirely possible. Given the integrated communications networks and the increased information sharing, it seems very likely. Yet since virtually everything remain shrouded in secrecy, Canadians don't know for sure. As the calls for greater oversight ring out in the U.S., it is time for Canadians to consider the privacy and surveillance risks associated with cloud-based services and to demand answers and accountability from Canada's politicians and security agencies.

Appearance before the House of Commons Standing Committee on International Trade, June 3, 2013

Good afternoon.  My name is Michael Geist.  I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law. I am also a syndicated weekly columnist on law and technology issues for the Toronto Star and the Ottawa Citizen. I have edited several books on Canadian copyright and appeared many times before committees on copyright and trade policy.  I appear before this committee today in a personal capacity representing only my own views.

I greatly appreciate the invitation as I have very serious concerns with Canada's participation in the TPP.  I should start by noting that I am not anti-free trade.  I support the government in its efforts to explore opportunities to expand markets for Canadian businesses. That said, the TPP raises some concerns. I'd like to focus on TPP substance, particularly the copyright provisions in the draft agreement, as well as process issues.
 
Substance

Let me start with substantive concerns and, given the limited amount of time, I will focus primarily on the copyright provisions, though copyright is only part of broader intellectual property concerns. You heard last week from Scott Sinclair on some of the patent issues and if you are interested, I would be happy to discuss the implications of the TPP for the governance of the domain name system in Canada.

As members of the committee know, Canada recently completed a long, difficult copyright reform process.  Over a decade of debate ultimately resulted in Bill C-11. Virtually all stakeholders would say that that bill, which received royal assent last June, was imperfect. Yet it did reflect a genuine attempt at compromise with many made-in-Canada provisions that are often cited as progressive, effective, forward-looking digital copyright rules.

My single biggest concern is that the TPP will undermine the Canadian compromise on copyright and require radical changes to our national copyright law. 

I should preface my analysis by noting that last year DFAIT conducted a public consultation on Canada's potential participation in the TPP in which copyright was the top issue cited by individual respondents. No public report summarizing the responses was ever published, yet, according to documents I obtained under the Access to Information Act, the government was overwhelmed with negative comments urging officials to resist entry into the TPP and the expected pressures for significant intellectual property reforms as part of the deal.

In addition to tens of thousands of form letters and emails criticizing the TPP, the government received hundreds of individual handcrafted responses that unanimously criticized the proposed agreement. In fact, a review of more than 400 individual submissions did not identify a single instance of support for the agreement. Rather, these submissions focused specifically on copyright concerns.

Based on a leak of the draft IP chapter, let me provide four examples that lie at the heart of the public concern:

First, Canadian law now features a notice-and-notice approach on Internet provider liability.  This approach establishes the obligations for Internet providers and intermediaries when there are claims of copyright infringement and grants copyright holders powers to raise allegations of infringement with the sites and their subscribers. Moreover, it protects the privacy of subscribers and does not result in takedowns of content based on mere allegations. During the Bill C-11 debates, Canadian Heritage Minister James Moore repeatedly pointed to notice-and-notice as an example of a positive Canadian-specific approach. Yet according to leaked documents, the TPP would require Canada to drop its approach in favour of a draconian takedown system that could stifle free speech and result in the removal of content without the need for any proof of infringement.

Second, the term of protection for Canadian copyright is presently life of the author plus an additional 50 years after their death.  This term meets the international requirement as established in the Berne Convention.  The TPP would require Canada to add an additional 20 years to the copyright term.  The extension in the term of copyright would mean no new works would enter the public domain in Canada until at least 2034 (assuming an agreement takes effect in 2014). 


Many important authors would be immediately affected since their works are scheduled to enter the public domain in the 2014 - 2034 period. These include Canadians such as Marshall McLuhan, Gabrielle Roy, Donald Creighton, and Glenn Gould as well as non-Canadians such as Robert Frost, CS Lewis, TS Eliot, John Steinbeck, JRR Tolkein, and Ayn Rand. Given the potential to make those works more readily accessible to new generations once they enter the public domain, extending the term of copyright as potentially required by the TPP would have a dramatic negative effect on access to Canadian literature and history.

Third, Canadian copyright law now includes an important distinction with respect to statutory damages as it features a cap of $5000 for all non-commercial infringements.  While the reforms have been unsuccessful in stopping thousands of potential lawsuits against individuals, they do ensure that Canadians won't face the threat of hundreds of thousands or even millions in liability for non-commercial infringement. The government consistently argued that the reform was the right thing to do. Yet the TPP would require Canada to drop the non-commercial cap and restore statutory damages that could climb into the millions of dollars for individual Canadians.

Fourth, the digital lock rules were the most contentious aspect of Bill C-11.  The provisions were widely criticized, but the silver lining in an approach that went far beyond international requirements was that the government kept the door open in the legislation to future reforms and exceptions to the rules. Yet the TPP would close that door, increasing the penalties for circumvention and restricting the ability for Canada to create new digital lock exceptions.

The copyright provisions in the TPP threaten a Canadian compromise that took a decade to achieve and that was strongly defended by the current Conservative government.  To undo that compromise would constitute an enormous setback for Canadian sovereignty and for our long-term digital and cultural policy.

