The recent stories about surveillance in the United States and Canada
have generated increased debate in the media over the issue and I've
been privileged to participate in several discussions. Last week, I sat
down with Nick Taylor-Vaisey of Maclean's to discuss the issue. The
full interview is now posted here. Further, CBC's Cross-Country Check-Up spent two hours discussing surveillance and privacy on Sunday's show. I appeared as a guest at about the 54 minute mark. Yesterday, I also participated in a far-ranging debate on surveillance and transparency on TVO's The Agenda. The video version of the program should be online shortly, but in the meantime a podcast version is available.
Finally, my technology law column (Toronto Star version, homepage version)
this week focuses again on the disconnect between 20th century laws and
21st century surveillance. It notes that revelations about secret
surveillance in the United States involving
both Internet-based communications and the collection of metadata from
all cellphone calls immediately raised questions about the possibility
of Canadian involvement or the inclusion of Canadian data. Given the
common communication infrastructure and similarities between Canadian
and U.S. laws, it seemed likely that Canada was engaged in much of the
same activities. Within days, it was reported that Canada has its own
metadata surveillance program, with the ministerial approval coming in
2011 from Defence Minister Peter McKay. Read More ...
The government has tried to downplay the public concern by focusing
on two safeguards. First, it argues that its secret metadata
surveillance program only targets foreign communications. Second, it
notes that the data captured is metadata rather than content and
therefore does not raise significant privacy issues.
response should provide Canadians concerned for their privacy with
much comfort. Indeed, the emphasis on these two issues highlights
how Canadian surveillance laws have failed to keep pace with current
The suggestion that Canadians are not affected by surveillance
targeting foreign communications does not stand up to even mild
scrutiny. The same claims are made by other intelligence agencies,
with each claiming that they limit surveillance to foreign targets.
However, information sharing between intelligence services is
common, providing a backdoor mechanism to access information.
The prospect that U.S. surveillance becomes a key source for
Canadian agencies, while Canadian surveillance supports U.S.
agencies, does not strike anyone as particularly far-fetched. Wayne
Easter, a former government minister with responsibility for CSIS,
has said that such sharing is common. In other words, relying on the
domestic-foreign distinction is necessary for legal compliance, but
does not provide much assurance to Canadians that they are not being
Moreover, given the commingling of data through integrated
communications networks and "borderless" Internet services residing
on servers around the world, distinguishing between Canadian and
foreign data seems like an outdated and increasingly impossible
task. In fact, the reported decision to stop the Canadian
surveillance program several years ago arose in part due to fears of
overbroad surveillance. In the current communications environment,
tracking Canadians seems inevitable and makes claims that such
domestic surveillance is "inadvertent" increasingly implausible.
Assurances that metadata surveillance is less invasive than tracking
the content of telephone calls or Internet usage also ring hollow.
Metadata can include geo-location information, call duration, call
participants, and Internet protocol addresses. While officials
suggest that this information is not sensitive, there are many
studies that have concluded otherwise. These studies have found that
metadata alone can be used to identify specific persons, reveal
locational data, or even disclose important medical and business
The problem is that surveillance technologies (including the ability
to data mine massive amounts of information) have moved far beyond
laws that were crafted for a much different world. The geographic or
content limitations placed on surveillance activities by
organizations such as CSEC may have been effective years ago when
such activities were largely confined to specific locations and the
computing power needed to mine metadata was not readily available.
That is clearly no longer the case. The law seeks to differentiate
surveillance based on geography, but there is often no real
difference with today’s technology. Moreover, the value of metadata
is sometimes greater than the actual content of telephone
conversations. The current law provides few privacy protections and
ineffective oversight in the face of intelligence agencies investing
billions of dollars in surveillance technologies and
telecommunications and Internet companies providing assistance that
remains subject to court-imposed gag orders.
The legal framework leaves Canadians with 20th century protections
in a world of 21st century surveillance. If we genuinely believe in
preserving some privacy in an environment where everyone’s cellphone
call is tracked, we must be open to significant legislative reforms
and increased oversight that better reflects the realities of
modern-day communications surveillance.
