It started innocuously enough with the House of Commons Committee on
Industry, Science and Technology releasing its long-awaited report on
intellectual property in Canada in March 2013. The report included a
recommendation that Canada ratify several international patent and
trademark treaties, which came as a surprise (particularly to opposition
members of parliament) since no witness had raised the issue before the
Within weeks, the government accepted the recommendation and one year
later it moved to ratify the treaties with scant debate or discussion.
Yet the ratification of five intellectual property treaties about which
few Canadians have ever heard and that seem certain to increase fees for
business was only the start.
Indeed, earlier this month, the government quietly included provisions
in the budget implementation bill that will radically overhaul Canadian
trademark law. My weekly technology law column (Toronto Star version, homepage version) notes those changes have not been subject to any serious
debate, discussion or public consultation.
Read More ...
TagsShareWednesday April 23, 2014
Unlike copyright and patent laws, which are focused on striking a
policy balance between access and protection, the primary purpose of
trademark law is consumer protection. Since consumers often rely on
trademarks as an easy means of identifying a product or service
(prominent examples include the Nike swoosh or McDonald's golden
arches), trademark protection helps limit confusion and potential
Given the link between trademarks and consumer protection, it should
come as little surprise to find that a key requirement for trademark
protection is "use" of the mark. If a company is not using the
trademark, there is little risk of confusion and therefore no need
Legal cases dating back more than one hundred years have long
emphasized the importance of use in order to properly register a
trademark. A recent Supreme
Court of Canada decision
confirmed that "while the Trade-marks
Act provides additional rights to a registered trade-mark holder
than were available at common law, registration is only available
once the right to the trade-mark has been established by use."
Despite the long legal history requiring use, the Canadian
government is planning to drop the need for use in order to register
trademark. If the provisions in the budget implementation bill are
enacted, trademarks will be available to signs (which the law says
includes everything from words and names to sounds and smells) that
are either used or proposed to be used.
The trademark law community has reacted with alarm to the planned
Experts note that the change may be
because a system no longer based on use may
unduly encroach on property and civil rights, which falls under
provincial jurisdiction. Moreover, many believe that the changes
will result in sharply increased costs for Canadian business since
the reforms will create considerable legal uncertainty, likely
causing a spike in challenges to proposed trademarks.
The reforms also seem to open the door to "trademark trolls", who
could scoop up dozens of unused, proposed trademarks with plans to
pressure legitimate businesses to pay up in order to release the
trademarks for actual use.
With some in the intellectual property community warning
"instead of simplifying steps for businesses, the Bill proposes a
much less useful Register, higher investigation costs, and shifts
the onus to police over-reaching to businesses, as opposed to the
Trademarks Office", Industry Minister James Moore has surprisingly
succeeded in proposing changes that are both anti-business and
anti-consumer. That may be a boon for a few lawyers, but the
business community has been left wondering how trademark reforms
that no one seems to have requested found their way into a budget
Four years after the Canadian government first announced plans to
develop a digital economy strategy, Industry Minister James Moore
traveled to Waterloo, Ontario, Friday for the release of Digital Canada
150. The long-awaited strategy document identifies five key areas for
policy development: connecting Canadians, protecting the online
environment, developing commercial opportunities, digital government,
and Canadian content.
My weekly technology law column (Toronto Star version, homepage version) argues the release of Digital Canada 150 succeeds on at least three levels.
First, it puts to rest the longstanding criticism that the government is
uninterested in digital issues. Moore quickly emerged as the
government’s digital leader after taking the reins at Industry Canada,
promptly focusing on wireless competition, spam regulation, and now a
digital strategy. After years of complaints that the digital strategy
issue was Ottawa's equivalent of the "Penske File" - all talk and no
action - Moore has acted.
Read More ...
