My latest Law Bytes column (Canada Needs A National Privacy Breach Reporting Law Toronto Star version, freely available hyperlinked version) makes the case for a national Canadian privacy and security breach reporting law. Over the past twelve months, there has been a staggering number of reported privacy and security breaches -- with some experts estimating that more than 50 million people have been put at risk since the start of this year alone. While the number of breaches may not have changed (few doubt that privacy breaches have been occurring for years), news of yet another privacy or security breach, whether it is the 40 million credit card holders whose personal information was recently placed at risk or it is the several dozen CIBC banking customers whose data was inadvertently faxed to a West Virginia junkyard, this type of violation has become a staple of the daily news cycle.
The change in practice is due in large measure to the State of California’s SB1386, a two-year old law which mandates that companies and agencies that do business in the state or possess personal information of state residents must report breaches in the security of personal information in their possession.
Unfortunately, no similar law exists in Canada at the present time. In fact, until Ontario Privacy Commissioner Ann Cavoukian publicly called for the adoption of such a law late last month, no Canadian privacy commissioner at either the federal or the provincial level had used their position to pressure for such reforms.
With Industry Minister David Emerson leading a review of Canada’s national privacy law next year, however, it appears likely that a reporting requirement will be a major topic of discussion. Privacy advocates are likely to support a reporting requirement, though many larger Canadian companies, fearful of the negative publicity associated with such disclosures, may voice opposition
The column assesses the major points likely to be raised by opponents of such a reform and still concludes that Canada needs such a law. The Canadian business and privacy communities point with pride to Canada’s private sector privacy law, rarely hesitating to remind observers that the U.S. has yet to enact similar, broadly applicable privacy regulation. As our southern neighbours march toward a national privacy and security breach disclosure law, Canada may find itself playing catch up on the defining privacy issue of the year.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareMonday July 04, 2005 |
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As will be obvious to anyone visiting the site (and not so obvious to anyone reading this in an RSS reader), MichaelGeist.ca has undergone a significant makeover. In addition to the need for a refresh, there were two primary reasons for the change. Read More ...First, I wanted to make it easier to people to access my various articles and postings. As the site has grown, it has become more difficult for visitors to find related articles and other content on point. The new site should make this much easier with auto-generated suggestions of related content, topic pages, and greater ease of use. The site also contains a much wider array of RSS feed choices that will hopefully eliminate some RSS problems some users were experiencing. Second, I wanted to provide better feedback mechanisms. The site finally offers the chance for visitors to comment on articles and posting. I encourage readers to take a look around and to provide me with any further suggestions or comments as we iron out the inevitable bugs that occurred during the site migration. |
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The Toronto Star features a special edition of my Law Bytes column ( HTML backup version, freely available hyperlinked version; Toronto Star reg. version) reflecting on Monday's Grokster decision. I argue that while the highest court in the U.S. unanimously ruled that two file sharing services, Grokster and Streamcast, can be sued for actively encouraging copyright infringement by their users, the decision is not the clear cut win its supporters suggest. The U.S. Supreme Court found itself in a difficult position. Grokster and Streamcast did not make for particularly sympathetic defendants, however, punishing them could negatively impact the technology community and the innovation process. Monday's decision attempts to have it both ways, by holding out the prospect of liability for these particular services but preserving the principles that the technology community holds dear. The court left the core Sony Betamax principle untouched (though it is clear from two concurrent judgments that the court is actually split three ways in its view of how far the principle should extend), yet it revived the doctrine of active inducement of copyright infringement. In applying the doctrine, file sharing services that "actively induce" their users to engage in copyright infringement would be unable to rely on the protections afforded by the Sony Betamax case. While that may be bad news for Grokster and Streamcast, the decision may actually provide helpful guidance