In the years leading up to Canada’s entry into the Trans Pacific Partnership negotiations, there was considerable speculation about demands imposed by the U.S. For example, I wrote in 2012 about two reported demands: that Canada was stuck with any chapters concluded before entry and that it would not have any veto authority. This meant that if all other countries agreed on a particular provision, Canada would be required to accept it.
Yesterday, Industry Minister James Moore provided the first official confirmation of at least one other condition of admission to the talks: anti-counterfeiting legislation. Bill C-8, the anti-counterfeiting bill that focuses on providing new border measures provisions such as enhanced search and seizure powers for customs agents without court oversight, is really a bill about satisfying U.S. demands for TPP entry. According to Moore:
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The mounting battle between Uber, the popular app-based car service, and the incumbent taxi industry has featured court dates in Toronto, undercover sting operations in Ottawa, and a marketing campaign designed to stoke fear among potential Uber customers. As Uber enters a growing number of Canadian cities, the ensuing regulatory fight is typically pitched as a contest between a popular, disruptive online service and a staid taxi industry intent on keeping new competitors out of the market.
My weekly technology law column (Toronto Star version, homepage version) notes that if the issue was only a question of choosing between a longstanding regulated industry and a disruptive technology, the outcome would not be in doubt. The popularity of a convenient, well-priced alternative, when contrasted with frustration over a regulated market that artificially limits competition to maintain pricing, is unsurprisingly going to generate enormous public support and will not be regulated out of existence.
While the Uber regulatory battles have focused on whether it constitutes a taxi service subject to local rules, last week a new concern attracted attention: privacy. Regardless of whether it is a taxi service or a technological intermediary, it is clear that Uber collects an enormous amount of sensitive, geo-locational information about its users. In addition to payment data, the company accumulates a record of where its customers travel, how long they stay at their destinations, and even where they are located in real-time when using the Uber service.
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The Canadian Press reports that the RCMP has abandoned some Internet-related investigations because it is unable to obtain warrantless access to subscriber information. The article is based on an internal memo expressing concern with the additional work needed to apply for a warrant in order to obtain access to subscriber information. The changes have arisen due to the Supreme Court of Canada’s Spencer decision, which held that there is a reasonable expectation of privacy in subscriber information. As a result, it is believed that most telecom and Internet providers have rightly stopped voluntary disclosures without a warrant (some have still not publicly stated their disclosure practices).
The article notes how easily subscriber information was disclosed prior to Spencer:
Prior to the court decision, the RCMP and border agency estimate, it took about five minutes to complete the less than one page of documentation needed to ask for subscriber information, and the company usually turned it over immediately or within one day. The agencies say that following the Supreme Court ruling about 10 hours are needed to complete the 10-to-20 pages of documentation for a request, and an answer can take up to 30 days.
The troubling aspect of the story is not that some investigations are being curtailed because law enforcement is now following due process and that telecom providers are requiring a warrant before disclosing subscriber information. It is that for millions of requests prior to Spencer, it took nothing more than five minutes to fill out a form with the information voluntarily released without court oversight and without notifying the affected subscriber.
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