The government's recent decision to kill its online surveillance
legislation marked a remarkable policy shift. The outcry over the plan
to require Internet providers to install surveillance capabilities
within their networks and to disclose subscriber information on demand
without court oversight sparked an enormous backlash, leading to the
tacit acknowledgment that the proposal was at odds with public opinion.
While many Canadians welcomed the end of Bill C-30, my weekly technology law column (Toronto Star version, homepage version) notes the year-long battle
over the bill placed the spotlight on an ongoing problem with the
current system of voluntary disclosure of subscriber information:
Internet providers and telecom companies disclose customer information
to law enforcement tens of thousands of times every year without court
oversight.
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Appeared in the Toronto Star on February 23, 2013 as Canada's Telecom Transparency Gap is Alive and Well
The government's recent decision to kill its online surveillance
legislation marked a remarkable policy shift. The outcry over the plan
to require Internet providers to install surveillance capabilities
within their networks and to disclose subscriber information on demand
without court oversight sparked an enormous backlash, leading to the
tacit acknowledgment that the proposal was at odds with public opinion.
While many Canadians welcomed the end of Bill C-30, the year-long battle
over the bill placed the spotlight on an ongoing problem with the
current system of voluntary disclosure of subscriber information:
Internet providers and telecom companies disclose customer information
to law enforcement tens of thousands of times every year without court
oversight.
The law permits these disclosures with no reporting requirements or
accountability mechanisms built into the process. According to data
obtained under the Access to Information Act, the RCMP alone made over
28,000 requests for customer name and address information in 2010. These
requests go unreported - subscribers don't know their information has
been disclosed and the Internet providers and telecom companies aren't
talking either.
Bill C-30 would have introduced new reporting requirements for these
disclosures, which might have allowed for insights into what Internet
providers and police are doing with subscriber information. The proposed
reporting requirements needed some tweaking - there was nothing to stop
police from by-passing the reporting requirements by voluntarily
collecting the information - but the commitment to increased
transparency on personal information disclosures was a long overdue
reform.
Those provisions may have died with Bill C-30, but the government should
move quickly to establish a statutorily mandated reporting system for
disclosures of personal information by telecom and Internet providers.
Some Internet companies have voluntarily established transparency
programs. Google was the first to do so, having posted transparency
reports every six months since 2009. The company's latest transparency
report provides information on requests to remove data from its search
index, copyright complaints, and demands from governmental authorities
for user data.
The most recent Canadian data indicates that the company receives nearly
100 requests for user data each year from governmental authorities.
Over the past 18 months, Google complied with only one-quarter of such
requests.
Twitter recently followed Google's example by issuing its own
transparency report. While the U.S. had by far the most requests for
user data, Canada ranked third worldwide (tied with the United Kingdom)
with 11 requests in the first six months of 2012. Much like Google,
Twitter complied with only a minority of requests.
While companies such as Google and Twitter voluntarily report requests
for user data, Canada's telecom giants remain silent, offering no
details on the number of requests, the rate of compliance, or how many
Canadians are affected by the disclosures.
In fact, in the months leading up to the introduction of Bill C-30,
Canadian telecom companies formed a secret working group designed to
create an open channel for talks between telecom providers and
government. Rather than focusing on customer privacy, those meetings
included discussions on developing a compensation formula for the costs
associated with disclosing subscriber information.
Both government and the providers should move to address Canada's
telecom transparency gap. The government could revive the disclosure
reporting requirements by including those provisions in either Bill C-55
(a warrantless surveillance bill tabled on the same day the government
announced that it was killing Bill C-30) or Bill C-12 (the languishing
privacy reform bill).
The telecom providers, led by Bell, Rogers, Telus, and Videotron, should
follow the example established by Google and Twitter by closing the
telecom transparency gap. Their customers deserve regular reports on
their disclosure practices as well as aggregate data on actual
disclosures of customer information without court oversight.
Michael Geist holds the Canada Research Chair in Internet and
E-commerce Law at the University of Ottawa, Faculty of Law. He can
reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.
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