to other file sharing services on how they can survive in the current legal climate. In seeking to define the meaning of "active inducement", the court ruled that liability would require a demonstration of "purposeful, culpable expression and conduct." Moreover, it concluded that there would be no liability for knowledge of potential or actual infringement; no liability for product support or technical updates, and no liability for failure to take affirmative steps to prevent infringement. In many respects the Grokster decision is a mirror image of the CRIA case. While the unanimous verdict left the industry calling it a "9-0 shellacking", the reality is that many file sharing services will be pleased with the decision as it provides them with a roadmap to avoid future liability. Moreover, with U.S. Congressional leaders such as Senator Orrin Hatch indicating that there is now no rush to legislate, the threat of new anti-P2P statutes has also subsided. It invariably takes several years for the effects of landmark court cases to emerge. The recording industry hopes that the Grokster case will end unauthorized P2P file sharing services. With the U.S. Supreme Court upholding the potential legality of those services, however, it seems more likely that the decision will one day be viewed as the beginning of the end of the legal war against P2P services. |
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The Toronto Star features a special edition of my Law Bytes column (freely available hyperlinked version; Toronto Star reg. version) reflecting on Monday's Grokster decision. I argue that while the highest court in the U.S. unanimously ruled that two file sharing services, Grokster and Streamcast, can be sued for actively encouraging copyright infringement by their users, the decision is not the clear cut win its supporters suggest.Read More ...The U.S. Supreme Court found itself in a difficult position. Grokster and Streamcast did not make for particularly sympathetic defendants, however, punishing them could negatively impact the technology community and the innovation process. Monday's decision attempts to have it both ways, by holding out the prospect of liability for these particular services but preserving the principles that the technology community holds dear. The court left the core Sony Betamax principle untouched (though it is clear from two concurrent judgments that the court is actually split three ways in its view of how far the principle should extend), yet it revived the doctrine of active inducement of copyright infringement. In applying the doctrine, file sharing services that "actively induce" their users to engage in copyright infringement would be unable to rely on the protections afforded by the Sony Betamax case. While that may be bad news for Grokster and Streamcast, the decision may actually provide helpful guidance to other file sharing services on how they can survive in the current legal climate. In seeking to define the meaning of "active inducement", the court ruled that liability would require a demonstration of "purposeful, culpable expression and conduct." Moreover, it concluded that there would be no liability for knowledge of potential or actual infringement; no liability for product support or technical updates, and no liability for failure to take affirmative steps to prevent infringement. In many respects the Grokster decision is a mirror image of the CRIA case. While the unanimous verdict left the industry calling it a "9-0 shellacking", the reality is that many file sharing services will be pleased with the decision as it provides them with a roadmap to avoid future liability. Moreover, with U.S. Congressional leaders such as Senator Orrin Hatch indicating that there is now no rush to legislate, the threat of new anti-P2P statutes has also subsided. It invariably takes several years for the effects of landmark court cases to emerge. The recording industry hopes that the Grokster case will end unauthorized P2P file sharing services. With the U.S. Supreme Court upholding the potential legality of those services, however, it seems more likely that the decision will one day be viewed as the beginning of the end of the legal war against P2P services. |
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The NY Times runs a noteworthy article
on the exceptional growth of user generated content. Described as "the
next chapter of the WWW", the article calls attention to the abundance
of user-generated content including online games, desktop video and
citizen journalism sites. Read More ...It touches on many examples including tagging, blogging, and new
social software, noting that "many Internet industry executives think
it poses a new kind of threat to Hollywood, the recording industry and
other purveyors of proprietary content: not piracy of their work, but a
compelling alternative. The new services offer a bottom-up creative
process that is shifting the flow of information away from a one-way
broadcast or publishing model, giving rise to a wave of new business
ventures and touching off a scramble by media and technology companies
to respond."
