Reports over the past week have indicated that the government plans
to unveil a "consumer first" agenda for its upcoming Speech from the
Throne. The speech, which will set out the federal legislative and
policy agenda for the next two years, is widely viewed as the
unofficial start of the 2015 election campaign.
My weekly technology law column (Toronto
Star version, homepage version) notes there is little doubt
that the battle over wireless pricing, which hit a fever pitch over
the summer in a very public fight between Industry Minister James
Moore and the incumbent telecom companies, will figure prominently
in any consumer agenda. The government is convinced that it has a
winner on its hands - consumer frustration with Canada’s high
wireless prices suggests that they’re right - and will continue to
emphasize policies geared toward increasing competition.
Yet a consumer first agenda should involve more than just taking on
the telcos on spectrum (or the airlines over their pricing
practices). A digital consumer first agenda should prioritize
several other issues that have similar potential to strike a chord
with Canadians across the country. At the heart of those
digital issues are two ongoing consumer concerns: pricing and
Read More ...
On the pricing front, monthly wireless bills are only part of the
high price Canadians pay for communications services. The Canadian
Radio-television and Telecommunications Commission has embarked on a
review of wireless roaming fees, which studies have found rank among
the highest in the world.
Broadband Internet services would also benefit from a more
aggressive, consumer-first regulatory approach. The government
previously objected to usage-based billing schemes, but its emphasis
on facilitating competition through independent providers has
encountered resistance in recent months. For example, some customers
of TekSavvy, a large Ontario-based independent ISP, have been stuck
for days without service as Rogers has been slow to address problems
that arise from its network.
Inflexible and costly television packages should also come under
closer scrutiny. The history of broadcast distribution through cable
and satellite providers is one in which consumer interests were
largely ignored. A consumer first approach would increase choice by
opening the market to greater competition (eliminating foreign
investment restrictions would be a start), mandating the
availability of pick-and-pay services so that consumers could shift
away from large bundles of channels they don’t want, and requiring
providers to offer broadband Internet services without television
packages, so that consumers can "cut the cable cord" if they so
Lower wireless, Internet, and cable bills would be a welcome change,
but Canadians also need better digital protections against online
harms. The long-delayed anti-spam law, which provides safeguards
against spam and spyware, should be brought into effect by
finalizing the necessary regulations. The law has been delayed by
intense corporate lobbying, however, it enjoys strong support from
consumer groups and was passed by Parliament in 2010.
Consumers similarly require better privacy protections since
Canadian private sector privacy legislation is now woefully
outdated. Reforms arising out of hearings on the law that date back
to 2006 died with the prorogation earlier this month, leaving
Canadian consumers with a law that no longer meets international
standards. Putting consumers first should mean that businesses are
obligated to disclose security breaches and face tough penalties for
violations of the law.
Canadian consumers would also benefit from protections against
misuse of intellectual property rights. That includes safeguards
against patent trolls that threaten small businesses and increase
consumer costs as well as provisions to ensure that thousands of
Canadians do not get caught up in questionable lawsuits over
copyright claims that seem primarily designed to pressure them into
A consumer first agenda is long overdue in the digital environment,
where the interests of individual Canadians have often been
forgotten. The next Speech from the Throne offers the chance to
change course by promoting policies that result in fairer pricing
and stronger online protections.
TagsShareWednesday September 25, 2013
Industry Canada released the names of the bidders
for its forthcoming spectrum auction yesterday with the disappointing
news that no major new entrants will be using the auction to enter the
Canadian market. That is rightly viewed as a big win
for the incumbents, who should have little trouble acquiring the
spectrum they want in the upcoming auction and will not face any new
competition from deep-pocketed global wireless players. Instead, despite
the persistent efforts of the federal government to convince new
competitors to enter the market, the Big 3 will continue to dominate
Canadian wireless services for the foreseeable future. With prices high
by global standards and mobile broadband penetration lagging compared to
other countries (an ITU study
released over the weekend ranked Canada 32nd worldwide for mobile
broadband penetration), consumers are the immediate and obvious loser
for the moment.
