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The Policy Choices That Will Define Tech Law in 2016

Appeared in the Toronto Star on January 4, 2016 as How 2016 Will Shape Canada’s Tech Policy

Technology law and policy continues to command the attention of the public and policy makers. As Canada enters a new year with a new government, 2016 will be all about making tough choices on a wide range of technology law policies, including the following eight issues that are sure to generate headlines.

1.    How will Bill C-51 be revamped?

Bill C-51, the Conservative government’s anti-terrorism bill, emerged as a major political issue last year as many expressed concern over the lack of oversight and the implications for privacy and civil liberties.  The Liberal government has committed to reforms, but has been generally coy about what those changes will be.  New accountability mechanisms will undoubtedly feature prominently in any reform package, but the substantive amendments to the bill remain a mystery.

2.    What to do about lawful access?

The decade-long debate over lawful access, which establishes the rules under which law enforcement can access subscriber information, concluded last year with the passage of Bill C-13.  The Privacy Commissioner of Canada remains critical of the legislation and the Supreme Court of Canada has ruled that subscribers have a reasonable expectation of privacy in that information. With law enforcement seeking new warrants to access subscriber data, the Liberals face tough policy choices in striking the privacy-security balance.

3.    Will privacy breach regulations move ahead?

The Digital Privacy Act, which also became law in 2015, created a framework for mandatory disclosure of privacy breaches, such as those that occurred last year with Ashley Madison. However, those rules only take effect once regulations are in place. The Liberal government will have to quickly decide whether to prioritize the privacy of Canadians by expediting the regulatory process in 2016.

4.    What to do about Canadian broadcasting?

The Canadian Radio-television and Telecommunications Commission (CRTC) spent much of the past year reshaping Canadian broadcasting regulation to grant consumers more choice through pick-and-pay packages. As the changes hit the market in 2016, the government will be faced with the prospect of a broadcaster backlash over falling revenues and disappearing subscribers.

5.    Will Canada ratify the copyright treaty for the blind?

The Marrakesh copyright treaty for the blind and visually impaired ensures greater access to copyrighted works for millions around the world.  The Conservatives introduced a bill last year designed to ratify the treaty just prior to the election call. With that bill now dead, how long will the Liberals wait before moving forward with their own implementing legislation?

6.    Will Canada sign the Trans Pacific Partnership?

While this seems like a foregone conclusion, Canada will have to decide whether to sign the TPP when it comes up for signature in early February. Given the advantages that come with being an original signatory, it seems likely that the government will sign the agreement but leave the decision of ratification until at least 2017.

7.    A fix for the notice and notice copyright system?

The copyright notice-and-notice system took effect in 2015 after several years of delay. The policy tries to strike a fair balance between the privacy rights of Internet subscribers (whose personal information is not publicly disclosed) and the copyright interests of rights holders. However, notice-and-notice has unexpectedly been used to send thousands of settlement demand notices.  Officials acknowledge that this was never the intent of the policy and a fix that establishes rules on the content of notices may be forthcoming.

8.    How will the government tackle its first big telecom fight?

Within hours of the Liberal government taking office, Bell Canada handed it the first telecom policy hot potato, filing a cabinet appeal over a CRTC decision mandating open access rules to grant independent Internet providers access to high speed fibre connections. The decision will force the government to identify its vision of broadband competition since the ruling will go a long way to determining what the competitive marketplace looks like for broadband Internet access across Canada.

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 or online at

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