Second, Digital Canada 150 demonstrates that the federal government
has been more engaged on digital issues in recent years than is
generally appreciated. Indeed, much of the document is presented as
a report card, with the requisite check boxes on numerous
legislative initiatives (copyright and trademark reform, spam),
regulatory developments (wireless competition), and program funding
(rural broadband, digital media). The message is clear: the broader
strategy document may have been missing, but digital issues were not
Third, Moore's document provides some guidance on future policy
development. While there are few surprises, there is confirmation
that the government plans to introduce private sector privacy
reform, invest in rural broadband, introduce regulations on
crypto-currencies, continue its welcome emphasis on open data, and
push through lawful access legislation that has been framed as a
Despite these successes, Digital Canada 150 ultimately suffers from
some notable omissions. For a strategy document, it is curiously
lacking in actual strategy. The government updates Canadians on what
it has done and provides some insight into what it plans to do, but
there are few new strategies articulated.
Measurable targets and objectives typically guide strategy
documents, yet there are not many to be found in Digital Canada 150.
In fact, the most obvious target - 98 percent broadband access of 5
Mbps - is slower than many comparable targets around the world and
comes years later than the Canadian Radio-television and
Telecommunications Commission's stated goal for the same level of
Further, the document never links together digital policies with
other government initiatives in a strategic manner. The
government has emphasized its international trade agenda, but there
is no effort to link trade agreements with a strategy to bring
Canadian business online to market and sell to a global marketplace.
Similarly, Canadian foreign policy has adopted strong positions
against authoritarian regimes, yet there is no strategy that
combines that policy with one that prohibits the export of
censorship technologies to those countries that repress free speech.
Digital Canada 150 is also largely silent on the issue of investing
in the online environment. The recent spectrum auction generated
billions of dollars in revenue, but there are seemingly no plans to
directly invest the "digital dividend" on digital issues.
Most disappointingly, Digital Canada 150 lacks a big picture goal or
target that might have made the whole greater than the sum of its
parts. There was no shortage of possibilities such as a
national digital library to revolutionize access in schools and
communities, a rethinking of Canadian surveillance policy so that
mounting fears of widespread surveillance of individuals might be
addressed, structural separation of Internet providers or a plan to
join forces with the private sector to bring affordable access and
computing equipment into every home in Canada.
These were the types of initiatives that might have captured the
public's imagination and put an identifiable face on a broader
strategy document. Instead, four years of waiting has yielded a
modest vision of Canada’s digital future that frequently focuses
more on what the government has done than on where it wants to go.
Moore deserves credit for bringing the strategy to the finish line,
but given the remarkable possibilities created by the Internet and
new technologies, many Canadians were likely hoping for more.
TagsShareSaturday April 05, 2014
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.
My weekly technology law column (Toronto Star version, homepage version) notes 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
Read More ...
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
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
TagsShareTuesday April 01, 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
Read More ...
TagsShareTuesday March 25, 2014
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
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.
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.
Read More ...
TagsShareWednesday March 19, 2014
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
behind a digital bill of rights, while the
United Nations Human Rights Council has backed
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.
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
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.
Read More ...
TagsShareWednesday March 12, 2014
The Canadian government was clearly concerned by dangers associated
with storing potentially sensitive emails outside the country.
Invoking a national security exception, one of its requirements for
the single email system was that it be hosted in Canada on a secured
server. As U.S. companies later noted, this effectively excluded
them from bidding on the contract.
According to documents
recently obtained by the B.C.
Freedom of Information and Privacy Association
, the companies
escalated their concern to U.S. government officials, urging them to
launch a trade complaint over the Canadian requirements. While the
companies explored several alternatives that might address Canadian
concerns, including encrypting all data and retaining the encryption
key in Canada (thereby making it difficult to access the actual data
outside the country), the government insisted on Canadian-based
The reason? According to internal U.S. documents discussing the
issue, Canadian officials pointed to privacy concerns stemming from
the USA Patriot Act.
The privacy concerns raise a bigger question for millions of
Canadians that use U.S. cloud services as well as organizations such
as Canadian universities that are contemplating switching their
email or document management services to U.S.-based alternatives.