Yet the incumbent victory did not come easily, coming at the cost of a
scorched-earth public relations war with the federal government that the
incumbents are already trying to downplay.
However, having failed to address market concerns through new
competitors, it may now fall to the government to shake things up
through increased regulation. There are no shortage of options, with two
big steps (the consumer wireless code that limits contract length and
potential CRTC regulation of wireless roaming pricing) already underway.
After yesterday's release, Industry Minister Moore stated
that "in addition to this auction, our Government will continue to
aggressively pursue policies that ensure consumer interests are at the
core of all Government decisions."
What policies might Minister Moore have in mind?
Read More ...
TagsShareTuesday September 24, 2013
There should be little doubt that the mere threat of regulation can
lead to lower prices and market reforms (witness Bell's decision to
slash U.S. roaming prices in half weeks after the CRTC roaming
initiative). In fact, just as the incumbents sought to delay
the spectrum auction
when it appeared that Verizon was going
to enter the market, we can expect calls to delay any further policy
action until there are further studies or opportunities to take stock
of recent developments.
In this case, the government need not hand the incumbents another
victory by delaying much-needed policy reforms. Full pricing
regulation is rightly viewed as a last resort, yet there are other
possibilities. For starters, the elimination of foreign investment
restrictions in both the telecom and broadcast distribution sectors
as well as tougher tower sharing requirements and domestic roaming
rules to make it easier for smaller players to expand their
Another mechanism to generate more competition would be to create a
regulated mobile virtual network operator market, a vehicle that
explored using as part of a potential Canadian entry. MVNOs
typically do not own spectrum or network infrastructure. Instead,
they purchase network access at wholesale rates from existing
operators and offer it to consumers with their own retail pricing.
MVNOs such as Canadian-owned Ting have become a hit in the U.S. but
are not even available in Canada. By setting the wholesale price,
the government could use regulation to create a new batch of MVNO
competitors in Canada, much as it has tried to do with Internet
The other big alternative step is full structural separation. Peter
Nowak has been advocating
this approach for some time, arguing for splitting the incumbents
into companies that manage phone and Internet networks and companies
that offer services to customers. It is unquestionably a major
market change, but with the Canadian wireless environment seemingly
stuck in neutral, the government would receive well-deserved
plaudits for taking bold action to address the ongoing
The Globe and Mail reports
that Rogers Communications is trying to distance itself from this
summer's spectrum auction/Verizon battle. Edward Rogers apparently told
an investor conference:
"It's been like watching a bit of a soap opera. Rogers has tried to
be not as engaged in the dramatics of it and tried, as best we can, [to]
offer more of a practical alternative for government, for industry."
Uh huh. So Vice-Chair Phil Lind claiming
in July that "everything that they could possibly ask for they're doing
for Verizon" was staying out of the fray? Or CEO Nadir Mohamed warning
in August that the government's approach could result in slower
wireless speeds was offering a practical alternative? Sending a company-wide pre-written email urging employees to write to the government and registering 13 board members to lobby the government was not engaged? Running advertisements about employees losing their jobs in Moncton wasn't dramatic? Arguing
that a fourth carrier won't work in Canada was another practical
alternative? The record speaks for itself and no amount of spin will
change the fact that Rogers, Bell, and Telus will have to live with the
consequences of behaving like "raving lunatics" (in the words of Wind Mobile CEO Anthony Lacavera).TagsShareThursday September 19, 2013
As the tidal wave of disclosures on widespread U.S. surveillance
continues - there is now little doubt that the U.S. government has spent
billions creating a surveillance infrastructure that covers virtually
all Internet and wireless communications - the question of Canada’s role
in these initiatives remains largely shrouded in secrecy.
The Canadian government has said little, but numerous reports suggest
that agencies such as the Communications Security Establishment Canada
(the CSE is the Canadian counterpart to the U.S. National Security
Agency) are engaged in similar kinds of surveillance. This includes
capturing metadata of Internet and wireless communications and working
actively with foreign intelligence agencies to swap information obtained
through the data mining of Internet-based surveillance.