TagsShareTuesday June 18, 2013
New technologies have opened the door to greater access for millions of
people who are visually impaired, yet copyright law frequently stands in
the way. This is particularly true in the developing world, where
digital works are often unavailable due to legal restrictions. My weekly technology law column (Ottawa Citizen version, homepage version) notes that on June
17, delegates from around the world will gather in Marrakesh, Morocco
for a diplomatic conference to negotiate the final text on a new United
Nations treaty that is designed to improve access to copyrighted works
for people who are blind or have other perceptual disabilities.
The Treaty for the Visually Impaired, which has been the subject of
years of discussion at the World Intellectual Property Organization,
seeks to address the access problem in two ways.
Read More ...
First, it establishes minimum standards for copyright limitations
and exceptions for the visually impaired. Many developed countries
(including Canada) already have some exceptions, yet standards vary
widely with some rules now too outdated to take full advantage of
new technologies. Moreover, exceptions are frequently missing
entirely in developing countries.
The treaty would address the exception problem by establishing
minimum requirements for all countries. These exceptions include the
right to reproduce or distribute copyrighted works in accessible
formats for the visually impaired. It also includes the right to
make changes to a work to ensure that it is accessible.
Second, the treaty would facilitate the export of accessible works.
Most countries do not permit the export of accessible works on
copyright grounds, leading to wasted expense to make the works
accessible in multiple countries. The end result is that the
visually impaired in each country have access to only a small sliver
of the total number of works that have been made accessible
Given the narrow goals of promoting greater access for the visually
impaired, the treaty should seemingly have been relatively
uncontroversial. The early stages of the negotiations, which were
based on a World Blind Union proposal, centred on issues such as the
scope of the treaty (opponents successfully excluded the hearing
impaired) and whether the proposal should be a treaty or a
The negotiations led to many compromises, but by last year, the
initiative appeared headed toward a binding treaty that would make a
significant difference in the lives of millions of people.
Over the past few months, however, lobby groups have pressured the
U.S. and European governments to water down the treaty to the point
that groups representing the blind fear it may do more harm than
For example, the Motion Picture Association of America has been
pushing for additional limitations on the minimum exception
requirements that would complicate the rules to the point of
rendering them virtually unusable. Moreover, several countries are
also promoting a "commercial availability" requirement that even
non-profit groups say would constrain their ability to make
accessible works available to the visually impaired.
The treaty has also lost a provision that would have allowed
countries to use the law to address limitations on access buried
within the fine print of publisher contracts. That provision
has now been removed, opening the door to contracts that effectively
trump the rights established in the treaty.
In fact, the U.S. has also lobbied to undermine a provision on
digital locks that would have allowed the visually impaired to
circumvent technological restrictions in limited circumstances.
Canada included such an exception in its most recent copyright
reforms, but the U.S. has promoted language that is at-odds with
current Canadian law.
The Treaty for the Visually Impaired marks a long-overdue effort to
ensure that everyone benefits from emerging technologies that open
the door to greater access of digitized works. The Canadian
government has been largely silent on the treaty, but has a chance
later this month to take a strong stand in favour of the rights of
the visually impaired.
TagsShareWednesday June 12, 2013
This is wireless week in Canada with the CRTC unveiling
its consumer wireless code on Monday and Industry Minister Christian
Paradis scheduled to make an important wireless announcement on Tuesday
morning in Ottawa. In anticipation of the focus on telecom issues, my weekly
technology law column (Toronto
Star version, homepage version) assessed whether Canada's failed wireless policy can be saved.
The column opened by noting that earlier this year, Industry Minister Christian Paradis released the
Canadian government's strategy to increase competition in the
wireless sector. Acknowledging the challenges, Paradis promised to
"continue to pay close attention to what is going on and to make
sure that our policies reflect the fact that we want to achieve the
goal of having more competition."
Read More ...
TagsShareMonday June 03, 2013
If Paradis is still paying attention, he will know that the
government's wireless competition strategy now lies in tatters.
Telus has agreed to purchase Mobilicity, one of the new entrants
that was supposed to provide greater competition. Rogers has
agreements in place to purchase previously set-aside spectrum from
Shaw and Quebecor. Meanwhile, rumours abound that the remaining new
entrants will be scooped up by the big three incumbent providers in
Paradis recently characterized
the Canadian wireless pricing as "middle average", but it appears
that the situation is about to become even worse for Canadian
consumers. The incumbents, who bet that the new entrants would be
little more than a short-term blip in the market, kept their prices
steady, deploying cheaper flanker brands to compete for
cost-conscious consumers. If the new entrants exit the market, most
analysts expect prices to quickly rise.
