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Michael Geist's Blog

Why CSEC and CSIS Should the Subject of an Independent Investigation

Months of surveillance-related leaks from U.S. whistleblower Edward Snowden have fuelled an international debate over privacy, spying, and Internet surveillance. The Canadian-related leaks - including disclosures regarding spying on the Brazilian government and the facilitation of spying at the G8 and G20 meetings hosted in Toronto in 2010 - have certainly inspired some domestic discussion. Ironically, the most important surveillance development did not involve Snowden at all.

My weekly technology column (Toronto Star version, homepage version) notes that late last year, Justice Richard Mosley, a federal court judge, issued a stinging rebuke to Canada's intelligence agencies (CSEC and CSIS) and the Justice Department, ruling that they misled the court when they applied for warrants to permit the interception of electronic communications. While the government has steadfastly defended its surveillance activities by maintaining that it operates within the law, Justice Mosley, a former official with the Justice Department who was involved with the creation of the Anti-Terrorism Act, found a particularly troubling example where this was not the case.


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Technology and the Law in 2014: 14 Questions in Need of Answers

The coming year is likely to be a very significant one for law and technology. As the year unfolds, my recent law and technology column (Toronto Star version, homepage version) lists 14 questions (along with possible answers) that will go a long way to determining the path of Canadian technology law policy.

1.    Will the government finally unveil a national digital strategy?

The long-promised national digital strategy could become a reality in 2014 after years of inaction. Industry Minister James Moore is on the verge of clearing out the lingering policy issues he inherited and may be ready to set his own path on a digital strategy.

2.    Will the wireless spectrum auction be judged a failure?

The contentious wireless spectrum auction should take place early in 2014, but with few, if any, new competitors, the auction seems destined to do little more than entrench the status quo.


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The Letters of the Law: The Year in Tech Law and Policy

With Edward Snowden and the great wireless war of 2013 leading the way, law and technology issues garnered headlines all year long. My weekly technology law column (Toronto Star version, homepage version) takes a look back at 2013 from A to Z:

A is for Americangirl.ca, a Canadian domain name that was the subject of two dispute claims in 2013. The popular doll company relied on a quirk in the policy that permitted a follow-up complaint after its first case was rejected.

B is for Bell TV, which a federal court ordered to pay $20,000 for violating the privacy of a customer. The case arose when Bell TV surreptitiously obtained permission to run a credit check by including it as a term in its rental agreement without telling the customer.

C is for the Competition Bureau of Canada, which launched an investigation into alleged anti-competitive practices by search giant Google.


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Supreme Court of Canada Emphasizes Balance in Determining Copyright Scope of Protection

The Supreme Court of Canada issued another copyright decision this morning, ruling in favour of Claude Robinson in a longstanding copyright infringement battle over a children's television series. Robinson was vindicated in the decision with an award of millions of dollars. The case is an important one for determining whether a substantial part of a work has been copied and for how to assess copyright damages. The case also notably emphasizes the importance of copyright balance, this time within the context of the scope of protection afforded by the Copyright Act. In assessing the scope of the protection, the court states:

"The need to strike an appropriate balance between giving protection to the skill and judgment exercised by authors in the expression of their ideas, on the one hand, and leaving ideas and elements from the public domain free for all to draw upon, on the other, forms the background against which the arguments of the parties must be considered."

The Court's obvious awareness of how balance touches on all aspects of copyright analysis - whether user rights or scope of protection - continues to provide the foundation for copyright law in Canada.
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Copyright Collectives Gone Mad: How the ERCC Spent Dollars to Earn Pennies

Howard Knopf points to an interesting Copyright Board of Canada decision that provides a instructive lesson in how copyright collectives fail. At issue is the Educational Rights Collective Canada, a collective formed in 1998 to collect royalties for educational copying of broadcast programs in classrooms. The ERCC, which includes the CBC as a founding member, asks the Copyright Board to effectively put an end to its tariff as it admits that it has never distributed any money to rights holders and is hundreds of thousands of dollars in debt.

How did it come to this? The ERCC acknowledges that royalties for its tariff have never exceeded $10,000 per year, however, the collective's debts stand at $830,000. There is little cash on hand and its creditors (which presumably include the CBC) will receive less than 5 percent of what they are owed. The debt was largely accumulated in trying to create its tariff in the first place. Yet it is difficult to understand how broadcast organizations ever thought this was a good idea. Even before the advent of Internet-based video, the law permitted schools to copy news and news programs for playback in the school for one year without payment. Today, the tariff is a non-starter since Bill C-11 significantly expanded the rights of educational institutions.

The decision to wind-up the ERCC reflects both changing laws and a tariff that has always offered very limited value. While some collectives are insistent that changing laws should have little impact on their business, the reality is that new technologies, methods of distribution, and user rights will invariably have an impact on copyright collectives and the value associated with their licences. The ERCC was simply a bad idea in which millions was spent by both sides to decide on royalties worth a fraction of expense, but all must recognize that the shifting environment requires a recalibration of the value of certain licences and a re-assessment of the use of the Copyright Board process.
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Govt Promises Domestic Wireless Roaming Regulation: Can Wholesale Price Regulation Be Far Behind?

Industry Minister James Moore yesterday took another step toward improving the state of wireless competition in Canada by announcing plans to cap wholesale domestic roaming fees at the same rates the companies charge their own customers. The cost of domestic roaming has been a persistent concern for new entrants and regional wireless carriers, who argue that the national carriers increase wholesale prices for roaming that render the smaller players less competitive. The new government reforms will put an end to those concerns. Moreover, it plans to create tough new penalties for companies that violate the wireless code or other regulatory requirements, a move that may increase compliance rates.