My weekly technology law column (Toronto Star version, homepage version) notes the active connection between Canadian and U.S. officials moved to the
forefront last week with reports that Canadian officials may have played
a starring role in facilitating U.S. efforts to create a "backdoor" to
widely used encryption standards. That initiative has been described as
"undermining the very fabric of the Internet."
Read More ...
TagsShareTuesday September 17, 2013
Encryption standards play a crucial role in Internet security by
allowing parties to communicate in a secure manner over open
networks. The technologies are used for electronic banking, medical
records, e-commerce transactions, and online communications.
Earlier this month, new
indicated that the NSA had secretly managed to defeat
Internet privacy and security by cracking widely used encryption
technologies. The revelations sent shock waves throughout the
Internet security community and raised doubts about the security of
millions of transactions that take place online.
While the NSA reportedly uses several techniques to break
encryption, including deploying super-computers and working with
technology companies to weaken the security embedded within their
products, the most important factor may have been the creation of
several international encryption standards that made it easier for
the agency to crack encrypted messages.
by the New York Times, the encryption standards involve the use of
mathematical algorithms to generate random numbers. Those randomly
generated numbers play an important role in creating encrypted
messages by making it virtually impossible to crack the code. Yet
behind-the-scenes, it turns out the NSA wrote the standard, granting
itself the capability to break the resulting encryption.
The Canadian role in these developments is linked to how the NSA
managed to gain control over the standard setting process. In 2006,
the CSE ran the global standard setting process for the
International Organization for Standardization. The NSA convinced
the CSE to allow it to re-write an earlier draft and ultimately
become the sole editor of the standard.
The CSE claims that its relationship with the NSA during the
standard setting process was merely designed to support the Canadian
government’s effort to secure its technological infrastructure.
However, it is now clear that Canada worked with the U.S. to ensure
that the backdoor was inserted into the encryption standard and that
it may have gained access to decryption information in the process.
In fact, Canada’s work with the U.S. on surveillance issues has even
included financial compensation. Bill Robinson, who actively tracks
CSE activities, recently reported
"that a specific account exists within the government's Financial
Reporting Accounts to record payments that CSE receives from foreign
indicate that the account "is used by Communications
Security Establishment to record funds received from foreign
governments, to cover expenditures to be made on their behalf, in
accordance with the provisions of agreements with the Government of
In other words, Canada may not only have played a key role in
facilitating one of the most significant incursions into the
Internet privacy, but it may even have been paid for its work.
UBC President Stephen Toope has written an important letter responding to criticism
from the Writers' Union of Canada over his university's reliance on
fair dealing. Consistent with many universities across the country, UBC
has moved away from the Access Copyright licence, focusing instead on a
combination of fair dealing, open access, and site licences. The Toope
letter notes how much the university community still pays for copyright
materials and how little course pack sales are in relationship to
UBC pays in the neighbourhood of $25 million to publishers and
authors every year. In fiscal 2011/12, UBC spent approximately $2
million on book acquisitions, $2 million on print serials, and $10
million on digitally licensed subscriptions for students and faculty to
access through its library system. UBC also sold approximately $14
million of books directly to students and faculty (for which UBC paid
publishers about $10 million). In the same period, total course pack
sales were about $1 million, less than 4% of the total spent on learning
materials. Responsive to the needs of today's students, UBC's faculty
members are increasingly utilizing online modes of content delivery,
which means that course pack production volumes will form an even
smaller percentage over time.
Read More ...
TagsShareMonday September 16, 2013
The declining economic importance of course pack sales is important,
given that economic impact is one of the six fair dealing factors.
UBC has been a national leader on the intersection between copyright
and educational use and the Toope letter further confirms that the
university's policies are well-considered and fall comfortably
within the law. If the issue is of interest, a reminder that
on October 4, 2013, the University of Ottawa will host a free
on copyright in Canada. Register here
Copyright Pentalogy: How the Supreme Court of Canada Shook the
Foundations of Canadian Copyright Law.