The question now facing Paradis and the government is what can be
done to address competition concerns that affect consumers and
The starting point may be to acknowledge that the last round of
policy initiatives failed. A spectrum set-aside in 2008 opened the
door to new entrants, but enormous barriers remained. These included
the slow relaxation of foreign investment restrictions that created
significant problems in accessing capital, the lack of availability
of the most popular devices (such as the Apple iPhone) on new
entrant networks, and the inability to offer attractive bundled
packages that include wireless, television, and home broadband
There are primarily two things that will drive corporate behavior in
any market - competition and government regulation. In the absence
of robust competition, regulation is needed. The Canadian government
should be doing all it can create a more competition, but it must
also commit to regulation - even if temporary - until that
competitive environment develops.
There are several regulatory options available that may ultimately
enhance competition. First, the government should toughen tower
sharing requirements and domestic roaming rules to make it easier to
new entrants to expand their networks. Further, it should remove all
foreign investment restrictions (currently only smaller operators
may be acquired). In fact, it should consider opening up the
broadcast distribution market so that all competitors can offer
The government could also rethink its approach on the forthcoming
spectrum auction. While it would be unpopular with the incumbents, a
full set-aside geared toward new entrants would virtually guarantee
changes to the competitive landscape. Companies such as Bell and
Rogers already possess large blocks of unused spectrum and the
auction may be the last chance to create a strong, national fourth
Another mechanism to generate more competition would be to create a
regulated mobile virtual network operator market. MVNOs typically do
not own spectrum or network infrastructure. Instead, they purchase
network access at wholesale rates from existing operators and offer
it to consumers with their own retail pricing. MVNOs such as
Canadian-owned Ting have become a hit in the U.S. but are not even
available in Canada. By setting the wholesale price, the government
could use regulation to create a new batch of MVNO competitors in
Canada, much as it has tried to do with Internet access services.
On the consumer
side, the Canadian Radio-television and Telecommunication
of conduct, which was released today, is the starting point
regulation of retail wireless services. The code effectively sets
limit on wireless contracts, creates caps on data roaming fees to
shock, and requires that carriers offer device unlocking services.
A complete removal of foreign investment restrictions for
communications companies, a full spectrum set-aside, and regulated
wholesale pricing seemed unthinkable a few years ago. Yet as
the wireless policy failures mount, the government must act boldly
if it wants the Canadian market to be anything better than "middle
The political world may have been focused last week on crises at the
Senate and the Toronto mayor's office, but a new
report from the government's Science, Technology and
Innovation Council quietly pointed to a serious, emerging economic
crisis. The STIC reported that Canada's research and development
performance is lagging behind the world's leading economies,
continuing a disturbing decade-long decline.
My weekly technology law column (Toronto
Star version, homepage
version) notes the STIC report is the third produced since
2008, but the first to sound an unmistakable alarm on worrying
trends that could have dire long-term consequences for the Canadian
economy. Simply put, based on the latest data, Canada cannot be
regarded as a serious player when it comes to innovation.
Read More ...
The most glaring shortcoming comes from the lack of business
investment in research and development activities. Canada ranks 25th
out of 41 economies with Canadian businesses failing to keep pace
with competitors around the world. Investment in information and
communication technologies, which are viewed as an engine of
innovation, fared particularly poorly.
Not only is Canada's business research and development record weak,
but the Canadian venture capital performance, which plays a key role
in launching new businesses, is similarly grim. The report finds
that Canadian venture capital investment (measured as a percentage
of gross domestic product) ranked 15th out of 27 countries.
The lone bright spot comes from higher education, where expenditures
on research and development have increased significantly over the
past 15 years, resulting in an impressive publication record. Canada
may only account for 0.5 per cent of the global population, yet its
scientists and researchers were responsible for 4.4 per cent of the
world's natural sciences and engineering publications in 2010.
Despite punching above its weight in publications, Canadian
commercialization of academic research remains a concern, with most
universities generating minimal licensing revenues.