The question of how to respond is not limited to media and
technology companies. Our government's cultural and copyright policy
must also respond by providing active support for this remarkable
flourishing of creativity. |
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Question period in the House of Commons today, the last of the session, featured the following exchange: "Ms. Bev Oda (Durham, CPC): Mr. Speaker, Canada has a world class Internet infrastructure in our schools but the heritage minister's new copyright legislation makes it restrictive, onerous and possibly more costly for schools, teachers and students to download on-line educational material. This legislation will make routine classroom activities illegal. Why do the government and the minister want to make our students and teachers pay more for materials they are using now or make them criminals under a new copyright law? Hon. Liza Frulla (Minister of Canadian Heritage and Minister responsible for Status of Women, Lib.): Mr. Speaker, the hon. opposition member knows very well that we promised to table the copyright law in June, which we did. We also said that as far as the education matter is concerned, we will study it and focus on it solely after second reading of the bill. We will study the education matter because it does not have consensus. I also want to say to my hon. critic that children can be in school but once they become researchers and authors, they also to have their copyrights reserved and paid for." Read More ...I could focus on the fact that I'm delighted that Ms. Oda has targeted the issue of copyright, the Internet and education. I wrote about the same issue earlier this week and I think it will emerge as the most discussed shortcoming of Bill C-60. Alternatively, I could focus on how Ms. Frulla's comments are so obviously off-base, but it is difficult to know where to start. Those familiar with copyright will want to ensure that she is familiar with the fair dealing provisions that speak directly to the use of copyright works for research; political strategists will question how any minister can possibly think that pursuing an anti-education position is wise; and millions of Canadian parents, facing shrinking school and library budgets, will simply shake their heads and remember what the Liberals stood against at election time. While those issues are worthy of comment, this provides a good opportunity to briefly discuss copyright policy responsibility in Canada, which is shared by the Ministers of Industry and Canadian Heritage. The Canadian Heritage minister introduced Bill C-60, but the drafting of the bill and the accompanying press release came from both departments. The Minister of Industry's copyright responsibility comes directly from the Copyright Act itself. Section 2 of the Act (the definitional section) defines Minister in the Act as the Minister of Industry. The Minister of Canadian Heritage is not mentioned in the Copyright Act. That Minister garners copyright policy responsibility through the Department of Canadian Heritage Act. Section 4, which lists the Minister's powers and responsibilities, includes 4(2)(j) which grants responsibility over "the formulation of cultural policy, including the formulation of cultural policy as it relates to foreign investment and copyright." This distinction came to mind as I read Ms. Oda’s question, which focused on Bill C-60’s impact on education and the Internet. While the question was addressed to Ms. Frulla, to my mind, this is properly a question for the Minister of Industry. The Canadian Heritage Minister has responsibility for copyright within the formulation of cultural policy. Had Ms. Oda asked about compensation for authors whose work is used in schools, I can understand why the Canadian Heritage Minister might respond. But that is not what she asked. Her question was very specifically about the educational environment and the Internet, which falls outside the mandate of the Canadian Heritage Minister. I have no doubt that Industry Minister David Emerson played an important role in seeking to bring some balance to Bill C-60 as reflected in provisions such as the notice and notice approach for ISPs. It is time for similar balance in the House of Commons. Canadian MPs are headed out of Ottawa for the summer, but when they return in the fall it is essential that the Copyright Act's Minister move to the forefront of the copyright file. |
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The Canadian, U.S., and Mexican government quietly released their Security and Prosperity Partnership for North America today. While the documents contain the usual high level commitments, several elements are worth watching from an technology and privacy law perspective. First, the document commits to a "Fake Free North America." This apparently includes a coordinated strategy to combat counterfeiting and piracy. This particular issue was also raised in the recent USTR report and so this new initiative might result in some action. Thankfully, there is no mention of the U.S.'s perception that Canadian copyright reform is inadequate. Second, the agreement also includes a new Framework of Common Principles for Electronic Commerce between the three countries. Annex C sets out a plan for implementing the principles and two issues caught my eye. First, the plan envisages combating spam through information sharing and the adoption of industry best-practices. This language is not nearly as strong as that used by the National Task Force on Spam, but may reflect the political realities of negotiating principles with the U.S. Second, the plan calls for the establishment of a formal process for consultation on issues related to the protection of personal information and trans-border data flows, consistent with privacy goals, the needs of legitimate private and public sector business as well as the protection of public safety and national security. If this does indeed result in a formal process, this issue has some potential given the growing concern associated with U.S. law enforcement access to Canadian data and related outsourcing issues. |