Simply put, if U.S. cloud services are not good enough for the
Canadian government, why should they be good enough for individual
In light of the Edward Snowden revelations of widespread
surveillance by the National Security Agency, the answer for many
Internet users will increasingly be that they are indeed
uncomfortable with the loss of control over their data. In recent
months, many countries have begun to explore mandating local cloud
providers to ensure that domestic data stays in the country. In
response, the U.S. has lobbied for inclusion of a provision in the
Trans Pacific Partnership, a trade agreement currently being
negotiated by more than a dozen countries including Canada, that
would restrict the ability for countries to restrict data transfers
and mandate local computer storage.
The Canadian government has said little about its position on the
issue despite the fact that Canadians are already particularly
vulnerable to potential disclosures to law enforcement or
intelligence agencies. According to OECD
, the majority of Canadian dot-ca domain name websites are
hosted outside the country, with Canada ranking among the lowest
countries in the developed world for domestic website hosting.
Moreover, Canadian Internet providers such as Bell exchange their
Internet traffic in the U.S., ensuring that even simple domestic
emails frequently enter the U.S. network before returning to Canada.
Mandating local cloud computing services will not address many of
the privacy concerns associated with widespread surveillance and
inadequate oversight, but when even the Canadian government insists
on domestic computer servers for its information, it may be time for
individual Canadians to think about doing the same.
Last month, I blogged about the CRTC's Talk TV consultation and concerns that the questions were framed in a lopsided manner. CRTC Chair Jean Pierre Blais was asked about those concerns in Twitter chat and he responded that the questions and answers "were intended to be provocative." I address that response in my weekly technology law column (Toronto Star version, homepage version)
highlighting both the concerns with the survey and offering some
additional provocative questions that the Commission excluded.
The column begins by noting that regulation of Internet video services and the prospect of
pick-and-pay television channels headline the second phase of the
Canadian Radio-television and Telecommunications Commission's future of
television consultation which launched late last month. The "TalkTV"
initiative is designed to make it easy for Canadians to participate,
featuring six short scenarios followed by a limited number of choices
Read More ...
While the consultation quickly attracted considerable participation
- the commission said thousands of Canadians responded in the first
week alone - its content raises serious concerns about future plans
for CRTC regulation. Indeed, if the consultation is a signal of
where the commission is headed, not only is the notion of true
pick-and-pay channels dead and the much-disliked simultaneous
substitution alive, but regulation of Internet video services may be
just around the corner.
The Internet video discussion in the survey focuses almost
exclusively on new regulatory fees for services such as Netflix.
After asking respondents whether online services should be required
to contribute to funding for Canadian content, provide
closed-captioning, and adhere to regulated programming standards,
the CRTC poses a series of follow-up questions that all involve
Respondents are asked whether they would pay an extra 50 cents per
month for Canadian-made programming (presumably the additional cost
for a Canadian content contribution fund) or a few cents each month
for closed captioning. The commission also inquires whether
Canadians would be willing to pay $5 more each month for increased
Internet usage costs. The CRTC floats the possibility that such
usage would not count against monthly data caps, suggesting that it
may be willing to violate net neutrality principles as part of a new
Internet regulatory regime.
The consultation delves into other controversial issues, but often
offers a lopsided perspective. Signal substitution, the longstanding
practice that swaps a U.S. feed with the Canadian equivalent (with
Canadian commercials) when the same program is being aired at the
same time, was raised during an earlier part of the consultation as
a policy ripe for reform. Once the issue is explained in the survey,
respondents are offered just three choices: keep the policy
unchanged, black out U.S. signals, or require Canadians to pay extra
fees to compensate stations for lost revenues.
Similarly, the consultation asks whether Canadians would like access
to more U.S. and international programming. The Commission seemingly
pre-judges the issue by framing the ramifications of new programming
as increasing cable and satellite fees, creating lost Canadian jobs,
or developing new channel packages with additional Canadian content
to offset the foreign programming.
