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Senate Chamber HDR by Intiaz Rahim (CC BY-NC-ND 2.0) https://flic.kr/p/5LhGZg

Choosing Between Privacy and Cyberbullying: My Appearance on Bill C-13 Before the Senate Legal and Constitutional Affairs Committee

Yesterday I appeared before the Senate Committee on Legal and Constitutional Affairs, which is studying Bill C-13, the lawful access/cyberbullying bill. The full transcript of the spirited discussion is not yet available, but my opening statement is posted below.

Appearance before the Senate Standing Committee on Legal and Constitutional Affairs, November 19, 2014

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 appear today in a personal capacity representing only my own views.

Given the limited time,  I’m going to confine my remarks to three privacy-related issues: immunity for voluntary disclosure, the low threshold for transmission data warrants, and the absence of reporting and disclosure requirements.

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November 20, 2014 1 comment News
Increased OPP Enforcement by Ryan Steele (CC BY-SA 2.0) https://flic.kr/p/dk2xn

Why Does the Ontario Provincial Police Still Not Know What is in the Lawful Access Bill?

Earlier this week, I posted on Ontario Provincial Police comments at the Standing Senate Committee on Legal and Constitutional Affairs hearing on Bill C-13 that were sharply critical of online anonymity.  The same hearing was notable for additional comments from the OPP on the lawful access bill.  The comments, which came in the opening statement, suggest that one of Canada’s largest police forces is simply unaware of the contents of the proposed legislation.

Scott Naylor of the OPP’s opening remarks included:

There is no question that some of the legislation involving technology and communication in Canada is out of date.  Under the current legislation, police can only access the very basic subscriber information – i.e., name, address, telephone number – on a totally ad hoc basis, by production order from service providers.  This means that there is an inconsistent response, which impedes investigations and, in extreme cases, may prolong victimization. Under the proposed legislation, Internet service providers would be compelled to provide this information in a timely fashion and on a consistent basis.  Access to this information would be strictly controlled and limited to law enforcement officials, who would be fully trained in these procedures and subject to auditing and report oversight.  I will repeat – auditing and report oversight.

Here is the problem: Naylor appears to think that Bill C-13 has not changed from Vic Toews’ Bill C-30. Under the lawful access bill, ISPs would not be compelled to disclose subscriber information. Indeed, the mandatory disclosure of subscriber information without a warrant was removed from the bill altogether.  The bill does include incentives for voluntary disclosure, but there are no mandatory disclosure requirements. If the OPP think the bill guarantees consistent disclosure of subscriber information, it is wrong. In fact, the Supreme Court’s Spencer decision means that subscriber information now only comes (except in emergency circumstances) through a court order.

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November 13, 2014 3 comments News
Some SIM cards by mroach (CC BY-SA 2.0) https://flic.kr/p/5jBZEx

Competition Matters: New Study Supports Government Policy Focused on Fourth Wireless Player

Last year’s explosive battle over the potential entry of wireless giant Verizon into the Canadian market may be a distant memory, but the debate over the state of wireless competition remains very much alive. Industry Minister James Moore has pointed to a modest decline in consumer pricing and complaints as evidence that government policies aimed at fostering a more competitive market are working.

The big three wireless carriers remain adamant that the Canadian market is competitive and that while pricing may be high relative to some other countries, that is a function of the quality of their networks. In other words, you get what you pay for.

There is seemingly no major international entrant on the horizon, but the Canadian Radio-television and Telecommunications Commission is currently grappling with an assortment of policy measures aimed at improving the competitiveness of new entrants and facilitating the development of a more robust market for virtual operators who could enhance consumer choice. Moreover, the government is planning another spectrum auction early next year that would benefit new entrants.

My weekly technology law column (Toronto Star version, homepage version) notes that at the heart of the debate is whether creating a fourth national carrier is a legitimate policy goal or a mirage that will do little to decrease pricing or create market innovation. The major carriers argue that the Canadian market is too small to support a fourth national carrier and that competitiveness is not directly correlated to the number of national operators.

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November 12, 2014 1 comment Columns
Protest at the White House for Net Neutrality by Joseph Gruber (CC BY-ND 2.0) https://flic.kr/p/p294TD

Net Neutrality and Netflix Taxes: The Tension Between Government and Regulatory Agencies on Digital Policy

U.S. President Barack Obama yesterday came out strongly in favour of net neutrality, urging the U.S. Federal Communications Commission to uphold core net neutrality principles. Obama’s comments was unsurprisingly welcomed by net neutrality activists throughout the U.S., though some caution that the ultimate decision still lies with the regulatory agency. Obama focused on greater transparency along with rules to ensure no blocking, throttling, and paid prioritization. I wrote earlier this year on how Canada passed net neutrality regulations (termed Internet traffic management practices) in 2009, which address many of the issues raised by Obama and has not resulted in the horrors suggested by critics of net neutrality policy.

Obama’s decision to wade into the net neutrality debate highlights how politicians can no longer simply avoid telecom, broadcast, and Internet issues by claiming that the matter is solely for regulators to determine. Policy issues such as net neutrality and Internet regulation have profound importance for millions and we should not be content to leave the issue exclusively to unelected regulators (no matter transparent their processes).

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November 11, 2014 2 comments News
Anonymity; and the Internet. by Stian Eikeland (CC BY-NC-SA 2.0) https://flic.kr/p/6CCWXH

Ontario Provincial Police Recommend Ending Anonymity on the Internet

The Standing Senate Committee on Legal and Constitutional Affairs began its hearings on Bill C-13, the lawful access/cyberbullying bill last week with an appearance from several law enforcement representatives. The Ontario Provincial Police was part of the law enforcement panel and was asked by Senator Tom McInnis, a Conservative Senator from Nova Scotia, about what other laws are needed to address cyberbullying. Scott Naylor of the OPP responded (official transcript not yet posted online):

If the bag was open and I could do anything, the biggest problem that I see in the world of child sexual exploitation is anonymity on the Internet. When we get our driver’s licence we’re required to get our picture taken for identification.  When you get a mortgage you have to sign and provide identification.  When you sign up for the Internet, there is absolutely no requirement for any kind of non-anonymity qualifier.  There are a lot of people who are hiding behind the Internet to do all kinds of crime, including cybercrime, fraud, sexual exploitation and things along those lines.

The Internet is moving so quickly that law enforcement cannot keep up.  If there were one thing that I would ask for discussion on is that there has to be some mechanism of accountability for you to sign on to an Internet account that makes it like a digital fingerprint that identifies it to you sitting behind the computer or something at that time.  There are mechanisms to do it, but the Internet is so big and so vast at this point, and it’s worldwide, I’m not sure how that could happen, but that would certainly assist everybody.  In that way I can make a digital qualification that that’s the person that I’m talking to.  If I had one choice, that’s what I would ask for.

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November 10, 2014 37 comments News