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As expected, a group of associations have filed a letter requesting that the federal government set aside or refer back to the CRTC the recent pay radio decision. The groups launching the appeal include ACTRA, the Canadian Independent Record Production Association, the Communications, Energy and Paperworkers Union of Canada, the Directors Guild of Canada, the Friends of Canadian Broadcasting, the National Campus and Community Radio Association, SOCAN, the Songwriters Association of Canada, and the Writers Guild of Canada. Interestingly, no CRIA and no Canadian Association of Broadcasters, though those associations may act on their own. |
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Read More ...Grokster certainly didn't win this case, but more importantly, P2P technology didn't lose. As many predicted, the court was clearly (and unanimously) uncomfortable with Grokster and what it viewed as intentionally profiting from copyright infringement. By seeking to retain Sony but build in active inducement, it is trying to navigate a difficult fine line. The Souter money quote calls for an inducement rule premised on "purposeful culpable expression and conduct." It will be up to future courts to determine how tough a standard this creates, but by excluding actual knowledge of infringement, I think this presents a fairly high threshold. While we will look on with great interest at what happens on remand, a potential future action against BitTorrent seems to me to be much more interesting. BitTorrent may well have far less evidence of purposeful culpable expression, even with knowledge of infringement. Moreover, if the market evolves in the manner described by Breyer, I believe that future P2P services will have even less evidence as they legitimately develop services that build on the interest in non-infringing sharing despite the knowledge that their systems support infringing activities. Though not core to the decision, I find Breyer's willingness to question the economic impact of P2P on the recording industry noteworthy. Over the past three weeks, the OECD, FTC, and now the U.S. Supreme Court have all cast doubt on the linkage between P2P and declining music sales. That makes for a strong trio and should help move the debate beyond unsubstantiated claims of a direct correlation between file sharing and the recording industry's bottom line. |
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While some of provisions strike an admirable balance, those that are ostensibly designed to facilitate technology-based education and the digital delivery of library materials fall far short of their goal by hobbling any new rights with suffocating restrictions that render the provisions practically useless. Read More ...For example, Bill C-60 purports to promote Internet-based learning by permitting schools to communicate lessons featuring copyrighted materials via telecommunication. The bill quickly restricts that new right, however, by forcing schools to destroy the lesson within 30 days of the conclusion of the course. Moreover, schools are required to retain, for three years, records that identify the lesson as well as the dates it was placed on a tangible medium and ultimately destroyed. The library provisions are even more onerous, turning librarians in digital locksmiths, who are ironically compelled to restrict access to knowledge in order to provide it. The bill allows libraries and archives to provide digital copies of materials, however, in order to do so they must limit further communication or copying of the digital files and ensure that the files cannot be used for more than seven days. The column argues that we can do better. In the short term, the provisions in Bill C-60 that seek to facilitate knowledge distribution through digital networks should be amended by removing the restrictions that have been placed on educational institutions and libraries. Long term, the column identifies alternative reforms that would better facilitate access to knowledge and the potential of the Internet. These include creating a national digital library, moving toward a fair use model, and providing more active support for the public domain. While copyright is frequently characterized as a battle between creator and user interests, policies such as these that seize technology and Internet opportunities generate benefits for all constituencies including greater exposure and income for creators, increased access to knowledge for users, and economic growth for the broader Canadian economy. The most disheartening aspect of Bill C-60 is that there is so little in it that unifies technology with culture and education to the benefit of all. Rather, the potential of the Internet is viewed as a threat, leading to legislative provisions that will leave Canada looking on enviously at other countries that courageously put the public interest first. |
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