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How Telcos and ISPs Hand Over Subscriber Data Thousands of Times Each Year Without a Warrant

Tuesday April 01, 2014
Appeared in the Toronto Star on March 29, 2014 as Internet Data Routinely Handed Over Without a Warrant

The lawful access fight of 2012, which featured then-Public Safety Minister Vic Toews infamously claiming that the public could side with the government or with child pornographers, largely boiled down to public discomfort with warrantless access to Internet subscriber information. The government claimed that subscriber data such as name, address, and IP address was harmless information akin to data found in the phone book, but few were convinced and the bill was ultimately shelved in the face of widespread opposition.

The government resurrected the lawful access legislation last year as a cyber-bullying bill, but it has been careful to reassure concerned Canadians that the new powers are subject to court oversight.  While it is true that Bill C-13 contains several new warrants that require court approval (albeit with a lower evidentiary standard), what the government fails to acknowledge is that telecom companies and Internet providers already hand over subscriber data hundreds of times every day without court oversight.  In fact, newly released data suggests that the companies have established special databases that grant law enforcement quick access to subscriber information without a warrant for a small fee.

The latest data comes from a government response to NDP MP Charmaine Borg's effort to obtain information on government agencies requests for subscriber data. While many agencies refused to disclose the relevant information, Canada Border Services Agency revealed that it had made 18,849 requests in one year for subscriber information including geo-location data and call records.

The CBSA obtained a warrant in 52 instances with all other cases involving a simple request without court oversight. The telecom and Internet providers fulfilled the requests virtually every time - 18,824 of 18,849 - and the CBSA paid a fee of between $1.00 and $3.00 for each request.

The CBSA revelations follow earlier information obtained under the Access to Information Act that the RCMP alone made over 28,000 requests for subscriber information in 2010 without a warrant. These requests go unreported - subscribers don't know their information has been disclosed and the Internet providers and telecom companies aren't talking either.

The recent disclosures also reveal that the telecom companies have established law enforcement databases that provide ready access to subscriber information in a more efficient manner. For example, the Competition Bureau reports that it "accessed the Bell Canada Law Enforcement Database" 20 times in 2012-13. 

The absence of court oversight may surprise many Canadians, but the government actively supports the warrantless disclosure model. In 2007, it told the Privacy Commissioner of Canada that an exception found in the private sector privacy law to allow for warrantless disclosure was "designed to allow organizations to collaborate with law enforcement and national security agencies without a subpoena, warrant or court order." The cyber-bullying bill further supports the warrantless disclosure model since it contains a provision that grants Internet providers and telecom companies full immunity from any civil or criminal liability for voluntarily disclosing subscriber information.

While much of the warrantless disclosure data remains shrouded in secrecy - many government departments refuse to divulge details about their practices and the telecom companies and Internet providers have declined requests to come clean - the latest revelations confirm fears that subscriber information is disclosed tens of thousands of times every year without court oversight.

The law may grant the companies the right to disclose subscriber information without a warrant, but the pervasive warrantless disclosure is still deeply troubling and represents an abdication of their responsibility to safeguard the privacy interests of their subscribers.

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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Who Needs Lawful Access?: Cdn Telcos Hand Over Data on Thousands of Subscribers Without a Warrant

Wednesday March 26, 2014
The debate over Bill C-13, the government's latest lawful access bill, is set to resume shortly.  The government has argued that the bill should not raise concerns since new police powers involve court oversight and the mandatory warrantless disclosure provisions that raised widespread concern in the last bill have been removed.  While that is the government's talking points, I've posted on how this bill now includes incentives for telecom companies and other intermediaries to disclose subscriber information without court oversight since it grants them full civil and criminal immunity for doing so. Moreover, newly released data suggests that the telecom companies don't seem to need much of an incentive as they are already disclosing subscriber data on thousands of Canadians every year without court oversight.

This week, the government responded to NDP MP Charmaine Borg's request for information on government agencies requests to telecom providers for customer information. The data reveals that the telecom companies have established law enforcement databases that provides ready access to subscriber information. For example, the Competition Bureau reports that it "accessed the Bell Canada Law Enforcement Database" 20 times in 2012-13.  The wording may be important, since the Bureau indicates that it accessed the information, rather than Bell provided it. It is not clear what oversight or review is used before a government agency may access the Bell database.


