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Michael Geist's Blog

Justice Parliamentary Secretary Links Cable Theft to Terrorist Plots, Cyberbullying

Media coverage of the government's introduction of Bill C-13, the lawful access/cyberbullying bill, quickly focused on the inclusion of provisions that seemingly had little to do with cyberbullying, including terrorism and theft of cable. While the government has tried to justify the omnibus approach on the grounds that it is modernizing investigative powers in the Criminal Code, it is striking that some MPs have claimed that there is an even more direct link.

Bob Dechert, the Parliamentary Secretary to the Minister of Justice, said the following during debate on Bill C-13 in the House of Commons:


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MacKay Still Providing Inaccurate Information on Bill C-13's Voluntary Disclosure Provision

Justice Minister Peter MacKay appeared last week before the Standing Committee on Justice and Human Rights and was asked once again about the inclusion in Bill C-13 of an immunity provision for intermediaries for the voluntary disclosure of personal information. MacKay again suggested that warrants would be required for disclosure, yet this is simply inaccurate. The exchange:


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Why Peter MacKay Is Wrong About Warrantless Access to Personal Information

The debate on Bill C-13 opened yesterday in the House of Commons with opposition MPs calling on the government to split the bill into two (cyberbullying and lawful access) and raising concerns about the voluntary disclosure provision that would give Internet providers complete criminal and civil immunity for voluntary retention and disclosure of subscriber information. When asked about the issue, Justice Minister Peter MacKay said the following:

The provision would clarify that the police officer can lawfully ask - and he points out - that individuals and groups voluntarily preserve data or provide documentation, but only when no prohibition exists against doing so. That is to suggest that organizations would still be bound by the Personal Information Protection and Electronic Documents Act, something known as PIPEDA, which makes it clear that an organization is entitled to voluntarily disclose personal information to the police, without the consent of the person to have the information relayed.

However police have to have lawful authority to do so. They still have to obtain a warrant. They can ask that the information be preserved and temporarily put on hold so that it cannot be deleted, but in order for police to access that information that is frozen, they must still obtain a warrant. There is no warrantless access.

Unfortunately, MacKay is wrong.


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Lawful Access Returns Under the Cover of Cyber-Bullying Bill

In February 2012, then-Public Safety Minister Vic Toews introduced Internet surveillance legislation that sparked widespread criticism from across the political spectrum. The overwhelming negative publicity pressured the government to quickly backtrack by placing Bill C-30 on hold. Earlier this year, then-Justice Minister Rob Nicholson announced that the bill was dead, confirming "we will not be proceeding with Bill C-30 and any attempts that we will continue to have to modernize the Criminal Code will not contain the measures contained in C-30."

My weekly technology law column (Toronto Star version, homepage version) notes that Nicholson's commitment lasted less than a year. Last week, Peter MacKay, the new federal justice minister, unveiled Bill C-13, which is being marketed as an effort to crack down on cyber-bullying. Yet the vast majority of the bill simply brings back many (though not all) lawful access provisions found in Bill C-30.


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Federal Ct Takes CSIS To Task In Case Involving CSEC Requests for Foreign Agency Spying on Canadians

Since the first Snowden revelations earlier this year, there has been much speculation about the use foreign intelligence agencies (such as the NSA) to conduct surveillance on Canadians. While the government is always careful to say that CSEC does not spy on Canadians, many suspect that each of the "five eyes" agencies (the US, UK, Canada, Australia, and New Zealand)  do it on their behalf. Yesterday, a federal court judge confirmed the practice as part of a decision that found CSIS "breached its duty of candour to the Court by not disclosing information that was relevant to the exercise of jurisdiction by the Court and to the determination by the Court that the criteria of investigative necessity and the impracticality of other procedures set out in subsection 21 (2) of the CSIS Act had been satisfied."

The lack of candour appears to arise from the failure to disclose that the CSIS warrants would involve seeking CSEC assistance in requesting foreign interception of Canadian communications:

the Court has determined that the execution of the type of warrants at issue in Canada has been  accompanied by requests made by CSEC, on behalf of CSIS, to foreign agencies (members of the “Five Eyes” alliance), for the interception of the telecommunications of Canadian persons abroad.


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The Privacy Threats in Bill C-13, Part One: Immunity for Personal Info Disclosures Without a Warrant

The introduction of Bill C-13 - the "cyberbullying bill" with extensive lawful access provisions - has generated considerable discussion on its privacy implications. While many have noted that Justice Minister Peter MacKay took less than a year to retreat from the government's commitment that "any attempts that we will continue to have to modernize the Criminal Code will not contain the measures contained in C-30", the question will soon focus on whether the new bill contains any privacy threats in need of reform.

It is certainly true that the government has removed two of the most controversial C-30 provisions by excluding warrantless mandatory disclosure of basic subscriber information and the requirement for telecommunications service providers to build intercept capability within their systems. However, several provisions still featured in the bill are cause for concern. This post focuses on the new safe harbour protections for voluntary disclosure of personal information without a warrant. Posts to follow later this week will examine the lower thresholds for access to metadata and location information.


