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Michael Geist's Blog

Rogers' Changing Tune on Fully Opening Canadian Wireless to Foreign Investment

Rogers' executive Rob Bruce in 2012 on changes to Canadian foreign investment rules that removed restrictions for companies with less than ten percent of the market:

“Our view is 'bring it on. As far as competition goes, we've always been a full-speed-ahead competitor and we're ready to go with whoever comes to market.”

Rogers' CEO Nazr Mohamed in 2013 on Canadian wireless foreign investment rules:

Mohamed repeated that Rogers favours opening foreign investment for large telecom players too, which can't be more than one-third foreign owned. "If the Canadian government decides to open up foreign ownership, it should open it up for everybody," he told reporters later.

Rogers Deputy Chair Edward Rogers yesterday on Canadian foreign investment rules:

It's a complex topic but I think our view is as Canadians we better really study and understand what that is before we do it, because the model we have now, I believe, allows Canadians to have the best wireless industry, the best cable industry, and some fantastic media assets in Canada. And I personally don’t want to just sell that. So, the shareholders maybe the richest executives enjoy that. But we have the hollowing out of Canada after that. I don't think there's any formula where any of these companies are own outside of Canada and they do better for customer. I think there is a lot you could argue that if we were a branch plant that Canada would be last.

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Here We Go Again: Canadian Recording Industry Calls on Government To Regulate the Internet

Graham Henderson, the head of the Music Canada (formerly the Canadian Recording Industry Association) wrote a blog post late last year lamenting musicians' earnings, a situation he blames on the Internet allowing a few to "amass staggering, unprecedented wealth" while musicians toil for tiny incomes. Leaving aside the facts that the Canadian music industry experienced increased digital sales last year (while sales declined in the U.S.) and that the Ontario government is handing out tens of millions of tax dollars to the industry, Henderson now says the government needs to step in and regulate the Internet. According to Music Canada, government support must be complimented 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.

In fact, Internet regulation and blocking websites are not the only music industry target. Last week, Music Canada appeared before the Ontario Standing Committee on Finance and Economic Affairs, where it cited Google as a problem:


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Canadian Regulators Place Google's Business Model Under Microscope

Among the many Internet success stories of the past two decades, Google stands alone. The undisputed king of search, hundreds of millions rely on it daily, supporting an Internet advertising business model that generates tens of billions of dollars annually.

My weekly technology law column (Toronto Star version, homepage version) notes that kind of success invariably leads to legal and regulatory issues, though most of Google's legal fights have focused on content, such as the inclusion of controversial websites in its search index, the digitization of millions of books through its book search initiative, and the removal of links that may lead to websites that host infringing content.   


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The Shameful Canadian Silence on Surveillance

Later this morning, U.S. President Barack Obama will give a speech on U.S. surveillance activities in which he is expected to establish new limitations on the program. While the measures will likely fall well short of what many believe is necessary, it is notable that the surveillance issue has emerged as a significant political issue since the Snowden leaks and the U.S. government has recognized the need to address it. 

Reaction to the Snowden leaks in the U.S. has not been limited to political responses. In recent months, Verizon and AT&T, the two U.S. telecom giants, 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 leading Internet companies such as Google, Twitter, Microsoft, and Facebook

The U.S. reaction stands in stark contrast to the situation in Canada. Canadian government officials have said little about Canadian surveillance activities, despite leaks of spying activities, cooperation with the NSA, a federal court decision that criticized the intelligence agencies for misleading the court, and a domestic metadata program which remains shrouded in secrecy. In fact, the government seems to have moved in the opposite direction, by adopting a lower threshold for warrants seeking metadata than is required for standard warrants in Bill C-13.


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Why the Justice Ministers' Report Fails To Make the Case for Bill C-13's Lawful Access Provisions

Earlier this week, I posted on how Canadian law already features extensive rules that can be used to target cyberbullying, which raises questions about the prime justification for Bill C-13 (the cyber-bullying/lawful access bill). That post attracted a response from the Department of Justice, which (consistent with politicians and other officials) points to a June 2013 report on cyberbullying from federal and provincial justice ministers as the basis for Bill C-13.

While the government seems to think the report provides a solid foundation for its bill, the reality is that the justification in the report for the lawful access provisions stands on very shaky ground.


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ISPs Push For Two-Tier Internet Based on Data Caps

Net neutrality has been one of the defining Internet policy issues of the past decade. Starting with early concerns that large telecom and Internet providers would seek to generate increased profits by creating a two-tier Internet with a fast lane (for companies that paid additional fees to deliver their online content quicker) and a slow lane (for everyone else), the issue captured the attention of governments and telecom regulators.