So what can be done about Canada's middling innovation record?
The government has expressed disappointment with the reluctance of
business to invest in research and development, but its policies
have thus far failed to generate much change. Ottawa has invested
heavily in supporting business research and development, but the
bulk of that support has come through indirect mechanisms such as
Many other countries invest more heavily in direct funding,
including loans and guarantees, competitive grants, consulting
services, and innovation vouchers. Canada ranks among the lowest of
all economies examined by STIC for these direct funding
models. The Canadian government has been reluctant to adopt
direct funding measures, but the data suggests that its current
strategy is not working and should be revisited.
The Canadian venture capital shortcoming is a long-standing
frustration as emerging businesses have often been forced to look to
foreign investors for support. The data in the STIC report is
striking with private investors accounting for 81 per cent of
venture capital funding in the U.S., but domestic private investors
are responsible for only 25 per cent in Canada.
Canadian businesses rely more heavily on government venture capital
as it comprises 12 per cent of total funding. With the government is
already putting its own money (or taxpayer dollars) into venture
capital, the solution likely does not lie in cutting a larger
taxpayer cheque but rather in identifying any remaining investment
barriers and potential tools to encourage greater entrepreneurial
The educational piece of the puzzle may require a more dramatic
shift. Rather than focusing on locking down publicly funded research
through licensing programs, the government should consider embracing
open models of innovation. The STIC report acknowledges that open
models foster collaboration, reduce costs, and increase the speed of
knowledge development, all areas in desperate need of improvement.
TagsShareThursday May 30, 2013
With the latest phase of Canadian copyright reform now complete, the
government may soon turn to the question of what comes next. Given last
year's major legislative overhaul and the landmark series of copyright
decisions from the Supreme Court of Canada, significant substantive
changes are unlikely to be on the agenda for the foreseeable future.
Instead, my weekly technology law column (Toronto Star version, homepage version) argues that it is time for the government to set its sights on the
Copyright Board of Canada, a relatively obscure regulatory body that
sets the fees to be paid for the use of copyright works. The Board is
largely unknown in public circles, but it has played a pivotal role in
establishing the costs associated with private copying (including a
one-time iPod levy), educational copying, and the use of music by
The litany of complaints about the Board has mounted in recent years:
the public rarely participates in its activities due to high costs, it
moves painfully slowly by only issuing a handful of decisions each year,
and its rules encourage copyright collectives and users to establish
extreme positions that make market-driven settlements more difficult.
Moreover, over the past ten months, the Supreme Court has ruled that its
approach to fair dealing was unreasonable, the Board itself admitted to
palpable error in a decision that resulted in a hugely inflated tariff,
and it has ignored the will of Parliament in reshaping Canadian
copyright law. The Board may keep a steady stream of lawyers and
economists busy, but it is time to acknowledge that it is broken.
Read More ...
TagsShareTuesday May 21, 2013
Last summer's five Supreme Court copyright decisions were all the
result of appeals from Board decisions. In the most closely
watched case - that involving the scope of fair dealing for copying
within Canadian education - the majority of court lambasted
the Board's approach, using terms such as "flawed", "unreasonable",
and "skewed" as well as questioning analysis reached despite an
"evidentiary vacuum". The Board responded with a thinly veiled shot
at the court.
Months later, the Board released decision involving a tariff for the
reproduction of music works in cinematographic works for private use
or for theatrical exhibition. The Canadian Association of Film
Distributors and Exporters had proposed a tiered tariff approach of
a maximum of 2 cents per copy containing 30 minutes of music or more
(less music would result in a lower tariff).
The Board mistakenly established a tariff of three cents per copy,
incorrectly treating three tiers as three cents. The result was the
prospect of royalties that were as much as 15 times higher than
those proposed by the film distributors. The Board was later forced
, admitting that the mistake resulted in procedural
Perhaps most troubling is the sense that the Board has little regard
for the recent legislative and caselaw emphasis on the need for
balance. The latest reforms included provisions that removed the
need for payment for some copying by radio stations. The copyright
collectives warned a House of Commons committee that the bill would
"eliminate the revenues authors and publishers now received from
broadcasters when reproductions of musical works are made and used
for broadcasting purposes."