Earlier this week, I joined Jesse Brown for an online discussion on the
Trans Pacific Partnership. The event, which was hosted by Canadian
Journalists for Free Expression, focused on the free speech implications
from the deal, particularly in light of the copyright and privacy
provisions. Moreover, we spent some time talking about the secrecy
associated with the talks. The full transcript can be found here.TagsShareFriday September 13, 2013
For the past two years, I have been describing
the government's long-missing digital economy strategy as the Penske
File, a Seinfeld reference to a non-existent work project. The
government's Seinfeldian approach to digital policies continued
yesterday, with Industry Minister James Moore hosting a Festivus-like
event on Canada's anti-spam legislation. The anti-spam law was passed in
2010, but intense lobbying has delayed approval of the final
regulations that are needed to bring the law into effect.
The by-invitation roundtable featured most of the business associations that have
criticized the legislation along with several consumer/public interest
representatives. Consistent with the Seinfeld episode on Festivus,
the 90-minute event opened with the airing of grievances, providing the
critics with an opportunity to deliver their concerns directly to the
Minister. The consumer and public interest representatives spoke in
favour of the legislation and of the need for the government to move
quickly to finalize the regulations. While the government's plans remain
to be seen, Moore is clearly engaged on the issue and, given that the
law was passed years ago, will hopefully demonstrate a feat of strength by
bringing it into effect.
A draft of my comments (which were changed slightly in delivery) are posted below.
Read More ...
Opening Remarks, Spam Roundtable (September 10, 2013)
I appreciate the opportunity to participate in this roundtable.
I'm a law professor at the University of Ottawa and I was a member
of the National Task Force on Spam that in 2005 unanimously
recommended that the government introduce anti-spam
TagsShareWednesday September 11, 2013
I'd like to open with four quick points.
First, I'd like to address the imbalance at today's roundtable. I
don't criticize the fact that the critics far outnumber the
supporters today since the squeaky wheel invariably gets the
attention. As we saw this summer on the wireless file, Canadian
business groups can be very good at generating attention when they
oppose government policy.
Rather, I think it is important to recognize that there are many
Canadians - both individuals and businesses - that support this
legislation. They are the thousands of Canadians who
participated in the work of the anti-spam task force, who appeared
before the Industry Committee to speak in support of the anti-spam
bill once introduced, and who referenced the need to bring the
anti-spam law into effect as part of their comments in the digital
economy strategy consultation several years ago.
I think many Canadians reasonably thought that passing this
legislation in 2010 was largely the end of their civic
participation in this policy issue. The bill was extensively
debated, amended, and ultimately passed by Parliament. There
should no room for debate on whether the legislation should be
brought into force. The only question should involve the
regulations associated with the legislation.
Second, I want to emphasize that spam and spyware remain a serious
problem in need of a legislative solution. Law alone won't
solve the problem, but failure to act legislatively leaves Canada
at risk of becoming a spam haven and Canadians without recourse to
address harmful online activities.
There are improved filtering solutions today, yet the problems
with spam remain. Last night, I checked my Gmail spam
box. As is the case most days, there was several legitimate
business messages that I've opted for that were sent to spam, one
important personal message incorrectly identified as spam, and
several messages from email groups that I participate in. The
daily misidentification of spam by aggressive filters means that
business messages often don't get through and the reliability of
email is undermined. That hurts both business and consumers.
Third, there is a sense of déjà vu here. In
preparing for this meeting, I came across the following comments:
"especially from the perspective of small business, there's a bit
of a fear of the unknown here"
"It has many more cost implications. There are some alarm bells
going off and people are saying, "Whoa - let's think about this
for a moment."
"It is so easy for companies to take their business someplace
else, and we are constantly threatened by this. Literally, if you
make too many regulations and add to the costs, it is very simple
to house sites in the United States, Bermuda, or someplace else."
The first two comments come from the Canadian
Chamber of Commerce and the third
from ITAC. But they aren't about CASL. They are
comments from 1999 about PIPEDA. The knee-jerk criticism of
privacy legislation is not only short-sighted, but also very old
and ultimately wrong.