My weekly technology law column (Toronto Star version, homepage version) notes that while the net neutrality challenges evolved over time, the core question invariably boiled down to whether Internet providers would attempt to leverage their gatekeeper position to create an unfair advantage by treating similar content, applications or other services in different ways.


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Time for a New Plan: With Government's Wireless Strategy in Tatters, Regulation May Be Only Option

The federal government's spectrum auction starts today with its wireless strategy in tatters. Late yesterday, Wind Mobile announced that it was withdrawing from the auction, creating a new entrant vacuum that seems likely to leave some of the prime spectrum in major markets such as Ontario, Alberta, and British Columbia unlicensed and the hope for a renewed competitive wireless environment all but dead. Indeed, the marginal competitive gains of the past few years are now at risk and the government's vision of four strong competitors in every market looks like a pipe dream. The big three managed to scare off Verizon, while the federal government's mixed messages on foreign investment appears to have kept everyone else out.

Having made wireless competition a key policy priority - supported by a national advertising campaign and commitments in the Speech from the Throne - Industry Minister James Moore has little choice but to pursue a different strategy. The government had placed its bets on improving the competitive environment organically through foreign investment and new entrants. With that strategy a failure (a government spokesperson claimed the auction will still be positive for consumers but made no reference to improved competition), it is time to focus instead on regulatory solutions. The move toward regulated domestic roaming represents a starting point (and presumably Wind Mobile's best hope given its lack of spectrum), but more will be needed. Removing all foreign investment restrictions, establishing a regulated mobile virtual network operator market, and even considering structural separation are some of the regulatory choices still available.

If the government still believes that a competitive wireless environment remains a crucial economic concern, it cannot simply sit back as the big three carriers solidify their dominance in the upcoming spectrum auction and the prospect of viable competitors steadily disappears. The government should complete the spectrum auction and then move quickly to address the wireless mess with a strategy supported by targeted regulatory reform.
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Is C-13 Needed?: How Canadian Law Already Features Extensive Rules to Combat Cyberbullying

Cyberbullying was in the news last week with Justice Minister Peter MacKay indicating that Bill C-13 could pass by the spring. The reaction to the bill - the government's lawful access/cyberbullying legislation - has generally included criticism over the inclusion of lawful access provisions from Bill C-30 along with assurances that the cyberbullying provisions are important and worthy of support (though experts in the field doubt whether it will stop online taunting). I discuss the dangers associated with Bill C-13 in this interview on TVO's The Agenda.

Comments from Conservative MPs unsurprisingly point to the need to protect children from cyberbullying. For example, Conservative MP John Carmichael told the House of Commons:


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The Trouble With Bill C-13: Why the "Cyberbullying Bill" is About Much More than Cyberbullying

Earlier this week I appeared on TVO's The Agenda with Steve Paikin to discuss Bill C-13.  While Justice Minister Peter MacKay indicated yesterday that he hopes to pass the legislation this spring, the discussion on the show points to the concerns with the bill including how it creates immunity for voluntary disclosure of personal information without court oversight (thereby increasing the likelihood of such disclosures) and establishes a low threshold for warrants involving metadata, while only marginally addressing the legal framework to combat cyberbullying, which is already well developed. The interview is embedded below.
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European Report Says Canadian Privacy Law Should Be Re-Examined Due to Surveillance Activities

The European Parliament's Committee on Civil Liberties, Justice and Home Affairs has issued a detailed draft report on the U.S. surveillance activities and its implications for European fundamental rights. The report loops Canada into the discussion, noting Canada's participation in the "five-eyes" consortium and expressing concern about the implications for trust in the Canadian legal system. The report states:

whereas according to the information revealed and to the findings of the inquiry conducted by the LIBE Committee, the national security agencies of New Zealand and Canada have been involved on a large scale in mass surveillance of electronic communications and have actively cooperated with the US under the so called ‘Five eyes’ programme, and may have exchanged with each other personal data of EU citizens transferred from the EU;

whereas Commission Decisions 2013/651 and 2/2002 of 20 December 2012 have declared the adequate level of protection ensured by the New Zealand and the Canadian Personal Information Protection and Electronic Documents Act; whereas the aforementioned revelations also seriously affect trust in the legal systems of these countries as regards the continuity of protection afforded to EU citizens; whereas the Commission has not examined this aspect.


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