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
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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According to the auditor general, a 2011 study by Treasury Board and
Employment and Social Development Canada found that the cost of an
in-person transaction was $28.80 compared to only 13 cents for the
online equivalent. A 2011 United Kingdom study arrived at similar
conclusions, with online transactions 50 times cheaper than
Given its potential, Canada invested heavily in the early part of
the century in online government services. By 2005, the federal
government had encouraged a growing number of users to shift their
transactions to the Internet by providing access to 130 of the most
important government services electronically.
Yet over the past eight years, e-government in Canada has remained
at a virtual standstill. The auditor general reports:
"We examined whether there is a Government of Canada strategy for
delivering online services and found that there is no
government-wide service delivery strategy and that there has been
no overall assessment of client needs and satisfaction since 2005.
Therefore, the government has little information about what
Canadians want and how they wish to be served across the
departments. Although the government has identified in both Budget
2012 and Budget 2013 the importance of improving services to
Canadians at a lower cost, no strategy has been implemented to
establish priorities or guidance for doing so online."
In fact, the e-government strategic failure cuts across government
departments. For example, the auditor general looked at Industry
Canada and found that Minister James Moore's department "does not
have an overall service delivery strategy" and "there is no overall
strategy that focuses on service delivery or online services."
The failures are not solely a matter of a missing strategy. Earlier
this month, Public Works and Government Services Canada changed its
approach to granting crown copyright licences for users of
government works with no consultation or advance warning.
While the government's earlier approach exempted non-commercial uses
from the need to obtain a licence, the non-commercial licence has
mysteriously disappeared and the department now says it no longer
handles licensing. For Canadian publishers and educators, the
change creates significant uncertainty, requiring them to track down
the relevant department and hope that permission is forthcoming to
use works that have been paid for by taxpayers.
The government has accepted the auditor general's recommendations
and promised to take action. However, it is remarkable that an
issue like e-government has been neglected for eight years,
resulting in lost opportunities for cost savings and more efficient
delivery of government services.
TagsShareTuesday December 03, 2013
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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There were hints that this might be the government's plan. In
October 2012, the Canadian Association of Chiefs of Police renewed
its call for lawful access (the bill was still on hiatus at the
time), shifting its focus away from child predators to
cyber-bullying. In fact, the lawful access issue has long been
the source of changing justifications, moving from terrorism to spam
to child predators and now to cyber-bullying.
The latest bill leads with cyber-bullying, creating a new offence
for anyone who knowingly publishes, distributes, transmits, sells,
makes available or advertises an intimate image of a person without
consent. The offence carries up to a five-year jail term and judges
are empowered to prohibit someone convicted under the law from using
the Internet or other digital networks.
Most of the 70-page bill is devoted to bringing back the lawful
access provisions, however (though two of the most controversial
rules on mandatory warrantless access to subscriber information and
Internet provider surveillance capabilities have both been removed).
For example, the bill encourages telecom companies and Internet
providers to reveal information about their customers to law
enforcement without a court order by granting them immunity from
criminal or civil liability for such disclosures. This provision
opens the door to co-operation on the widespread surveillance
activities revealed in recent months.
The bill also creates several new warrants with big privacy
implications. One new warrant targets metadata, the information
generated by email and phone communications such as location, time,
device, and the person being contacted. Ironically, the warrant
would establish a lower standard for metadata just as the Supreme
Court of Canada recently warned that "it is difficult to imagine a
more intrusive invasion of privacy than the search of a personal or
home computer", pointing to metadata as one of the reasons why.
Another new warrant covers location information, including the
ability to install tracking devices on individuals. The bill grants
a judge the power to prohibit the disclosure of the existence or
content of these warrants, meaning that subscribers may be kept in
the dark when being tracked or having their information disclosed.
In addition to the new warrants, the bill criminalizes software that
can be used to access services such cable television, Internet
access, and telephone services without payment. The law previously
targeted devices that could be used to obtain access, but the bill
would expand the provision to cover software programmers that create
code with these capabilities as well as users that download such
Law enforcement officials have been asking for some of these
provisions for many years and there could be a good debate on the
merits of many of the proposed reforms. Yet the government is
signalling that it would prefer to avoid such debates, wrapping up
the provisions in the cyber-bullying flag and backtracking on its
commitment to not bring forward Criminal Code amendments that were
contained in the controversial Internet surveillance bill.
