The Working Group of Internet Governance has released its final report. As I wrote this week in my Law Bytes column, the report comes on the heels of the U.S. statement that it has no intention of surrendering control of root zone file.
The WGIG report developed a working definition of Internet governance that states:
"Internet governance is the development and application by Governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet."
The report identifies four options for the thorny Internet governance issue:
Option #1 , ICANN stays but the governmental role changes through the creation of a Governmental Internet Council. The GIC replaces the GAC and assumes the role currently held by the U.S. Department of Commerce in ICANN oversight. There are advisory roles envisioned for the private sector and civil society.
Option #2 ,No need for oversight organization. Stronger GAC and creation of international forum for discussion of Internet issues.
Option #3 ,Creation of International Internet Council that would assume responsibility for the Internet governance issues that arise on the national level. ICANN's mandate would need to be altered based on the development of the IIC.
Option #4 , Start from scratch by creating a World Internet Corporation for Assigned Names and Numbers as well as a Global Internet Policy Council.
Where does all this leave the Internet governance issue? If countries are looking to deal, it seems to me that Option #3 provides the best prospect for the basis for negotiation. The U.S. has made it clear that it would not agree to Option #1 (international oversight) or Option #4 (no ICANN). I suspect few other countries would agree to Option #2 with no ICANN oversight.
By default, that leaves Option #3. It focuses on ICANN's softest spot , Internet governance at the national level. This addresses a major concern for many countries and opens the dialogue in the one area where the U.S. may be comfortable with some change. If both ccTLDs and the IANA function are built into national competencies, there may be an opportunity to strike a compromise.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareFriday July 15, 2005 |
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The Canadian Internet Registration Authority, which manages to the dot-ca domain, today launched a critically important public consultation which raises the prospect of a dramatic change to the CIRA board, public elections, and other accountability issues. I have served for the past four years on the CIRA board and I'm proud of much of what has been accomplished. For example, I think we have a fairer domain name dispute resolution policy than that used by ICANN, we've tried to introduce a privacy friendly WHOIS policy, and we've conduct public meetings from coast to coast to engage individual Canadians.
As the organization has grown, so too have the governance challenges. The time may have come for some significant changes to better ensure that a broad and fully representative group of CIRA stakeholders can effectively contribute to the governance of Canada's domain. The deadline for submissions is September 9, 2005. I hope that many Canadians will take a few moments from their summer to consider these proposals and provide some feedback. Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareThursday July 14, 2005 |
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While I thought I was done with the Harry Potter story, this afternoon a blog reader forwarded a copy of the actual Potter Order. The terms are the same as those posted on the Internet by Raincoast Books. However, the original is quite revealing since it also includes several provisions that the judge refused to include in the order. In particular, the judge declined to:
- create a media publication ban on any aspect of the Potter novel not authorized by the publisher
- restrain unpacking or distributing the Potter novel
- compel all purchasers of the book to disclose full details of their purchase including names, addresses, and contact information
- compel anyone who had read the book to provide full details about anyone with whom they may have discussed the contents of the book
There are two things to take from this additional level of detail. First, Raincoast Books sought an order that not only would curtail basic freedoms but it also targeted individual privacy by literally seeking legal authority to compel disclosure about anyone who may have learned of the contents of the book. Second, the judge that issued this order did indeed consider the consequences of the order and amazingly felt that it was appropriate to limit the freedom to read, freedom of speech, and the freedom of personal property.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday July 13, 2005 |
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Having spent much of the day discussing the Harry Potter case, I find myself becoming increasingly troubled by the scope of the injunction issued by the B.C. Supreme Court. The injunction represents more than just a remarkable misuse of copyright law. Quite simply, it is an attack on freedom.
- The freedom to read (the order restrains reading the book).
- The freedom of expression (the order restrains discussing any aspect of the book).
- The freedom associated with personal property (the order compels anyone who has the book to return it, along with any notes, to Raincoast books).
This is all done purely in the name of furthering commercial interests. In Canada, we have some narrow restrictions on hate speech and child pornography. But we do not issue court orders that prohibit children from reading books.
For a judge to issue such a blantantly unconstitutional order is appalling. For a book publisher and a children's author to request such an order, is shameful. We should tell them so.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday July 12, 2005 |
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Alberta Privacy Commissioner has just released a noteworthy decision on the application of private sector privacy laws to mergers and acquisitions transactions. The case involved the acquisition of an Alberta company. As part of the deal, employee information, including home addresses and Social Insurance Numbers, were disclosed. Moreover, since the information formed a material part of the transaction, the personal information was posted on the Internet on SEDAR, the securities clearinghouse, and therefore freely available to all.