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Government of Quebec Loses Domain Name Dispute Over Quebec.com

Tuesday March 25, 2014
The Government of Quebec has lost its complaint over the domain name Quebec.com.  In a unanimous panel decision that included Copyright Board of Canada board member Nelson Landry, the government failed to demonstrate bad faith and raised questions about why it waited 15 years to launch a complaint.
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Why the U.S. Government Isn't Really Relinquishing its Power over Internet Governance

Tuesday March 25, 2014
Earlier this month, the U.S. government surprised the Internet community by announcing that it plans to back away from its longstanding oversight of the Internet domain name system. The move comes more than 15 years after it first announced plans to transfer management of the so-called IANA function, which includes the power to add new domain name extensions (such as dot-xxx) and to alter administrative control over an existing domain name extension (for example, approving the transfer of the dot-ca domain in 2000 from the University of British Columbia to the Canadian Internet Registration Authority).

My weekly technology law column (Toronto Star version, homepage version) notes the change is rightly viewed as a major development in the ongoing battle over Internet governance. Yet a closer look at the why the U.S. is embarking on the change and what the system might look like once the transition is complete, suggests that it is not relinquishing much power anytime soon. Rather, the U.S. has ensured that it will dictate the terms of any transfer and retain a "super-jurisdiction" for the foreseeable future.



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Why the U.S. Government Isn’t Really Relinquishing its Power over Internet Governance

Tuesday March 25, 2014
Appeared in the Toronto Star on March 22, 2014 as Why the U.S. Government Isn't Really Relinquishing Power Over Internet Governance

Earlier this month, the U.S. government surprised the Internet community by announcing that it plans to back away from its longstanding oversight of the Internet domain name system. The move comes more than 15 years after it first announced plans to transfer management of the so-called IANA function, which includes the power to add new domain name extensions (such as dot-xxx) and to alter administrative control over an existing domain name extension (for example, approving the transfer of the dot-ca domain in 2000 from the University of British Columbia to the Canadian Internet Registration Authority).

The change is rightly viewed as a major development in the ongoing battle over Internet governance. Yet a closer look at the why the U.S. is embarking on the change and what the system might look like once the transition is complete, suggests that it is not relinquishing much power anytime soon. Rather, the U.S. has ensured that it will dictate the terms of any transfer and retain a "super-jurisdiction" for the foreseeable future.


Day-to-day administration of the domain name system is currently managed by the Internet Corporation for Assigned Names and Numbers (ICANN), a U.S.-based non-profit company that operates under a contract with the U.S. government. Critics argue that this means that the U.S. retains final authority over key Internet governance decisions. 



The United Nations and supporting governments have attempted to loosen U.S. control on several prior occasions without success. Despite those failures, the U.S. now voluntarily says it will walk away from its oversight power, tasking ICANN with developing a transition plan that must "support and enhance the multistakeholder model." The U.S. adds that it will not accept a proposal based on a government-led or an inter-governmental organization solution, short-circuiting any hopes the U.N. might have had for assuming control.



Why is the U.S. proposing to walk away now? In recent months, there has been growing momentum to revisit the issue, triggered by the Edward Snowden revelations of widespread Internet surveillance. Although NSA surveillance has no real connection to Internet governance - the management of the domain name system is not typically a surveillance target - the issue has galvanized many countries and groups who sense an opportunity for change. By forcing the issue, the U.S. has successfully seized the agenda and set the conditions for a transfer of power.

While a transfer would be perceived by many to represent a change in control, the reality is that the U.S. will not be relinquishing much power even when (or if) the transition occurs. In the years since the U.S. first indicated that it would shift away from Internet governance, it has steadily erected jurisdictional authority over a considerable portion of the Internet infrastructure.  