When asked about the apparently skewed approach during a recent
Twitter chat, CRTC Chair Jean-Pierre Blais responded that the
consultation was meant to be provocative. Few would object to a
provocative approach that generates interest in broadcast policy,
however, these provocations are entirely one-sided.
For government regulators, it is seemingly provocative to ask about
Internet regulation and the implementation of new fees that could
almost double the effective cost of services such as Netflix. It is
also provocative to equate more consumer choice with lost Canadian
jobs or to propose compensation for Canadian television stations if
simultaneous substitution is removed.
Yet the commission does not offer up similarly provocative options
such as the elimination of many broadcast regulations in order to
create a level playing field with Internet services or removing the
requirement that Canadians purchase basic television services with
all cable and satellite packages. It also does not provoke
respondents with the possibility of new rules to eliminate
simultaneous substitution by forcing Canadian broadcasters to adjust
to a more competitive marketplace or to re-imagine the role of
public broadcasting in Canada.
Given that the CRTC rightly or wrongly often attracts the ire of
Canadians, the survey also avoids the biggest provocation of all -
does Canada still need the CRTC to regulate broadcasting? The
answer to that question might depend upon the final results of its
future of television consultation.
TagsShareWednesday March 05, 2014
Canadians love Internet success stories such as Netflix and Google as
recent data indicates that millions now subscribe to the online video
service and Google is the undisputed leader in search and online
advertising. The changing marketplace may be a boon to consumers, but my weekly technology law column (Toronto Star version, homepage version) notes that it
also breeds calls for increased Internet regulation. That is
particularly true in the content industry, with the film and music
sectors recently calling for rules that would target online video
services, Internet providers, and search engines.
The Canadian Media Production Association, which represents independent
producers of English films and television shows, recently told a Senate
committee that new rules are needed to address the threat posed by
popular Internet video services such as Netflix. The CMPA argued that a
"level playing field" is needed to ensure that there is "choice,
diversity and growth in a more open market place."
Read More ...
TagsShareThursday February 13, 2014
Consumers could be forgiven for thinking that the entry of Netflix
into Canada has increased choice, diversity, and growth, yet the
CMPA wants new rules that would raise costs and impose regulatory
requirements on online video providers.
Its recipe for reform includes three specific changes that target
Netflix. First, it wants new rules requiring foreign-based content
companies to contribute to the creation of new Canadian content. The
CMPA has not suggested a formula for contributions nor explained how
it would distinguish between online services mandated to contribute
and those exempted from such requirements.
Second, it wants to require Netflix to block the use of proxy
services that can be used to disguise the geographic location of a
user. Those services - which are popular with privacy
advocates since they allow users to safeguard their personal
information - can also be used to access the U.S. services that are
otherwise unavailable in Canada such as Hulu or the U.S. version of
Third, it wants Netflix to levy taxes on all subscriptions, raising
broader questions about taxation issues for the myriad of online
services that challenge conventional notions of jurisdiction.
The CMPA is not alone in advocating for new Internet-related rules.
Music Canada, formerly known as the Canadian Recording Industry
Association, has also begun to push for changes that could target
Internet providers and search engines.
Late last year, the organization noted the need for website blocking
to combat sites that facilitate infringement. Graham Henderson, the
Music Canada president, wrote
that government support (which now runs into the tens of millions of
dollars in Ontario alone) should be accompanied by "judicious and
reasonable regulation of the internet. The actions taken by courts
in other jurisdictions have very reasonably required ISPs to block
websites that are almost entirely dedicated to the theft of
intellectual property." Website blocking has proven highly
controversial in many countries, with some courts striking down
blocking laws on free speech grounds.