The Commissioner found against both the companies and the law firms involved. Commissioner Work does not mince words when he notes that:
"We suggest generally that Shtabsky and Tussman and other law firms have shown a lack of attention to the impact of privacy laws on the myriad legal processes involving the collection, use and disclosure of personal information, including client information and third party information that are common in the type of work they perform on behalf of their clients. Privacy laws are complex, and have implications for their clients on many different types of transactions, including mergers and acquisitions such as in the present case. We believe that lawyers and law firms require heightened awareness and knowledge of privacy laws in order to properly recognize these implications."
To achieve the heightened awareness, Commissioner Work recommended that Stikeman Elliott, a leading national law firm:
- enact a privacy policy and appoint a Calgary-based Privacy Officer;
- conduct comprehensive in-house privacy training with all lawyers and staff;
- ensure that lawyers develop professional awareness and knowledge of privacy law by supporting participation in privacy law seminars and courses and encouraging ongoing education in this regard;
- communicate these findings to all lawyers and staff;
- review its processes when representing clients on business transactions where personal information may be collected, used or disclosed and address any gaps that are identified;
- review the processes and controls employed by Stikemans when material contracts or other filings are posted on SEDAR and address any gaps that are identified.
This decision will have significant reverberations throughout the legal community as it points the liability (reputational and otherwise) that law firms face when dealing with personal information. Moreover, it highlights yet again the fundamental difference between provincial laws that name names (and thus carry serious consequences) and our federal law, which in its current form does little to encourage full compliance.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday July 12, 2005 |
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The Harry Potter court order has generated global attention, leading to several misconceptions. First, the books were not stolen or otherwise unlawful copies. Rather, the distributor apparently neglected to include an "embargo" label instructing the store (a grocery store in Coquitlam, BC) to only begin selling on Saturday. The store placed the books on the shelves and 14 people purchased copies. The fault does not lie with the purchasers, which is why this court order is so troubling.
Second, Raincoast Books, the book distributor, has tried to put a friendly face on the matter by noting that several purchasers have returned the book. They also note that they are offering several incentives to encourage book returns. What they neglect to say, of course, is that these returns are occuring under threat of a court order as the publisher has obtained powerful legal rights against legitimate book purchasers that even extends to what they are permitted to say.
In light of this court order, the most difficult question is why would a judge grant such an order (and why would lawyers ask for it)? I suspect the answer is simply that Raincoast asked for everything they could think of and the judge, considering their case on an emergency basis on a Saturday, granted the order without giving it much thought. While Raincoast may have relied on copyright law, it is unclear where there is any act of infringement here. More likely is that we have a publisher that is misusing copyright law and a judge that has sadly played right along.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday July 12, 2005 |
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A British Columbia court has ordered purchasers of the new Harry Potter book to return it immediately and forbid anyone from discussing any elements contained in the book itself. The latest instalment of Harry Potter apparently goes on sale on Saturday but at least one BC bookseller began selling it in advance. The publisher wasn't particularly pleased and obtained a court order stopping the bookseller (or any bookseller) from selling the book until the official release date.
While that is understandable, the remainder of the court order is a bit harder to take. People have legitimately purchased the book, yet now face violation of a court order if they fail to return it immediately, discuss it, or do anything else with the book. While a court might look skeptically on an attempt to bring an action against a purchaser who fails to return the book, why the court would grant such a broad order that reaches down to the underlying purchasers suggests that this could turn into a real horror story.
Update: I've posted a further update on this story that seeks to address the misconception that the case involves stolen versions of the book.
Update II: I've posted a second additional comment to supplement what I have come to realize was an understated reaction to this case. The scope of the injunction is remarkably broad and represents a direct attack on Canadian freedoms.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareMonday July 11, 2005 |
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My weekly Law Bytes column (Toronto Star version, freely available hyperlinked version) assesses the recent round of Internet governance developments including (i) the U.S. statement which indicated that they no longer intend to transfer control over the root servers to ICANN, but rather to maintain their "historic role in authorizing changes to the authoritative root zone file:" (ii) the ICANN meeting this week in Luxembourg; and (iii) the release of the Working Group on Internet Governance's report (likely this week as well).