Soon after the bill took effect, the Canadian Association of
Broadcasters filed an
with the Board to rescind the commercial radio
tariff. The Board dismissed
, arguing that the committee comments did not
constitute a basis for statutory interpretation. Instead, it called
the CAB's application "untenable" and engaged in its own statutory
interpretation, suggesting that broadcasters might not be able to
rely on the new exceptions.
The decision is par for the course for a board that has seemingly
shifted from neutral arbiter to self-appointed copyright collective
guardian with little regard for Parliament and the Supreme
Court. If the government is looking for the next copyright
issue to examine, it might well focus on a board that is largely
inaccessible to the public and content to craft its own view of
copyright regardless of what the government legislates or the
Supreme Court says.
The examination of the proposed Bell acquisition of Astral
Communications took place last week in Montreal with the Canadian
Radio-television and Telecommunications Commission hearing from a wide
range of supporters and opponents of a deal that only last year was
rejected as contrary to the public interest.
As Bell and Astral sought to defend their plan, a familiar enemy emerged
- Netflix. What does a U.S.-based Internet video service with roughly
two million Canadian subscribers have to do with a mega-merger of Bell
My weekly technology law column (Toronto Star version, homepage version) notes that for the past few years, it has become standard operating procedure at
CRTC hearings to ominously point to the Netflix threat. When Internet
providers tried to defend usage based billing practices that led to
expensive bills and some of the world's most restrictive data caps, they
pointed to the bandwidth threat posed by Netflix. When cultural groups
sought to overturn years of CRTC policy that takes a hands-off approach
to Internet regulation, they argued that Netflix was a threat that
needed to be addressed. So when Bell and Astral seek to merge, they
naturally raise the need to respond to Netflix.
Read More ...
This is an age-old strategy that seems to resurface every decade. In
the 1980s, it was the effort to keep large U.S. specialty channels
such as ESPN and MTV out of the market that led to the creation of
TSN and MuchMusic. In the 1990s, the U.S. satellite television
providers were branded the "death stars" and kept out of the market
to allow for Canadian entries. In the 2000s, it was U.S. satellite
radio services that were denied entry until acquiescing to minimum
Canadian content requirements.
In this decade, it is the Internet's turn as over-the-top video
services such as Netflix are viewed as threats to established
Canadian broadcasters, broadcast distributors, and content creators.
To date, the CRTC has largely skirted the issue by pointing to
studies that suggest that Netflix and other over-the-top video
providers have only had a minimal impact on the consumer market. But
that won't last. Whether Netflix or the myriad of other online video
services - from YouTube's forthcoming subscription services to the
National Film Board's documentary film Netflix competitor (scheduled
to launch in 2014) to sports leagues offering season packages for
Internet distribution to film studios launching their own services -
the online distribution model is only going to increase in
Rather than claiming limited impact, the CRTC should embrace the
trend by concluding that the services are a boon to both consumers
and content creators consistent with its policy mandate that does
not require regulatory change or protection for established Canadian
For consumers, the benefits are obvious with more choice, greater
convenience, and lower prices.
Creators also benefit from the proliferation of these services by
virtue of the heightened competition for their content. In years
past, the competitive landscape in Canada was limited to a handful
of broadcasting organizations. The entry of new competitors means
there will be a larger ecosystem of distributors, intermediaries,
and original producers all vying for enough content to make a
compelling offering to consumers.
The established players unsurprisingly view the new entrants as a
threat since they offer competitive content at a fraction of the
price of a typical cable or satellite bill, increase acquisition
costs, and free consumers from being locked into a small number of
Broadcasters and some content creator groups may be comfortable with
a highly regulated system that provides a steady stream of revenue,
but the new environment creates a more competitive landscape and the
promise of increased demand for new creative works. Viewed in that
light, the shift toward a robust online video market should be
welcomed by the CRTC with open arms, not viewed warily as a threat
in need of regulatory intervention.