TagsShareWednesday November 27, 2013
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
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The U.S. finds itself relatively isolated on many issues, with only
Australia offering consistent support for its positions. For
example, Canada and most other TPP countries support a general
objectives provision that references the need for balance, promotion
of the public domain, protection of public health, and measures to
ensure that intellectual property rights themselves do not become
barriers to trade. The U.S. and Japan oppose these objectives.
If the U.S. is successful in pressuring other countries to meet its
demands, Canada would be required to radically overhaul its current
law, reversing course on many of the rules the government recently
enacted as part of its long-awaited copyright reform package or
negotiated in the trade agreement with the European Union.
Internet provider liability is likely to emerge as one of the most
contentious issues. The U.S. is demanding a provision that could
lead to terminating subscriber access, content blocking, and even
monitoring of online activities. Moreover, it requires a privacy
override to mandate disclosure of subscriber identities based merely
on unproven claims of infringement. Canada is opposed to the U.S.
The U.S. also wants Canada to extend the term of copyright. Canada
(along with several other TPP countries) currently features a term
that meets the international standard of life of the author plus an
additional 50 years. The U.S. would like Canada to extend the term
by an extra 20 years, thereby keeping works out of the public domain
for decades (Mexico is seeking an additional 50 years).
The U.S. supports the inclusion of extensive criminal penalties in
the TPP, even in non-commercial cases. In one provision, it is
seeking mandatory criminal liability for significant infringements
without any direct or indirect motivation of financial gain.
Similarly, it wants mandatory criminal rules for breaking digital
locks, an approach not found under Canadian law.
The U.S. also envisions massive changes to Canadian patent law with
the expansion of patent protections to plants and animals with few
safeguards, altering the standard of utility under Canadian law, and
extending the term of patents in a manner that would keep generics
off the market and increase health care costs.
Even the proposed Canadian anti-counterfeiting bill currently before
the House of Commons comes in for criticism, with the U.S. demanding
statutory damages for trademark infringements and seizures of
in-transit shipments of suspect goods that are not destined for the
In short, a TPP based on the U.S. proposals would signal a
near-complete surrender of a made-in-Canada approach to intellectual
property, leading to risks of lost Internet access, expansive border
seizures, increased health care costs, and criminal liability for
non-commercial infringement. The leaked text provides much need
sunlight on the secret talks, confirming that Canada has thus far
resisted many U.S. demands and that it has the potential to play a
lead role in restoring some balance to the trade deal.
TagsShareTuesday November 19, 2013
The government's anti-counterfeiting legislation, which died over the
summer when the Conservatives hit the parliamentary reset button, is now
back on the legislative fast track. Industry Minister James Moore
quickly re-introduced the bill last month and speedily sent it to the
Industry Committee for review (I appeared before the committee last week).
That review has revealed that the numerous new border measures
envisioned by the bill, including seizure powers without court
oversight, fall short of the demands of intellectual property lobby
groups. Those groups intend to use the committee hearings to seek
further expansion of border seizures and to shift more enforcement costs
to the public.
My weekly technology law column (Toronto Star version, homepage version) notes that since virtually everyone is opposed to harmful counterfeiting -
particularly when fake goods create health and safety risks - it is
unsurprising that the bill appears to enjoy all-party support. The focal
point of the bill is that it grants customs officials broad new powers
without court oversight. Officials will be required to assess whether
goods entering or exiting the country infringe any copyright or
trademark rights. Should a customs official determine that there is
infringement, the goods may be seized and prevented from entering the
Read More ...
The bill features several safeguards designed to limit the potential
for wrongful seizures or targeting of individuals. For example, it
excludes both patent claims (which are very difficult to assess) and
in-transit shipments (which involves goods that do not originate in
Canada and are not destined to stay in Canada). Moreover, there is
an exception for the personal effects carried by individual
travellers as they cross the border.