For example, in 2009 the U.S. and ICANN entered into an agreement that institutionalized "the technical coordination of the Internet's domain name and addressing system." That document included a commitment for the U.S. to remain involved in the Governmental Advisory Committee (GAC), the powerful body within ICANN that allows governments to provide their views on governance matters. It also contained an ICANN commitment to remain headquartered in the U.S., effectively ensuring ongoing U.S. jurisdiction over it.


Not only is the U.S. able to assert jurisdiction over ICANN, but it has also asserted jurisdiction over all dot-com, dot-net, and dot-org domain names. In 2012, a U.S. court ordered the seizure of a dot-com domain that was registered in Canada with no U.S. connection other than the location of the domain name registry. This effectively means the U.S. retains jurisdiction over half of all domain name registrations worldwide regardless of where they are registered or who manages the system.



The U.S. might transition away from the current model (though the initial 2015 date seems ambitious), but much of its jurisdictional power will remain largely unchanged. The latest announcement has the potential to fulfill a promise made nearly two decades ago, but skeptics can be forgiven for suspecting that power over Internet governance will remain firmly rooted in the U.S. no matter how the issue is resolved.

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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The Web We Want: Could Canada Lead on a Digital Bill of Rights?

Wednesday March 19, 2014
Last week marked the 25th anniversary of the drafting of Tim Berners-Lee's proposal to combine hypertext with the Internet that would later become the World Wide Web. Berners-Lee used the occasion to call for the creation of a global online "Magna Carta" to protect the rights of Internet users around the world.

The desire for enforceable global digital rights stands in sharp contrast to the early days of the Web when advocates were more inclined to tell governments to stay away from the burgeoning medium. For example, John Perry Barlow's widely circulated 1996 Declaration of the Independence of Cyberspace, asked governments to "leave us alone", claiming that conventional legal concepts did not apply online.

While the notion of a separate "cyberspace" would today strike many as inconsistent with how the Internet has developed into an integral part of everyday life, the prospect of a law-free online environment without government is even more at-odds with current realities. Rather than opposing government, there is a growing recognition of the need for governments to ensure that fundamental digital rights are respected.

My weekly technology law column (Toronto Star version, homepage version) notes that building on Berners-Lee's vision of global online protections, the World Wide Web Foundation, supported by leading non-governmental organizations from around the world, has launched a "Web We Want" campaign that aims to foster increased awareness of online digital rights. The campaign focuses on five principles: affordable access, the protection of personal user information, freedom of expression, open infrastructure, and neutral networks that do not discriminate against content or users.


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The Web We Want: Could Canada Lead on a Digital Bill of Rights?

Tuesday March 18, 2014
Appeared in the Toronto Star on March 15, 2014 as The Web We Want: Could Canada Lead on a Digital Bill of Rights?

Last week marked the 25th anniversary of the drafting of Tim Berners-Lee's proposal to combine hypertext with the Internet that would later become the World Wide Web. Berners-Lee used the occasion to call for the creation of a global online "Magna Carta" to protect the rights of Internet users around the world.

The desire for enforceable global digital rights stands in sharp contrast to the early days of the Web when advocates were more inclined to tell governments to stay away from the burgeoning medium. For example, John Perry Barlow's widely circulated 1996 Declaration of the Independence of Cyberspace, asked governments to "leave us alone", claiming that conventional legal concepts did not apply online.

While the notion of a separate "cyberspace" would today strike many as inconsistent with how the Internet has developed into an integral part of everyday life, the prospect of a law-free online environment without government is even more at-odds with current realities. Rather than opposing government, there is a growing recognition of the need for governments to ensure that fundamental digital rights are respected.

Building on Berners-Lee's vision of global online protections, the World Wide Web Foundation, supported by leading non-governmental organizations from around the world, has launched a "Web We Want" campaign that aims to foster increased awareness of online digital rights. The campaign focuses on five principles: affordable access, the protection of personal user information, freedom of expression, open infrastructure, and neutral networks that do not discriminate against content or users.

Supporters recognize that global protections are more likely to develop on a country-by-country basis, with potential domestic support for national digital bills of rights. In the United Kingdom, the opposition Liberal Democrats have already thrown their support behind a digital bill of rights, while the United Nations Human Rights Council has backed a resolution declaring Internet access and online freedom of expression a human right.