TagsShareThursday May 16, 2013
As the future of the proposed Canada - European Union Trade
Agreement becomes increasingly uncertain - the EU has been
unwilling to compromise on the remaining contentious issues
leaving the Canadian government with a deal that offers limited
benefits and significant costs - the Trans-Pacific Partnership
Agreement (TPP) is likely to emerge as the government's new top
The TPP has rapidly become of the world's most significant trade
negotiations, with participants that include the United States,
Australia, Mexico, Malaysia, New Zealand, Vietnam, Japan, and
Canada. There is a veil of secrecy associated with the TPP,
however, as participants are required to sign a confidentiality
agreement as a condition of entry into the talks. Despite
those efforts, there have been occasional leaks of draft text that
indicate the deal could require major changes to Canadian rules on
investment, intellectual property, cultural protection,
procurement, and agriculture.
My weekly technology law column (Toronto
Star version, homepage
version) notes the Canadian government has adopted several
measures to guard against leaks by departmental officials.
According to documents obtained under the Access to Information
Act, a November 2012 email to government officials noted that
their access to TPP texts was conditioned on "Secret" level
clearance, an acknowledgement that all texts are watermarked and
can be traced back to the source, and confirmation that no sharing
within government is permitted without prior approval.Read More ...
TagsShareWednesday May 08, 2013
While the government tries to stop potential leaks, the newly
obtained government documents reveal that the Department of Foreign
Affairs and International Trade has established a secret insider
group with some companies and industry associations granted access
to consultations as well as opportunities to learn more about the
agreement and Canada's negotiating position.
Those documents indicate that the first secret industry consultation
occurred weeks before Canada was formally included in the TPP
negotiations in a November 2012 consultation with telecommunications
providers. All participants were required to sign non-disclosure
Soon after, the circle of insiders expanded with the formation of a
TPP Consultation Group created as part of the trade talks in New
Zealand in December 2012. Representatives from groups and companies
such as Bombardier, the Canadian Manufactures and Exporters,
Canadian Agri-Food Trade Alliance, and the Canadian Steel Producers
Association all signed a confidentiality and non-disclosure
agreement that granted access to "certain sensitive information of
the Department concerning or related to the TPP negotiations."
This is not the first time DFAIT has tried to establish a secret
insiders group that is granted preferential access to proposed
treaty information not otherwise available to the public. During the
Anti-Counterfeiting Trade Agreement negotiations, the department planned
a similar insider group - called a Trade Advisory Group - that
initially included representatives from the music, movie, software,
and pharmaceutical industries. The plan was scuttled only
after the department's intention became public.
While the need for business insight as part of trade talks is
understandable, the two-tier approach raises serious concerns about
the lack of transparency associated with Canada's global trade
strategy. As the Canada - EU Trade Agreement has begun to founder,
Canadian officials have become increasingly tight-lipped about the
specific concerns associated with the agreement. By contrast,
European officials regularly update both elected officials and the
general public. In fact, Europe has become the primary source for
information about where Canada stands in the negotiations.
The creation of a secret TPP insider group suggests that the
government is shying away from public consultation and scrutiny of
an agreement that could have a transformative effect on dozens of
sectors. With TPP negotiations set resume in Lima, Peru in less than
two weeks, Canada should be increasing efforts to gain public
confidence in the talks by adopting a more transparent approach.
As Canadians focused last week on the aftermath of the Boston Marathon
bombing and the RCMP arrests of two men accused of plotting to attack
Via Rail, the largest sustained series of privacy breaches in Canadian
history was uncovered but attracted only limited attention. Canadians
have faced high profile data breaches in the past - Winners/HomeSense
and the CIBC were both at the centre of serious breaches several years
ago - but last week, the federal government revealed that it may
represent the biggest risk to the privacy of millions of Canadians as
some government departments have suffered breaches virtually every 48
The revelations came as a result of questions from NDP MP Charlie Angus,
who sought information on data, information or privacy breaches in all
government departments from 2002 to 2012. The resulting documentation
is stunning in its breadth.
My weekly technology column (Toronto Star version, homepage version) notes that virtually every major government department has sustained breaches, with
the majority occurring over the past five years (many did not retain
records dating back to 2002). In numerous instances, the Privacy
Commissioner of Canada was not advised of the breach.
Read More ...
Some of the most vulnerable departments are those that host the most
sensitive information. For example, Citizenship and Immigration
Canada suffered 161 breaches in 2012 - more than three per week -
affecting hundreds of people. The department only disclosed the
breaches to the Privacy Commissioner of Canada on five occasions.