While those are sensible limitations, the lobby groups are demanding
several significant changes. First, the groups want to vest even
more powers in the hands of customs officials, calling for reforms
that would allow for the destruction or forfeiture of goods without
court oversight. Moreover, the groups argue that under the proposed
system, "too much is asked of rights holders." As a result, they
want taxpayers to bear the burden of much of the costs associated
with private enforcement of their rights.
Second, the lobby groups are demanding new statutory damages for
trademark infringement. The inclusion of statutory damages would
mean that rights holders would not have prove any actual damages,
but rather could potentially sue for millions of dollars without
evidence of loss. In the U.S., statutory damages for trademark has
led to trademark trolls engaging in litigation designed primarily to
obtain costly settlements against small businesses that can
ill-afford to fight in court.
Third, lobby groups are seeking the removal of the exception for
in-transit shipments, arguing that customs officials should be
permitted to seize goods not destined to stay in Canada. Experience
with in-transit seizures in Europe reveals that generic
pharmaceuticals are often targeted. During 2008 and 2009, Doctors
Without Borders found at least 19 shipments of generic medicines
from India to other countries were impounded while in transit in
Europe. This included a Dutch seizure of AIDS drugs that was en
route from India to a Clinton Foundation project in Nigeria. In
2011, the Court of the European Justice ruled against in-transit
seizures on the grounds that there was no infringement in the EU.
Fourth, there has been discussion at the Industry Committee about
the possibility of amending the personal traveler exception. If the
exception were removed, it might open the door to escalated searches
of both physical luggage as well as electronic devices such as
iPods, smartphones, and personal computers.
The government's counterfeiting bill would benefit from some
amendments, but the current lobby group emphasis signals that there
may be escalating pressure to remove many of the balancing
provisions. Those changes could result in cost shifting enforcement
to the public and increasing the expenses borne by small businesses
that import goods from abroad.
TagsShareTuesday November 12, 2013
Statistics Canada released its bi-ennial Internet use survey last week
and while much of the immediate reaction focused on the continuing
growth of Internet use (due largely to increased usage by those aged 65
and older), my weekly technology law column (Toronto Star version, homepage version) argues the bigger story is the ongoing Canadian digital divide that
confirms the strong link between household income and Internet use.
Statscan reports that 83 per cent of Canadians use the Internet, yet a
closer examination of the data reveals a significant gap that is closely
correlated to income. Moreover, the data also shows that Canada's high
wireless prices now play a role in the digital divide, with only a
quarter of lower-income Canadians using Internet wireless services.
Read More ...
Internet use among the richer half of the country is actually over
90 per cent with the top quartile of household income at 94.5 per
cent and the second quartile at 90.2 per cent. Internet use among
the bottom quartile of Canadians stands at only 62.5 per cent (the
third quartile is 77.8 per cent).
The digital divide remains consistent across all demographics with
wealthier households far likelier to use the Internet than poorer
ones regardless of their age. For example, Statscan reports that
47.5 per cent of Canadians aged 65 and over use the Internet (up
from 40.2 in 2010), the biggest jump of any age group. However,
there is a major divide in Internet use based on household income.
While 66.7 per cent of households over the age of 65 in the top half
of income use the Internet, that number drops to only 28.5 per cent
for the poorest quartile of households.
The ongoing battle over the competitiveness and pricing of Canadian
wireless services also plays an increasingly important role in
Internet use. Internet wireless use is easily the fastest
growing way for Canadians to access the Internet - 48.6 per cent of
Canadians used Internet wireless services in 2012, nearly double the
2010 rate of 26.2 per cent.
Wireless Internet use features the largest difference by age of any
type of access as 84.2 per cent of Canadians between the ages of 16
to 24 have used Internet wireless services, but that drops to 8.7
percent of Canadians aged 65 and over.
Household income is major factor for wireless Internet use. While
67.8 per cent of all Canadians in the top income quartile have used
Internet wireless services, only 26.4 per cent of the bottom income
quartile have done so.
The digital divide in wireless Internet use remains consistent
across different age groups. The 16 to 24 demographic are the
heaviest users of wireless Internet services, but the gap between
the rich and poor remains: 88.3 per cent of the top quartile use
wireless Internet services, but that declines to 26.4 per cent for
the poorest quartile. There is also a major gap among older
Canadians with 27.3 per cent of the top income quartile of Canadians
aged 65 and over using wireless Internet services compared to only
2.5 per cent of the bottom quartile.