With Industry Minister James Moore set to unveil the long-awaited national digital strategy (reportedly to be dubbed Digital Canada 150), these issues have the potential to play a starring role.  

The government has identified universal access as a key issue, allocating $305 million in the most recent budget for broadband initiatives in rural and remote communities.  While there is some disagreement on a target date for universal Canadian broadband - the CRTC has set its goal at 2015, while the federal government is content with 2019 - there is a consensus that all Canadians should have affordable broadband access and that there is a role for the government to make that a reality in communities that the leading Internet providers have largely ignored.

The protection of personal information raises questions about the adequacy of current privacy rules and the concerns associated with widespread surveillance. Industry Canada's Report on Plans and Priorities for 2014-15 quietly referenced "modernizing the privacy regime to better protect consumer privacy online" as a legislative priority for the coming year, the clearest signal yet that the government plans to re-introduce privacy reform.

The surveillance concerns will undoubtedly prove even more challenging, with the government saying little about the steady stream of revelations of government-backed surveillance. The Canadian role in global surveillance activities and the government's decision to revive lawful access legislation represent the most disturbing aspects of online policies that must be addressed for digital rights leadership.

As the government finally embarks on its digital strategy, it has an opportunity to do more than just tout recent policy initiatives. Instead, it should consider linking its goals with the broader global initiatives to help create the Web we want.

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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Why Are Canadian Wireless Carriers Increasing Prices? Because They Can

Tuesday March 18, 2014
Yesterday, I was contacted by a Toronto radio station wanting to discuss wireless pricing increases  that have occurred over the past few months (including increases over the weekend at both Rogers and Bell). Their key question was what lay behind the increased prices?  While some might point to reduced roaming revenues or costs associated with the spectrum auction, I believe the answer is far simpler.

The carriers increased prices because they can.

Indeed, this is precisely what the Competition Bureau of Canada concluded could and would happen in its analysis of the wireless environment in Canada.  In its  January 29, 2014 submission to the CRTC, it stated:


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Canadian Authors & Publishers: We Demand Education Talk To Us As Long As It Leads to New Payments

Friday March 14, 2014
The Canadian Copyright Institute, an association of authors and publishers, has released a new paper that calls on the Canadian education community to stop relying on its current interpretation of fair dealing and instead negotiate a collective licence with Access Copyright. The paper was apparently published in the fall but is being released publicly now since Canadian education groups have refused to cave to Access Copyright's demands.

The CCI document, which raises some of the same themes found in an Association of Canadian Publisher's paper that distorts Canadian copyright law (thoroughly debunked by Howard Knopf), features at least three notable takeaways: the shift to threats of government lobbying, long overdue admissions that the value of the Access Copyright licence has declined, and emphasis on arguments that have been rejected by the courts and government. There are also three notable omissions: the fact that the overwhelming majority of copying in schools is conducted with publisher permission, the role of technological neutrality, and the relevance of other copyright exceptions. By the end of the document, the CCI and Access Copyright work to fabricate a new fair dealing test that is inconsistent with Supreme Court of Canada rulings as they call for dialogue so long as it leads to a new collective licence.


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If U.S. Cloud Computing Isn't Good Enough for the Canadian Government, Why Should It Be for You?

Wednesday March 12, 2014
In August 2011, the federal government announced plans to consolidate more than 100 different email systems used by over 300,000 employees into a single, outsourced email system. While the email transition is currently underway - Bell won the nearly $400 million contract last year - the decision quietly sparked a trade fight with the United States that placed the spotlight on the risks associated with hosting computer data outside the country.

At the heart of the dispute is the emergence of cloud computing services such as web-based email, online document storage, and photo sharing sites. These services are based on a computing infrastructure that relies on huge computer server farms and high-speed network connections that allow users to access their content from any device connected to the Internet.

My weekly technology law column (Toronto Star version, homepage version) notes that cloud computing services offer the promise of convenience and cost savings, but at a price of reduced control over your own content, reliance on third-party providers, and potential privacy risks should the data "hosted in the cloud" be disclosed to law enforcement agencies without appropriate disclosure or oversight.


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