Human Resources and Skills Development Canada famously suffered a
massive breach last year - 588,384 individuals were affected - but
less well known is that the department has had thousands of other
breaches over the past few years. In 2007, a breach affected 28,651
people, yet the Privacy Commissioner of Canada was not informed and
the department is unsure of whether the breach resulted in criminal
Virtually no department has been immune to security breaches with
nearly 100,000 individuals affected by breaches at Agriculture and
Agri-Food Canada since 2008, almost 5,000 individuals hit at
Fisheries Canada with no reporting to the Privacy Commissioner of
Canada, and just under 200 breaches at the RCMP affecting an unknown
number of people.
If a similar situation occurred involving a major Canadian bank,
retailer, or telecom company, there would be an immediate outcry for
tougher rules on mandatory disclosure of security breaches. Yet the
federal government plays by different rules, with no liability and
no legal requirements to disclose the breaches.
Successive federal privacy commissioners have urged the government
to reform the badly outdated Privacy Act to at least hold government
to the same privacy standard that it expects from the private
sector. But those calls for reform have been repeatedly ignored.
Most recently, Privacy Commissioner of Canada Jennifer Stoddart
identified twelve seemingly uncontroversial reforms, including
strengthening annual reporting requirements by government
departments, introducing a provision for proper security safeguards
for the protection of personal information, and creating legislated
security breach notification requirements. None of the
recommendations have been implemented.
In fact, Canadian privacy failures dot the legislative landscape.
Bill C-12, the Canadian private sector privacy bill intended to
implement reforms that date back to hearings conducted in 2006 lies
dormant in the House of Commons. A review of the private sector
privacy law that was required by law in 2011 has seemingly been
forgotten. Anti-spam legislation passed in 2010 and touted as a key
part of the government's cybercrime strategy is stuck as Industry
Minister Christian Paradis dithers on the applicable regulations.
No institution has greater access to the personal information of
Canadians than the federal government. The public entrusts it to
keep their information secure and to take all appropriate action
should a security breach occur. The latest revelations indicate that
the failure to live up to that trust is spread across virtually all
government departments and to the political leaders that have failed
to introduce much-needed legislative privacy safeguards.
TagsShareTuesday April 30, 2013
Last month, Jean-Pierre Blais, the chair of the Canadian
Radio-television and Telecommunications Commission, delivered a
much-discussed speech at the Canadian Media Production Association's
annual conference. The CMPA is Canada's leading organization for the
production of Canadian film and television programming and Blais'
message was intended to both congratulate and challenge the industry.
On the congratulatory side, Blais noted the Canadian film and television
production had a record year in 2012, growing by over $500 million over
the prior year, by far the highest total and fastest growth in over a
decade. Canadian television production led the way, increasing 21.3 per
cent in 2011/12, for a ten-year high of just under $2.6 billion. Most of
the increase was due to English-language programming, with fiction
production growing by over 41 per cent.
Blais' challenge came in several forms, but my weekly technology law column (Toronto Star version, homepage version) notes the comment that attracted
the most attention was his remark that "under my watch, you will not see
a protectionist. I'm a promotionist." Most observers took the comment
to mean that the CRTC will not focus on mechanisms such as Canadian
content requirements and foreign restrictions as a means to advance
Canadian culture. Rather, with billions being spent on the creation of
Canadian programming, it is better to concentrate on marketing and
promotion of those works.
Yet there was a second comment that garnered less attention, but that
may ultimately prove more important. After encouraging the industry to
become more innovative and entrepreneurial, Blais warned "you will need
to compete, just like any other sector."Read More ...
TagsShareTuesday April 23, 2013
That may sound unremarkable, but to an industry that has often
focused on creating rather than competing, it represents a potential
For example, most of the funding for the record amount of
Canadian English-language television programming came from
taxpayers and broadcasters, not the original producers of the
content. According to Profile
2012, an annual report on the state of the industry, only
ten per cent came from private funding such as production
companies and private investors. Canadian distributors covered 18
per cent of the total costs, with foreign distributors kicking in
an additional nine per cent.
That still represents less than half of the total financing costs
for Canadian English-language television programming. Federal and
provincial tax credits provided the largest chunk of funding,
covering 29 per cent of the cost, while broadcaster licence fees
constituted another 25 per cent. The Canada Media Fund, which is
jointly funded by the taxpayers and cable and satellite providers,
covered the remaining ten per cent.