Process

I would be remiss if I did not raise process concerns involving the secrecy associated with the TPP and the creation of a two-tier approach that involves special access to TPP information for some insiders.

The TPP negotiations have been ongoing for years, yet there has still been no official release of draft text.  To conduct a hearing on the benefits of the TPP without public access to the draft text forces participants to rely on leaked information that has not been officially confirmed. Canada should be demanding that a draft text be made available for all to see.

Instead, it is deeply troubling that DFAIT has established a secret insider group with some companies and industry associations granted access to consultations as well as opportunities to learn more about the agreement and Canada's negotiating position.

I realize that Minister Fast denied the existence of such a group when he appeared before you last month.  However, documents I obtained under the Access to Information Act indicate that the first secret industry consultation occurred weeks before Canada was formally included in the TPP negotiations in a November 2012 consultation with telecommunications providers. All participants were required to sign non-disclosure agreements.  

Soon after, the circle of insiders expanded with the formation of a TPP Consultation Group. Representatives from groups and companies such as Bombardier, the Canadian Manufactures and Exporters, Canadian Agri-Food Trade Alliance, and the Canadian Steel Producers Association all signed a confidentiality and non-disclosure agreement that granted access to "certain sensitive information of the Department concerning or related to the TPP negotiations."

I have copies of the signed NDAs here that make specific reference to the TPP Consultation Group.

The creation of a secret TPP insider group suggests an attempt to shy away from public consultation and scrutiny of an agreement that could have a transformative effect on dozens of sectors at a time when we should be increasing efforts to gain public confidence in the talks by adopting a more transparent and accountable approach. I believe the TPP's highly secretive and non-transparent approach runs counter to Canadian values of openness and accountability. We should be actively encouraging participants to increase TPP transparency and should lead by example by ceasing the two-tier insider approach to trade agreement information. 

This shift has been underway for some time. As early as 2007, Prime Minister Harper shuffled then-Industry Minister Maxime Bernier (who most believed was opposed to government intervention in the form of a set-aside or other measures) with Jim Prentice. Within months, Prentice unveiled the government's policy with the headline "Government Opts for More Competition in the Wireless Sector." In case there was any lingering doubt about where the government stood, the release noted:

Recent studies comparing international pricing of wireless services show Canadian consumers and businesses pay more for many of these services than people in other countries. These services are key to strengthening the competitiveness of Canadian business.

In the years that followed, the government continued to support measures for greater competition - backing the Wind Mobile entry despite concerns about foreign financing ("The policy of our government is to encourage choice and competition in wireless and Internet markets. Ours was the government that set aside spectrum during the 2008 auction to allow new entrants to compete. New entrants mean more competition, lower prices and better quality services for Canadians.") and later relaxing foreign ownership restrictions for the smaller players in the telecommunications market ("the goals remain steadfastly the same: increased innovation, increased competition, better service and better prices for consumers").  The icing on the cake came in 2011, with the public fight over usage based billing (not a wireless issue, but related to Internet access pricing). With over a half a million signing on an online petition calling for a policy change, the government recognized that telecommunications had emerged as a major consumer issue that could be a ballot box winner.

Within weeks of Jean-Pierre Blais being named CRTC Chair in 2012, it became apparent that his mandate was to adopt a consumer-focused perspective at the Commission. The incumbents didn't quite believe it, but killing the Bell-Astral deal (at least temporarily) ensured that everyone took notice. Yet some may have still bet that Bell-Astral was a broadcast issue and that telecom would not be affected in the same manner.

That turned out to be a bad wager. The CRTC's wireless code extends far beyond what the industry thought it would get, with the Commission effectively bringing three-year contracts to an end. The CWTA paid a heavy price on the issue as the new entrants walked away from the association in part over the association's support for three-year contracts (which are about customer lock-in, not a relatively modest difference in the amortization of device subsidies). Further, Paradis made it clear in March that he was uncomfortable with incumbents acquiring spectrum that had been set-aside, but Telus still (wrongly) figured the government would not stand in the way of a Mobilicity acquisition.

Beyond these headline-grabbing events, two other developments highlight just how badly the CWTA and the incumbent providers read the situation. On Sunday, the CWTA leaked a study to the media that purported to find that Canadians actually pay too little for wireless services. Relying on consumer surplus metrics, the study claims that Canadians would actually be willing to pay far more for wireless services given how much they love their smartphones. It is hard to think of any study more out-of-touch with prevailing public and government sentiment than industry claims that Canadian wireless services are a bargain.

Meanwhile, within hours of the CRTC code and the government's decision on Telus - Mobilicity, the Conservative party was actively fundraising on the developments, positioning itself as the consumer wireless defender.  The party launched a Standing Up for Wireless Customers campaign, stating "we're putting Canadian consumers first and making sure there is more competition in the market."

The campaign is reminiscent of the campaign against the iPod tax, with the government betting that consumers will remember who took their side on a "pocketbook issue." The industry may argue that the government and public have it all wrong, but government and public positions on the issue have solidified. The debate is no longer about whether the Canadian market is competitive. It is now about how to fix an uncompetitive market.