While the usual critics will moan that the latest changes are indicative of a wireless policy with ever-changing rules, the reality is that the government has made a clear commitment toward addressing the state of wireless competition in Canada. Some of its hopes may have been thwarted - the entry of Verizon tops that list - but identifying and addressing competitive barriers should be a continuing process with regular reforms as needs arise.


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The Case For Cancelling Canada's Simultaneous Substitution Rules

The government's promise to implement a "pick-and-pay" television model that would allow consumers to subscribe to individual channels from cable and satellite providers garnered significant attention this fall. The approach was promoted as a pro-consumer reform that better reflects expectations that the public controls when, where, and on what device they watch broadcast programming.

Consistent with the government's policy commitment, the Canadian Radio-television and Telecommunications Commission will soon report on the regulatory implications of such a reform. Changing cable packages may only be the beginning, however, as CRTC Chair Jean-Pierre Blais has stated that the regulator needs to "develop a regulatory framework that will be flexible enough to be adapted to the new technological reality."

My weekly technology law column (homepage version, Toronto Star version) notes the unbundling of television packages represents the broadcast distribution side of the changing environment, but the flip side of the coin involves the need for changes to Canadian broadcast policy. If Industry Minister James Moore and the CRTC are prepared to shake up the way Canadians access television, they should also consider changing longstanding and increasingly outdated broadcast rules, starting with the gradual elimination of "simultaneous substitution" policies.


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What Will Canada's Anti-Spam Law Mean for Users and Businesses?

Long before sites such as Youtube and Twitter were even created, the Canadian government established a national task force to examine concerns associated with spam and spyware. The task force completed its work in May 2005, unanimously recommending that the government introduce anti-spam legislation (I was a member of the task force). Four years later, then-Industry Minister Tony Clement tabled an anti-spam law, which underwent extensive committee review before receiving royal assent in December 2010.

My technology law column last week (Toronto Star version, homepage version) notes that while most expected the government to quickly bring the new law into force, the regulation-making process became bogged down by an intense lobbying effort designed to sow fear, doubt, and uncertainty about the legislation. Business groups relied upon implausible scenarios to argue that Canada would be placed at an economic disadvantage, despite the fact that government officials were able to identify over 100 other countries that have similar anti-spam regimes. The lobbying was a partial success, however, as the regulations went through two drafts and three more years of delay.

Almost a decade after Canada started down the path toward anti-spam legislation, Industry Minister James Moore announced earlier this month that the regulations are now final and the law will begin to take effect next year. There will be still yet more implementation delays - the anti-spam rules start on July 1, 2014, safeguards on software installations begin on January 15, 2015, and a private right of action that facilitates lawsuits to combat spam will be delayed until July 1, 2017 - but it appears that Canada will finally get an operational anti-spam law.


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Toronto and UWO Confirm the Obvious: Access Copyright Licence Provides Little Value for Education

The University of Toronto and the University of Western Ontario, the two Ontario universities that were quick to sign a copyright collective licence with Access Copyright before the conclusion of Bill C-11 and the Supreme Court of Canada's fair dealing decisions, have announced that starting next year they will no longer operate under a licence from the copyright collective. The moves come after many other prominent Canadian universities operated without an Access Copyright licence, relying instead the millions of dollars being spent on site licences, open access materials, fair dealing, and transactional licensing for specific works that are otherwise unavailable or whose use would not constitute fair dealing.

The fair dealing aspect of the strategy has attracted considerable criticism from Access Copyright and its allies, who implausibly argue that despite multiple Supreme Court of Canada decisions and an expansion of fair dealing by the Canadian government, that there is still much uncertainty about its application. The reality is that a fair dealing consensus has emerged in Canada within the education community that is relatively conservative in scope. For example, the Canadian guidelines speak to the use of 10 percent of a work as fair dealing. By comparison, a recent settlement in Israel between universities and a major publisher identifies 20 percent of a work as fair.

While Access Copyright argued immediately after its release that the 2012 Supreme Court decision left "copyright licensing in the education sector alive and well", it was obvious that this was just not the case. In fact, Access Copyright warned the Supreme Court that:



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The Privacy Threats in Bill C-13, Part Two: The Low Threshold for Metadata

My first post on the privacy threats in Bill C-13 focused on the voluntary disclosure of personal information and the complete civil and criminal immunity granted to intermediaries such as ISPs and telecom companies that provide such disclosures. This post focuses on the low threshold the bill establishes for a new "transmission data" warrant and explains why this represents a serious privacy risk.

The bill defines transmission data as data that:

(a) relates to the telecommunication functions of dialling, routing, addressing or signalling;
(b) is transmitted to identify, activate or configure a device, including a computer program as defined in subsection 342.1(2), in order to establish or maintain access to a telecommunication service for the purpose of enabling a communication, or is generated during the creation, transmission or reception of a communication and identifies or purports 
to identify the type, direction, date, time, duration, size, origin, destination or termination of the communication; 
(c) does not reveal the substance, meaning or purpose of the communication.

The bill creates a new warrant that allows a judge to order the disclosure of transmission data where there are reasonable grounds to suspect that an offence has been or will be committed, the identification of a device or person involved in the transmission will assist in an investigation, or will help identify a person. The government relies on the fact that this is a warrant with court oversight to support the claim that Canadians should not be concerned by this provision. Yet the reality is that there is reason for concern as the implications of treating metadata as having a low privacy value is enormously troubling.


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