Fourth, many of the concerns expressed with respect to this
legislation are greatly exaggerated. Indeed, the claims make this
summer's attempt to link spectrum with Canadian water resources
seem positively reasonable by comparison. If you believe the
criticism, the legislation will place
lemonade stands at risk, create onerous obligations
not found elsewhere, and create massive new costs for Canadian
Yet the reality is that most of the criticism does not stand up to
scrutiny. The legislation starts with a simple proposition -
obtain customer consent and you can do pretty much whatever you
like. Given the delays, Canadian business will have nearly
ten years from its first introduction to ask one time for
permission. With that permission in hand, the law does not create
serious barriers to electronic marketing. Beyond the basic consent
requirements, there are a host of
exceptions - for personal relationships,
business-to-business, and many others. A reasonable reading
of these exceptions - the same kind of reading the businesses that
now claim the exceptions are too limiting will use the moment the
law takes effect - clears away virtually all the horror stories.
Further, the opt-in
approach found in the Canadian law is the standard in
most of the world. It can be found in Australia, the United
Kingdom, the European Union, and Japan, who have all recognized
that weaker opt-out models simply don't provide effective
Finally, the claims associated with costs leave the impression
that Canadian businesses have no compliance costs today.
That's just not true. PIPEDA and the do-not-call list both create
obligations for businesses. If they are not already
maintaining lists, respecting opt-outs, and ensuring full
compliance, they aren't following the law. CASL creates new
obligations but it doesn't change the fact that compliance costs
are not new.
The Labour Day weekend ended with a bang for telecom watchers as
Verizon, the U.S. giant that was contemplating entering the Canadian
market, announced that it was no longer interested in moving north. That
decision represents a major loss for consumers, who would have
benefited from greater choice and increased competition.
Yet days before the Verizon change of heart, the Canadian
Radio-television and Telecommunications Commission released its own
noteworthy announcement, issuing a request for information to all
Canadian wireless companies on their roaming pricing. The request, which
covers everything from roaming agreements with U.S. companies to
roaming revenues and consumer costs, may be the start of a long-overdue
effort to reign in Canadian roaming fees that the OECD has reported are
amongst the highest in the world.
The Commission acknowledged mounting concern over roaming fees, which
kick in whenever Canadians use their wireless devices outside the
country (and occasionally within the country when a provider does not
offer their own service). After attempts to gather data from publicly
available information failed to provide a clear picture, the CRTC
initiated the request for information, much of which has never been made
Based solely on the readily accessible information, however, my weekly technology law column (Toronto Star version, homepage version) notes that roaming
fees render typical usage of cellphones when out of the country
unaffordable for most Canadians.
Read More ...
TagsShareTuesday September 10, 2013
Consider an average family of four that travels to the U.S. for a
long weekend. Each person travels with their cellphone, but limits
their use to a few calls, checking email, and some text messages to
co-ordinate plans. The parents spend only 20 minutes per day talking
on their devices, the kids are limited to 10 minutes, and everyone
sends ten texts per day. The family avoids bandwidth intensive
activities such as streaming video or uploading multiple
The total cost for such modest usage? On Rogers
the hour of total talk time costs $87 per day, checking emails costs
$31.96 per day, and the 40 texts adds another $30 to the bill.
With a daily cost of $148.96, the three-day weekend total roaming
cost runs to $446.88 plus taxes.
The situation is even worse with Bell and Telus, who both charge
more for data usage. Assuming the emails used 10 MB per day per
person (a very modest figure), Bell's
of $6 per MB (Telus
charges $5 per MB) would add over $200 per day to the family's cost,
bringing the weekend cost to over $1000.
By comparison, Vodafone Australia recently unveiled
a daily cap for its customers that roam in the U.S. The plan gives
subscribers the same voice, text, and data usage as their domestic
plans for only AU$5 per day (the same offer applies to travel in the
UK and New Zealand).
Many other countries have already taken action against the gouging
that appears to occur on roaming fees. In fact, costs in the
European Union have dropped by 91 per cent over the past six years
in response to regulatory initiatives that have capped roaming fees
Canadian providers have been anticipating a regulatory response to
high roaming fees. Earlier this summer, a Rogers executive told
that "the roaming initiatives, which frankly
we think are imperative in the long run to kind of get roaming in
line, or I think we will see the same kinds of things that we've
seen in other parts of the world where it becomes high on the
Rogers has already taken some steps to drop roaming pricing,
resulting in tens of millions of dollars in reduced revenues. Yet
those reductions still yield in the pricing described above. With
costs still high by international standards and a lack of
competition an ongoing concern, regulated roaming pricing is overdue
and an important step in meeting the government's goal of "more
choice, lower prices, better service."
