Several years ago, the United Kingdom passed the controversial Digital Economy Act, which included provisions for disconnecting Internet users accused of repeat copyright infringement. That bill generated protests, but ultimately passed. The disconnection provisions never took effect, however, as they were the target of legal challenges. Now reports indicate that the copyright enforcement scheme has been shelved altogether as rights holders and Internet service providers have reached agreement on a voluntary system that looks a lot like Canada’s notice-and-notice approach.
The system involves a maximum of four warning letters to a customer per year. There is no disclosure of the subscriber information and no threat of loss of Internet service. Rights holders can take further legal action if they so choose. I wrote about Canada’s notice-and-notice system here (which similarly involves notices, no disclosure of personal information, and no loss of service), discussing its effectiveness and warning against the possibility that the Trans Pacific Partnership could be used to override the “made in Canada” approach.
In the aftermath of the Supreme Court of Canada’s Spencer decision, several leading Canadian ISPs have publicly announced that they have changed their practices on the disclosure of subscriber information (including basic subscriber information such as name and address) to law enforcement. For example, Rogers announced that it will now require a warrant or court order prior to disclosing information to law enforcement except in emergency situations. Telus advised that it has adopted a similar practice and TekSavvy indicated that that has long been its approach. SaskTel says that it will release name, address, and phone number.
Unlike its competitors, Bell has remained largely silent in recent weeks. In media reports, the company says little more than that it follows the law. In fact, the Toronto Star’s Alex Boutilier tweets that the company is now declining to respond to journalist inquiries about the issue. In the past, the company was a clear supporter of disclosing “pre-warrant” information in some circumstances to law enforcement. As detailed in this Canadian Bar Association article:
The OECD released its latest Internet broadband data yesterday, covering the 34 OECD member states. The update emphasized wireless broadband access, comparing subscription rates across the OECD (many other aspects of the OECD data collection, including pricing and speeds, were not updated). Wireless broadband has emerged in recent years as a critical method of Internet connectivity with consumers and businesses relying on mobile broadband, yet the OECD data has Canada ranking poorly for wireless broadband subscriptions when compared to the rest of the developed economy world (coverage from the Wire Report (sub req)). The OECD release comes one week after a CRTC sponsored report found that Canadian wireless pricing is among the most expensive in the G7 in every tier of usage.
Seven countries, including Finland, Australia, Japan, Sweden, Denmark, Korea, and the U.S., have at least one subscription for every inhabitant. In Canada, the number drops to 53.3 subscriptions for every 100 inhabitants. That places Canada 24th out of 34 OECD countries.
Last week, a recorded customer service call with U.S. Internet provider Comcast went viral as the recording featured a Comcast representative spend 20 minutes deflecting a customer’s request to drop its Internet service. While Comcast apologized, the incident clearly struck a chord with many frustrated by customer service representatives whose mandate is seemingly to retain the customer rather than provide actual service.
Yesterday, Toronto web developer Daryl Fritz tweeted this photo of a Rogers injection into his web page:
Canadian Internet and telecom providers have, for many years, disclosed basic subscriber information, including identifiers such as name, address, and IP address, to law enforcement without a warrant. The government has not only supported the practice, but actively encouraged it with legislative proposals designed to grant full civil and criminal immunity for voluntary disclosures of personal information.
Last month, the Supreme Court of Canada struck a blow against warrantless disclosure of subscriber information, ruling that there is a reasonable expectation of privacy in that information and that voluntary disclosures therefore amount to illegal searches.
My weekly technology law column (Toronto Star version, homepage version) notes the decision left little doubt that Internet and telecom providers would need to change their disclosure policies. Last week, Rogers, the country’s largest cable provider, publicly altered its procedures for responding to law enforcement requests by announcing that it will now require a court order or warrant for the disclosure of basic subscriber information to law enforcement in all instances except for life threatening emergencies (warrantless disclosures may still occur where legislation provides the lawful authority to do so). Telus advised that it has adopted a similar approach.