The column laments the general lack of attention accorded to ICANN and Internet governance, which I argue is due in part to general misconceptions about the issue. For some, the term Internet governance conjures up images of new Internet laws and regulations, yet ICANN is not a law-making entity.
Others envision Internet governance as little more than the technical management of the domain name system with no meaningful role for individuals. This perspective posits that the public has little reason to concern itself with technical issues as long as their email arrives at the appropriate inbox and websites can be accessed as expected.
The reality actually lies somewhere between these two extremes. Policies involving the technical management of the Internet do have a regulatory effect on issues that concern the public. For example, domain name dispute resolution policies have implications for free speech on the Internet. Similarly, policies on access to registrant information contained in domain name registration databases raise serious privacy issues, while decisions to establish new domain name extensions, such as the just-approved dot-xxx, raise the prospect for new governmental Internet regulation.
Though most were slow to realize it, national governments also have a significant interest in Internet governance issues, particularly with respect to their national country-code domains (such as the dot-ca in Canada). As governments have gradually sought to influence Internet governance matters, many have felt stymied by ICANN and its associated processes, which has led to more policy twists and turns than a Desperate Housewives episode.
The column then reviews the recent developments (including the Canadian invitation to comment on the issue) and sets out several possible outcomes. I conclude what I suppose is fairly obvious: Internet governance is a thorny issue made more complicated by the dizzying array of meetings and policy documents. Stripped to the core, however, the issue is now simply about control , control over key functions of the Internet and control over the policy making levers that impact Internet free speech, privacy, and e-commerce. With so much at stake, it's time the public starts paying attention.
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Last week I received a deeply troubling email from the Frontier School Division, which serves thirty-five communities and forty-one schools in remote/northern Manitoba. The school division wrote to the National Gallery of Canada last October requesting a copy of a photograph taken in 1850 of a then-young artist named Paul Kane. The request came after the Stark Museum in Orange, Texas donated four reproductions of Kane's paintings to the school division. The paintings were "coming home", with one of the portraits featuring Ogemawwah Chack, "The Spirit Chief," who is a direct ancestor of many local residents. It is the only likeness of this aboriginal elder in existence. The school district requested the photograph since it wanted to create an explanatory text to accompany the paintings.
In responding to the request, the National Gallery sought $150 for a copy of the photograph, more than ten times the fee charged by the National Archives for a similar service. Moreover, the Gallery claimed the right to see and approve final design proofs of the usage of this public domain image.
The School Division has produced a lengthy recount of the correspondence that followed (which they have kindly allowed me to post), including claims by the office of the Minister of Canadian Heritage that they could do little to help and further asserting that the Gallery holds copyright in the copy of the photograph. As the School Division notes:
"We have been involved in curriculum development at Frontier School Division for nearly two decades now, and have purchased hundreds of copies of archival photographs and paintings over the years at nothing more than the cost of reproduction. These copies have been used in our educational publications, which are expensive enough to create, without the additional costs that institutions like the National Gallery would like to charge us."
I'm not sure what is more remarkable: that our government officials would seek to deny that they have an important role to play in facilitating access to Canadian heritage or that this courageous school district would stand up and fight for access to its cultural heritage in the face of unyielding government and museum officials.
Just before Parliament broke for the summer, Canadian Heritage Liza Frulla claimed that she "does not need advice on protecting Canadian culture" given that "that is the story of [my] her life." If protecting Canadian culture means putting it under a pricey lock and key, perhaps not. Out of this sad tale, we must ultimately ask whether this Minister will recognize that support for Canadian heritage requires support for more than just large rights holder groups, who are frequently dominated by foreign interests? While I know that it can get noisy in an HMV record store, surely the Minister of Canadian Heritage can hear the cries of the archivists, historians, and other groups who are also directly part of the Minister's mandate.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareSunday July 10, 2005 |
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The Consumers Measures Committee, a committee comprised of federal, provincial, and territorial consumer protection representatives, has launched a public consultation on identity theft. The background paper identifies several potential legislative solutions including a requirement for organizations to notify consumers affected by a security breach; the placement of a fraud alert on a consumer's credit file; the ability for consumers to put a freeze on the sharing of their credit reports without prior notice; and a requirement for credit bureaus to take reasonable steps to authenticate persons accessing credit reports. Comments on the paper are due by September 15, 2005. Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareSunday July 10, 2005 |
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