As students and faculty prepare to head back to campus this week, many
will be greeted by new copyright guidelines that clarify how materials
may be used without the need for further permission or licensing fees.
Just over a year after the Supreme Court of Canada released five
landmark copyright decisions in a single day and the Canadian government
passed copyright reform legislation over a decade in the making, the
education community has begun to fully integrate the new copyright
landscape into campus policies.
My weekly technology law column (Toronto Star version, homepage version) notes the new rules are significant since they grant teachers and students far
more flexibility to use portions of materials without the need for
copyright collective licences. The changes come as a result of the
expansion of fair dealing, the Canadian equivalent of the U.S. fair use
rules. The government expanded the scope of fair dealing to explicitly
include education as a recognized purpose in 2012, while the Supreme
Court has repeatedly emphasized the importance of a broad, liberal
interpretation to fair dealing in order to ensure an appropriate balance
in copyright law.
With those developments in hand, Canadian educational institutions
crafted a general fair dealing policy last year confirming that
educators can rely on fair dealing to use up to ten percent of a
copyright-protected work (or a single article, a chapter from a book, a
newspaper article, or a poem or photograph taken from a larger
collection) without the need for a licence provided they meet a
Read More ...
TagsShareWednesday September 04, 2013
After Access Copyright, a copyright collective, launched a lawsuit
against York University over its reliance on fair dealing for much
of its copying, the Association of Universities and Colleges of
Canada (AUCC), the leading university association, asked Osler,
Hoskin & Harcourt, a top Canadian law firm, to develop a series
of application guidelines that offer more detailed, specific
recommendations for many common copyright uses within education
were completed earlier this month and provide
useful information for both teachers and students. The university
community believes that consistent application of the guidelines
will reduce the likelihood of infringement and enhance York’s
defence against the Access Copyright lawsuit, suggesting that
near-identical guidelines will be used across the country.
While all the documents start from the same position - fair dealing
- each provides specific guidance for a user group or use. For
and professors are advised
that they may provide up to 10 per
cent of a work as a handout to students, email a copy of the work to
students enrolled in a class, post a copy of the work on a
password-protected website that is accessible only to students, or
display a copy of the work in a class presentation.
New application guidelines also specifically address two of the most
popular ways materials are provided to students: course
and online learning management systems. Fair dealing can
be relied upon for course packs, which are customized printed
compilations of readings. However, the guidelines require that no
profit be made in the production or sale of course packs and that
they be sold to students directly by the university.
Fair dealing also applies to online
learning management systems
, though the AUCC adopts a fairly
restrictive approach by requiring the university to operate or
control the system (services such as Dropbox are excluded),
password-protect the site, and conduct regular audits to ensure that
the fair dealing guidelines are being applied appropriately.
The AUCC guidelines confirm that the benefits of the user rights
approach articulated by the Supreme Court of Canada are emerging as
an integral part of campus copyright policies. For teachers and
students alike, the new policies will mean greater flexibility in
the use of copyrighted materials, fewer restrictive reporting
requirements, and access to more materials as universities
reallocate funds from unnecessary collective licences to
digitization of materials and wider access to electronic databases.
Registration for the
conference on the Copyright
Pentalogy: How the Supreme Court of Canada Shook the Foundations
of Canadian Copyright Law is now open. The conference is
scheduled for Friday, October 4th from 12:30 to 5:30 with a
reception to follow. There is no cost for the conference, but
advance registration is appreciated. Speakers include Carys Craig,
Paul Daly, Jeremy deBeer, Greg Hagen, Elizabeth Judge, Ariel Katz,
Teresa Scassa, Sam Trosow, and Margaret Ann Wilkinson.
Read More ...
TagsShareTuesday September 03, 2013