The blocking requirements would target Internet service providers,
but Music Canada has also identified search results as a problem. In
a presentation to the Ontario Standing Committee on Finance and
Economic Affairs, Henderson claimed
"consumers cannot find legal services on Google," adding that "with
government support, maybe we can urge intermediaries to actually do
something to help consumers find legitimate sources, because I think
they’d like to." Whether that means requiring companies like Google
to adjust their search results by eliminating some results or by
prioritizing industry-friendly websites is unclear, yet the comments
suggest the industry would favour some form of intervention or
The Canadian government has to date been reluctant to wade into the
Internet regulation debate. Moreover, regulators such as the CRTC
have long exempted online services such as Netflix from
broadcast-style regulation. Yet as online services continue to
reshape the marketplace, the pressure for new rules seems likely to
The longstanding debate over the state of wireless services in Canada
has veered across many issues - pricing, roaming fees, locked devices,
new entrants, and foreign investment to name a few. At the heart of all
of these questions is a single issue: is the current Canadian wireless
My weekly technology law column (Toronto Star version, homepage version) notes the competitiveness of the Canadian market is a foundational question
since the answer has huge implications for legislative and regulatory
policy. If the market is competitive, regulators (namely the CRTC) can
reasonably adopt a "hands-off" approach, confident that competitive
forces will result in fair prices and consumer choice. If it is not
competitive, standing on the sidelines is not option, thereby pressuring
government and the CRTC to promote more competition and to implement
measures to prevent the established players from abusing their
Read More ...
TagsShareMonday February 10, 2014
The importance of the question has not been lost on the incumbent
wireless providers. Responding to public and government
concerns about the state of competition, Bell recently told
"the wireless market in Canada remains robustly
competitive." Similarly, Telus maintains
the "claim that Canada's wireless market is uncompetitive is,
frankly, not just woefully misleading, it is an insult to Telus'
team members." To support their position, the incumbent providers
have relied on a University of Calgary study that concluded "there
is no competition problem."
Yet if there is a neutral arbiter on the state of wireless
competition in Canada, it would be the Competition Bureau of Canada,
an independent law enforcement agency responsible for ensuring a
competitive marketplace. Indeed, in a recent submission to the CRTC,
Bell cites to a 2005 Competition Bureau decision to support its
contention that the market remains competitive.
Last month, the Competition Bureau offered its latest
opinion on the wireless competitive environment
and it wasn't
even close: it believes the Canadian market is not competitive and
regulation is needed.
The Bureau's opinion came in a submission to the CRTC on domestic
roaming regulation. Both the Commission and the government have
indicated they plan to pursue regulation to guard against abusive
wholesale pricing of domestic roaming. The issue may be invisible to
consumers, but it is a major concern for regional and smaller
wireless providers, who rely on the national incumbents' networks
for access in markets they do not serve. Those providers claim
that the incumbents are charging unfair prices, thereby limiting
their ability to compete.
While the national providers have been dismissive of the need for
regulation (Bell has argued that entire process is "without legal
foundation"), the Bureau examined the issue and concluded that
companies like Bell can use roaming to shield themselves from
competition, noting that "making it more costly for entrants to
access incumbent networks through roaming agreements is one way for
an incumbent service provider to relax competitive pressure."
If the market was competitive, this would not be a concern. However,
the Bureau concluded that the incumbents enjoy "market power", which
it defines as "the ability of a firm or firms to profitably maintain
prices above competitive levels (or similarly restrict non-price
dimensions of competition) for a significant period of time."
Moreover, it rejected the University of Calgary study, concluding
that it "does not provide adequate support for Bell's claims that
mobile wireless markets in Canada are competitive."
Given its findings, the Bureau urged the CRTC to establish
regulatory safeguards on domestic roaming pricing. New domestic
roaming regulations may be the initial takeaway, but the Bureau's
finding could have far bigger implications. Not only does it
validate federal industry minister James Moore's insistence on the
need for more wireless competition, but it also opens the door to
examining other potential competitive barriers, including exclusive
content deals, international roaming arrangements, and access to new
Earlier this week, I wrote a column (Toronto Star version, homepage version)
arguing that Canada's telecom companies should come clean about their
disclosures of customer information. That column was in response to a public letter from leading civil liberties groups and academics sent to Canada's leading telecom companies asking them to
shed new light into their data retention and sharing policies. The
letter writing initiative, which was led by Christopher Parsons of the
Citizen Lab at the University of Toronto's Munk School of Global
Affairs, is the latest attempt to address the lack of transparency
regarding how and when Canadians' personal information may be disclosed
without their knowledge to law enforcement or intelligence agencies.