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Government of Canada Quietly Changes Its Approach to Crown Copyright

In 2010, the federal government implemented important changes to its crown copyright approach. While the law vests full copyright in government works, the government notified the public that it was establishing a non-commercial use licence that gave permission for non-commercial uses without the need for permission. The government stated:

Permission to reproduce Government of Canada works, in part or in whole, and by any means, for personal or public non-commercial purposes, or for cost-recovery purposes, is not required, unless otherwise specified in the material you wish to reproduce.
A reproduction means making a copy of information in the manner that it is originally published - the reproduction must remain as is, and must not contain any alterations whatsoever.
The terms personal and public non-commercial purposes mean a distribution of the reproduced information either for your own purposes only, or for a distribution at large whereby no fees whatsoever will be charged.
The term cost-recovery means charging a fee for the purpose of recovering printing costs and other costs associated with the production of the reproduction.

Up until last week, that remained the approach. As of November 18th, it appears to have changed. First, Publications and Depository Services, the branch within the Public Works and Government Services that handled crown copyright, is no longer doing so. It now provides the following notice:


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Lawful Access is Back: Controversial Bill Returns Under the Guise of Cyber-Bullying Legislation

In February 2012, then-Public Safety Minister Vic Toews introduced Bill C-30, the "Protecting Children From Internet Predators Act". While the government marketed the bill as an attempt to protect children from Internet predators (and infamously accused opponents of siding with child pornographers), it soon became readily apparent that the bill was really about adopting a wide range of measures that increased police powers, stripped away privacy rights, and increased Internet surveillance. The overwhelming negative publicity led the government to put the bill on hold. Earlier this year, then-Justice Minister Rob Nicholson announced that Bill C-30 was dead:

We will not be proceeding with Bill C-30 and any attempts that we will continue to have to modernize the Criminal Code will not contain the measures contained in C-30, including the warrantless mandatory disclosure of basic subscriber information or the requirement for telecommunications service providers to build intercept capability within their systems. We've listened to the concerns of Canadians who have been very clear on this and responding to that.

Nicholson's commitment lasted less than a year (the same was true on lawful access in 2007, when Stockwell Day promised no warrantless access to subscriber information only to have Peter Van Loan backtrack a year and a half later). Yesterday, Peter MacKay, the new Justice Minister, unveiled Bill C-13, the Protecting Canadians from Online Crime Act. The similarly-named bill is now marketed as an effort to crack-down cyber-bullying, yet the vast majority of the bill simply brings back many (though not all) lawful access provisions.


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The TPP IP Chapter Leaks: U.S. Wants New Regulations for Country-Code Domain Names

My series of posts on the leak of the Trans Pacific Partnership intellectual property chapter has highlighted Canada's opposition to many U.S. proposals, U.S. demands for Internet provider liability that could lead to subscriber termination, content blocking, and ISP monitoring, copyright term extension, anti-counterfeiting provisions that are inconsistent with Bill C-8, and potential conflict on geographical indications between the TPP and CETA. This post discusses Article QQ.C.12 on domain names. The domain name provision contains two provisions.  The first requires each country-code top-level domain to maintain a dispute resolution policy and a WHOIS database. The provision enjoys broad support (presumably most, if not all, countries have a policy similar to the ICANN UDRP), though the U.S. has some concern about the ability to limit WHOIS information based on privacy laws.

The second provision has generated a clear split within the TPP countries as it seems to require countries to create legal remedies to address domain name activity. The proposed provision, which is supported by the U.S., Japan, Mexico, and Vietnam, states:

Each party shall provide adequate and effective remedies against the registration trafficking, or use in any ccTLD, with bad faith intent to profit, of a domain name that is identical or confusingly similar to a trademark.

Canada, Australia, New Zealand, Peru, Singapore, Chile, Malaysia, and Brunei are all opposed to the provision. Not only is the provision confusingly worded, but it suggests that governments would be required to adopt legislative solutions to address domain name disputes (if it is merely about transferring domains that are the subject of a bad faith registration, the first provision would address that concern). The Canadian government has resisted legislative intervention into the domain name system, yet this provision might require it to wade into the issue with legal reforms.

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Leaked TPP Text Confirms Countries Had Plenty to Hide

The Trans Pacific Partnership Agreement, a massive proposed trade deal that includes Canada, the United States, Australia, Mexico, Malaysia, Singapore, New Zealand, Vietnam, Japan, Peru, and Chile, has long been the target of criticism owing to the veil of secrecy associated with the draft text. While negotiations have been ongoing for several years, participating countries have steadfastly refused to release the working text that addresses everything from agriculture to copyright, claiming that trade talks must be conducted behind closed doors.

Last week, Wikileaks released a leaked version of the intellectual property chapter, which confirmed that the U.S. hopes to use the agreement to export extreme intellectual property provisions that are out-of-step with international norms. Indeed, the 95-page document validates fears that the real reason for the TPP secrecy is that the negotiating countries have plenty to hide.

My weekly technology law column (Toronto Star version, homepage version) notes that while many of the leaked proposals are cause for concern, the good news is that Canada often finds itself opposing some of the most draconian demands with negotiators promoting Canadian law as a suitable alternative.


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