I appeared earlier today at Industry Minister Tony Clement's Canada's Digital Economy Conference. I shared the stage with Privacy Commissioner Jennifer Stoddart and Tim Wilson from Visa Canada on a panel titled Toward A Safer, Stronger Online Marketplace. My prepared remarks are posted below:
Canada’s Digital Economy: Toward A Safer, Stronger Online Marketplace
Michael Geist, June 22, 2009
Let me begin by thanking Minister Clement – both for the invitation to speak here today and more importantly for his leadership on this critical issue. We all recognize the importance of the digital environment for commercial, cultural, educational, and communication purposes. Canada was once a proud leader in this arena and I think most would acknowledge that we have failed in recent years to articulate much-needed vision, strategy, and perhaps most importantly – urgency.
Minister Clement opened today’s conference by citing confidence as one of his key concerns. I think he’s identified a crucial concern. Privacy and security are key components in instilling this confidence, but there are other issues. I recently wrote about a digital action plan and I want to tease out several points that arise within the context of building confidence.
1. E-commerce consumer protection
The online marketplace has evolved dramatically in recent years and Canada needs an e-commerce consumer protection framework to match. In this regard, I think Minister Clement should be congratulated for introducing Bill C-27, the Electronic Commerce Protection Act. While often described as anti-spam legislation, it is really much more. It addresses phishing, spyware, and consumer control over their personal computers. It sets the right standard of opt-in consent that may eventually be applied across all consumer marketing.
That’s the good news. The bad news is that some business groups – though not all – the Canadian Marketing Association for example was extremely supportive during hearings last week – have been outspoken in their efforts to water down this legislation. They argue that privacy legislation is good enough or that businesses should be allowed to install software on users’ computers without their consent. These kinds of reforms will not breed confidence. Indeed, the experience with phishing sites or the Sony rootkit case is that it is these instances that undermine confidence. If our goal is to establish a safer, stronger online marketplace, we need strong consumer protection laws that return some level of control to the consumer. It has been more than four years since the National Task Force on Spam issued its unanimous report and there is no need for further delays in implementing its recommendations.
Confidence also comes from greater openness and transparency. After years of closed, “walled garden” approaches, the world is embracing the benefits of openness. The City of Vancouver recently adopted an openness policy that establishes a preference for open standards, open source software, and open government data. The federal government should do the same, promoting the use of cost-effective open source software and the benefits of commercial and civic activity around accessible government data. We are seeing some remarkable open government initiatives around the world. Witness last week’s initiative by the Guardian in the UK, which is crowdsourcing the review of hundreds of thousands of documents detailing MP expenses. Within days, 20,000 people have taken part with about 160,000 pages reviewed. There is no reason that we can’t see similar activity in Canada.
A presumption of openness should extend to other policy areas as well. Open spectrum policies in the forthcoming spectrum auction would spur new innovation and heighten competition by facilitating greater consumer mobility and promote the introduction of new services not tied to a single wireless provider.
The openness principle should also cover access to taxpayer-funded research, often referred to as open access. In recent months, the United States and the European Union have taken strong steps toward making their research openly available, with legislative mandates that require researchers who accept public grants to make their published research results freely available online within a reasonable time period. We have started to move in this same direction but need to make it a priority.
3. Confidence in our networks
Minister Clement opened the conference by acknowledging our slipping rankings when it comes to issues such as broadband and network infrastructure. I believe that there is diminishing confidence in Canada – sinking international rankings and incidents that raise questions about network management practices have left businesses and consumers alike concerned about our wired and wireless infrastructure. Confidence in those networks extends beyond just mere access, however. It involves world-class speeds, fair pricing, transparent marketing, and appropriate network management practices. This is by no means just a consumer issue – businesses big and small similarly depend upon these principles.
As many of you will know, last week the Liberal party joined the NDP in declaring its support for net neutrality. I think this is an exciting development, but this ought not to be a partisan issue. It is a policy issue. While the CRTC will examine network management practices with its own hearing early next month, I believe that confidence in the network must be a core part of our national digital strategy. In the short term, all parties should work together to address these concerns by at least addressing the easy issues such as better disclosures on network management practices, truth in marketing with minimum rather than maximum speeds, no content blocking, the openness principles discussed earlier, appropriate network privacy, and addressing the concerns about undue preferences that were raised during the recent new media hearings.
4. Confidence in Copyright
It will come as little surprise that my fourth issue is confidence in Canadian copyright. A digital strategy must be about more than just the infrastructure – the content on the networks is a key issue for the digital economy and copyright plays an important role in that regard. I’d like to touch on confidence in copyright from two perspectives – both the law and the reform process.
Let me start first with the process, which I believe has severely undermined the confidence of thousands of Canadians. With respect, the process that led to C-61 did little to instill public confidence, with no public consultation and the sense that the process was being driven primarily by a select group of interests. In recent weeks, that sense has recurred with the decision to continue in the non-transparent Anti-Counterfeiting Trade Agreement negotiations and with the admission by the Conference Board of Canada that three of its IP reports were plagiarized, unduly relied on feedback from a funder, relied on too few sources, and lacked sufficient balance. Those are their words, not mine.
We need to restore confidence in the policy making process by putting an end to secret negotiations and an end to the unsupportable rhetoric that seeks to paint Canada as a piracy haven. Instead we need to adopt an inclusive, consultative approach. That means placing these issues within the digital strategy framework and following through with a broad consultation as has been recently reported.
From a substantive perspective, there is need for reform. However, we are not going to increase confidence by adopting rules that encourage locking down content, overriding the flexibilities found in the current law, or that leave Internet subscribers vulnerable to losing their access based on unproven allegations of infringement. We are not going to increase confidence by failing to address the gridlock faced by creators and users.
Instead, we need to provide business confidence with rules that provide sufficient flexibility to innovate. We need rules that give consumers confidence that they won’t lose access to their online purchases whenever an online seller drops support for a particular business line. Rules that assure consumers that it’s ok to use their PVR or to shift music to their iPod. Rules that encourage rather than discourage research into encryption and digital security, distance learning opportunities, access to knowledge and long overdue digitization initiatives. We can achieve this kind of reform and still implement international treaties such as the WIPO Internet treaties.
Finally, a word about leadership. Minister Clement has obviously shown a keen interest in these issues and leadership with today’s event. But we need to build a leadership team – for example, a Canadian Chief Technology Officer and a clear position for digital issues at the cabinet table would also feed confidence. There needs to be a sense of urgency here – there is simply no more time to waste.