That initiative has now effectively been joined by the Office of the
Privacy Commissioner of Canada and NDP MP Charmaine Borg. Chantal
Bernier, the interim Privacy Commissioner of Canada, released recommendations
yesterday designed to reinforce privacy protections in the age of
cyber-surveillance. The report includes the following recommended reform
require public reporting on the use of various disclosure
provisions under PIPEDA where private-sector entities such as
telecommunications companies release personal information to national
security entities without court oversight.
Read More ...
TagsShareWednesday January 29, 2014
In addition, Borg has filed an order
paper question (Q-233)
seeking detailed data on requests to
telecom companies from various government agencies.
As my column notes, concerns with telecom secrecy has become
particularly pronounced in recent months as a steady stream of
revelations that have painted a picture of ubiquitous surveillance
that captures "all the signals all the time", sweeping up billions
of phone calls, texts, emails, and Internet activity with
Canada's role in the surveillance activities remains a bit of
mystery, yet there is little doubt that Canadian telecom and
Internet companies play an important part as intermediaries that
access, retain, and possibly disclose information about their
In the United States, companies such as Verizon and AT&T
have announced plans to issue regular transparency reports on the
number of law enforcement requests they receive for customer
information. The telecom transparency reports come following a
similar trend from top Internet companies such as Google
The first Verizon
was released last week and it revealed that there are
hundreds of thousands of requests for subscriber information every
year. Last year this included more than 30,000 demands for location
data, the majority of which lacked a warrant.
By contrast, Canada's telecom companies remain secretive about their
participation in the surveillance activities, with no transparency
reports and no public indications of their willingness to disclose
customer information without a court order.
The scope of such participation is potentially very broad. Not only
is there the prospect of co-operation with Canadian intelligence
agencies, but Canadian networks and services are frequently
configured to allow for U.S. surveillance of Canadian activities.
For example, Bell and Rogers link their email systems for
residential customers to U.S. giants with Bell linked to Microsoft
and Rogers linked to Yahoo. In both cases, the inclusion of a U.S.
email service provider may allow for U.S. surveillance of Canadian
email activity. Moreover, Bell requires other Canadian Internet
providers to exchange Internet traffic outside the country at U.S.
exchange points, ensuring that the data is potentially subject to
Secret disclosures of subscriber information extend beyond
surveillance programs run by Canadian and U.S. intelligence
agencies. Under Canadian law, telecom companies and Internet
providers are permitted to disclose customer information without a
court order as part of a lawful investigation. According to data
obtained under Access to Information, the RCMP has successfully
obtained such information tens of thousands of times.
In fact, Bill C-13, the so-called "cyberbullying" bill, includes a
provision that is likely to increase the number of voluntary
without court oversight since it grants telecom
companies and Internet providers complete immunity from any civil or
criminal liability for those disclosures.
The privacy implications of this secret disclosure system are
enormous, potentially touching on the private data of hundreds of
thousands of Canadians. Yet the policies seemingly operate between
the cracks in the law, permitting some disclosures without court
oversight, blocking notifications to those who are affected, and
even providing financial compensation from taxpayers to the telecom
companies for their co-operation.
Canadian privacy law requires telecom companies and Internet
providers to adhere to an openness
that includes making "readily available to
individuals specific information about (its) policies and practices
relating to the management of personal information." Those
companies have failed to comply with the spirit of this principle,
suggesting that Privacy Commissioner of Canada should consider
supplementing last week's civil society letter with an investigation
of her own.