The notion of competing in the market should take centre stage
this week as the CRTC conducts its hearing on whether Canadians
who subscribe to cable and satellite television packages should be
required to pay for channels such as Sun News Network and
Starlight, a proposed all-Canadian movie channel. The regulatory
process has been likened to winning the lottery, since channels
selected for mandatory carriage are guaranteed millions in revenue
regardless of whether Canadians watch or even want the channel.
The best approach would be to scrap the mandatory carriage rules
altogether. Instead, the Commission could require cable and
satellite companies to offer all licensed channels to their
customers. That would enable consumers to decide what they want to
pay for and assuage broadcaster concerns that some distributors may
withhold access to their programming altogether.
That shift in approach would represent a significant change in
Canadian broadcast policy, effectively establishing a framework
that requires the industry to compete for subscribers. As CRTC
Chair Blais would say, just like any other sector.
The state of Internet access in Canada has been the subject of
considerable debate in recent years as consumers and businesses alike
assess whether Canadians have universal access to fast, affordable
broadband that compares favourably with other countries. A new House of
Commons study currently being conducted by the Standing Committee on
Industry, Science and Technology offers the chance to gain a better
understanding of the strengths and weaknesses of Canadian high-speed
networks and what role the government might play in addressing any
The study is ongoing, yet my weekly technology law column (Toronto Star version, homepage version) notes that two issues are emerging as key concerns:
access and adoption.
Read More ...
TagsShareWednesday April 10, 2013
The access issue is no surprise as there are still hundreds of
thousands of Canadians without access to broadband services from
local providers. While this is often painted as an urban vs. rural
issue (with universal access in urban areas vs. sparse access or
reliance on pricey satellite services in rural communities), the
reality is that there are still pockets within major cities in
Canada without access to either cable or DSL broadband service.
Many of these communities are described as "uneconomic", since the
costs associated with building broadband networks are viewed as too
expensive given the expected return on investment. The government
has funded some programs to foster improved access, however more may
be needed to finish the job. This could include direct subsidies
funded from revenues obtained through the forthcoming spectrum
auction or tax relief for community-based broadband initiatives.
Interestingly, the committee
to such investment from Xplornet
Communications, a satellite Internet provider focused on rural
communities that appears to view public support for universal access
as competition. It told the committee that the repeated efforts to
help support broadband access in rural communities was the
"definition of insanity" and that it was better for the government
to stop "distorting the market" by allocating funding to communities
that are otherwise viewed as uneconomic for service providers.
Even if those pleas are rejected, the committee will face the
challenge of addressing a second, less discussed, problem with
Canadian broadband: adoption. Policies aimed at achieving universal
broadband access have typically adopted a "Field of Dreams" style
approach in which it is assumed that "if you build it, they will
Yet the Canadian consumer and business experience to date suggests
that this is not always true. On the consumer side, there are
millions of Canadians with access to broadband networks, but who
choose not to subscribe. The adoption failure is likely the result
of many factors, however, the data indicates that there is a strong
correlation between income and adoption.
Statistics Canada reports
that 97 percent of Canadians in the top income quartile have access
to the Internet in their homes, but that number drops to 54 percent
for those in the bottom quartile. In other words, nearly half of all
Canadians with incomes of $30,000 or less do not have ready access
to the Internet and programs aimed at closing this gap are sorely
missing in Canada.
An oft-overlooked problem is the poor adoption performance of
Canadian businesses. The Canadian Chamber of Commerce told
that 70 percent of small and medium sized
businesses in Canada do not have a website. Moreover, Canadian firms
are investing in technology at rates that are nearly half of those
in the United States.
The government has acknowledged
(though it disputes the Chamber's figures), but
has done very little to address it. For example, a federal
program aimed at helping get businesses online has a target of
supporting only 600 firms with the hope that those companies might
share their experiences with others through word-of-mouth.
Further, when asked about targets for adoption within the next two
years, officials were unable to cite a specific figure.
The commonality between the shortcomings of access and adoption by
both consumers and businesses is that the government has failed to
articulate a digital strategy aimed at solving these problems. Until
that happens, it seems likely that the Canadian digital divide will
continue to expand.