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Michael Geist's Blog

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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The Trans Pacific Partnership and the Fight Over a Cultural Exception

This week's leak of country-by-country positions on a Trans Pacific Partnership included a notable reference to the inclusion of a cultural exception. Canada stands with a slight majority in seeking a cultural exception that would presumably exclude the cultural industries (broadcast, audio-visual, music, books, etc.) from the ambit of key TPP provisions such as foreign investment restrictions or other legislated forms of cultural protections.  Other supporters of a cultural exception include Australia, New Zealand, Chile, Brunei, Malaysia, and Vietnam. Opponents include the U.S., Peru, Mexico, Singapore, and Japan.

The emergence of the cultural exception issue is interesting because U.S. lobby groups were specifically concerned with the prospect that Canada would pursue an exception if admitted into the TPP negotiations.  For example, the IIPA (which represents the major music, movie, and software lobby groups) stated the following in January 2012 with respect to the possible admission of Canada into the TPP:


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The TPP and Privacy: What Are the Implications of the E-commerce Chapter?

While much of the attention on the Trans Pacific Partnership has focused on the intellectual property chapter, the e-commerce chapter raises potentially significant privacy implications. The details of the e-commerce chapter remain unknown - the chapter has not been leaked as the latest Singapore meeting wrapped up without a deal - but the leaked country-by-country position paper suggests that the participants are fairly close to consensus on at least two privacy related provisions.


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The U.S. Stands Alone: How the U.S. Is Increasingly Isolated on Intellectual Property Policy

Each April, the U.S. Trade Representative releases the Special 301 report which represents its take on the countries with inadequate intellectual property laws.  Inclusion on the report is often framed as an embarrassment as the U.S. seeks to paint those countries as out-of-step with international norms (Canadian officials have rightly dismissed the report as a lobbying document without substantive merit).  The latest leaks of country positions on the Trans Pacific Partnership highlight that the opposite is true. It is increasingly the U.S. that is out-of-step with international norms as it seeks to export laws that are widely rejected by most other countries. From its demands for the criminalization of copyright (even in cases of inadvertent infringement) to the prospect of termination of Internet access over allegations of violations, the U.S. approach finds little support among most of its allies. While Canada opposes the U.S. on virtually all remaining IP issues in the TPP, the U.S. is often isolated on each issue, sometimes entirely alone or occasionally supported by one or two other countries.


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Canada Opposed To U.S. Positions On Dozens of Trans Pacific Partnership Issues

Today's leak of country-by-country positions  on the Trans Pacific Partnership reveals the strong isolation of the U.S. on many intellectual property issues and the wide ranging Canadian opposition to many U.S. proposals. With International Trade Minister Ed Fast heading to Singapore for a ministerial round of negotiations, Canada is apparently far apart from the U.S. on many key issues.  The areas of disagreement run throughout the IP chapter and include positions on copyright term, digital locks, criminalization of copyright, parallel imports, patents, trademark scope, pharmaceutical protection, and geographical indications. Moreover, there is a notable disagreement on a cultural exception, which Canada wants but the U.S. does not.

A look at the areas of disagreement from the Huffington Post leak:


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Senate Heading Toward Investigation Into Bell's Privacy Practices

Conservative Senator Leo Housakos this week raised the possibility of a hearing into Bell's privacy practices in light of recent disclosures involving collection and use of data for targeted advertising purposes. Housakos gave notice of a motion for a hearing by the Standing Senate Committee on Transport and Communications involving Bell and the Privacy Commissioner of Canada.

Housakos raised concerns about Bell's practices in the Senate last month, noting:

Therefore, the fundamental question is: What should we permit as a society? Where do we draw the line between what is private information and what can reasonably be shared with the general public as well as advertisers? We, as a society, must address these questions before media companies render it a moot point.
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Liberals Demand More Draconian IP Provisions: Propose Adding New Statutory Damages to Bill C-8

Liberal MP Judy Sgro continued her efforts yesterday to add lobbyist-inspired provisions to Bill C-8, the anti-counterfeiting legislation. Having already proposed removing the personal exception for travelers (leading to increased border searches) and a "simplified procedure" for the seizure of goodsthat would remove court oversight in the destruction of goods in a greater number of cases, Sgro proposed an amendment to add statutory damages with a mandatory minimum of $1,000 and a maximum of $100,000 in liability. The provision would limit the discretion of judges to order damages based on the evidence.

The statutory damages provision was another ask for intellectual property lobby groups. As I noted in my appearance before the committee:


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Government Finalizes Anti-Spam Legislation After Years of Delay

On December 15, 2010, the Canadian government (then described as the Harper Government) celebrated the granting of royal assent for the Fighting Internet and Wireless Spam Act, Canada's long overdue anti-spam legislation. The last step for the bill to take effect was to finalize the associated regulations. Passing those regulations ultimately proved more difficult than passing the law itself, as an onslaught of lobby groups used the regulatory process to try to delay, dilute, and ultimately kill the anti-spam law.

Nearly three years after the legislation received royal assent, Industry Minister James Moore today announced that the regulations are now final and the law will begin to take effect next year (the spam provisions take effect on July 1, 2014; the software provisions start on January 15, 2015). The finalized regulations involve further concessions to the lobby groups opposed to the legislation as they create a new exception for third party referrals (permitting a single referral without consent) and largely exempt charities from many of the new rules. The private right of action that would facilitate lawsuits to combat spam will be delayed until July 1, 2017. These issues were all extensively discussed and debated during the legislative process and there was no need for further changes. 

While those changes are a disappointment, the far bigger story is that Canada finally has an anti-spam law grounded in an "opt-in" approach that requires marketers to obtain customer consent before sending commercial electronic messages.


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Liberals Propose Increased Border Searches By Eliminating Anti-Counterfeiting Personal Exception

The Standing Committee on Industry, Science and Technology held its clause-by-clause review of Bill C-8, the anti-counterfeiting bill yesterday. I appeared before the committee last month to express concerns about some lobbyist demands for reforms, including removing the exception for personal goods of travelers, the inclusion of statutory damages for trademark infringement, and targeting in-transit shipments.

While the committee did not complete the review of the bill - it will resume on Wednesday - the surprise of the day involved Liberal MP Judy Sgro proposing that the government remove the exception for personal travelers. Given that personal use exceptions are even included in the Anti-Counterfeiting Trade Agreement, it is shocking to see any party proposing their removal, which would result in longer delays at the border and increased searches of individual travelers. The proposal failed since it was rejected by both the Conservatives and NDP, with the NDP noting that "this was one of the important provisions that brought some balance to the bill."


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The Federal Government's Complete E-Government Failure

Ten years ago, Canada held the distinction of being the top ranked country in the world for the breadth and sophistication of its electronic government services. Citing the Canadian government's integrated, strategic approach, annual assessments by Accenture found that more important services were offered online in Canada than anywhere else.

Fast forward a decade and Canada's e-government rankings have steadily declined, a victim of astonishing neglect by the current Conservative government. Last week, the auditor general issued a scathing report on the state of e-government in Canada, noting the lost opportunities for reduced expenses and greater efficiencies as well as the complete absence of strategic vision.

My weekly technology law column (Toronto Star version, homepage version) notes the successful implementation of e-government initiatives should be a win-win scenario. For Canadian businesses and citizens, it offers convenience and round-the-clock access.  For government, the shift online offers the promise of significant cost savings. Indeed, rather than simply eliminating programs, the government could focus on cutting costs by emphasizing lower cost electronic delivery of its services.


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