Given the digital divide, it is unsurprising that poorer Canadians
rely more heavily on public access points such as libraries to use
the Internet. The biggest user of library Internet access are
Canadians aged 16 to 24, where 21.5 per cent used Internet library
access in 2012 (the overall figure for Canadians was 9.7 per cent).
When broken down by income, the number increases to 26.8 per cent
for the poorest Canadians in that demographic, compared to 16.3 per
cent for the wealthiest in that group.
If the government is serious about ensuring that all Canadians can
benefit from the Internet, the Statscan data confirms that it must
focus on finding solutions to provide affordable access to lower
income Canadians. This may include fostering a more competitive
wireless marketplace, working with Internet providers to develop
programs targeting lower income earners, and rethinking the decision
to cancel community access programs that remain valuable to many
TagsShareTuesday November 05, 2013
Last week, Bell announced plans to implement new
consumer monitoring and profiling practices that would greatly
expand how it uses the information it collects on millions of
subscribers. The planned scope of Bell's profiling is unprecedented
in Canada, reflecting the power of a vertically-integrated media
giant to effortlessly track their customers' location, media habits,
search activity, website interests, and application usage.
My weekly technology law column (Toronto
Star version, homepage version) notes the Bell plan generated
a significant public backlash with the Privacy Commissioner of
Canada launching an immediate investigation. Yet the company
steadfastly defended its plans, saying that users are supportive of
the new policy and maintaining that it is fully compliant with
Read More ...
TagsShareTuesday October 29, 2013
Given that many of its customers purchase bundled Internet and
wireless services, the magnitude of the profiling extends to
virtually all media and communications activity. Bell acknowledges
that it will be tracking seemingly everything about their customers:
which websites they visit, what search terms they enter, what
television shows they watch, what applications they use, and what
phone calls they make. Moreover, all of that data will be correlated
with additional data points such as location, age, gender, and even
bill payment practices.
Bell says it intends to use the data in several ways. First, it
will begin to use targeted advertising to its customers by using its
detailed consumer profile. The default for the company is that all
consumers will be profiled and targeted. If consumers don't want to
receive these targeted ads, Bell will force them to opt-out. Second,
Bell says it will aggregate its data to sell to other businesses and
marketing companies so that they can use the Bell network usage for
their own purposes.
Bell insists that its monitoring and profiling plans are legal, claiming
that it followed "every guideline" released by the Privacy
Commissioner of Canada. However, the upcoming investigation is
likely to focus on whether its use of an opt-out system meets the
Last year, the Privacy Commissioner released online
behavioural advertising guidelines
that permit the use of an
opt-out approach in some circumstances. The guidelines may not
govern here, however, since they explicitly do not apply to
advertising in a mobile context.
In fact, the guidelines also emphasize that opt-outs can only be
used if the information is non-sensitive. Given the breadth of data
- which includes locational information, payment records, and
profiles on interests and media activities - it is hard to see how
it can be fairly characterized as non-sensitive. Rather, to ensure
compliance with the law, Bell should be adopting an opt-in model,
where its customers are only subject to monitoring and profiling if
they proactively make that choice.
The legal concerns with the Bell profiling plan are not limited to
the private sector privacy law. The Canadian Radio-television and
Telecommunications Commission's policy on Internet traffic
management states that Internet providers are not permitted to use
personal information collected for managing their networks for other
purposes. If Bell is obtaining some of the profiling information
through the deep-packet inspection of customer Internet use, the
plan to use the information for profiling purposes would appear to
violate the CRTC policy.
Not only does the Bell profiling plan raise privacy law concerns,
but customers are rightly concerned that their profile may be
disclosed to law enforcement without a court order. The law
currently permits disclosures as part of a law enforcement
investigation without court oversight (though an ISP can refuse the
disclosure if there is no warrant). In the past, Bell has not
committed to requiring law enforcement to obtain a court order
before it discloses information.
Online behavioral advertising may be increasingly common, yet the
Bell profiling and monitoring plan extends far beyond what virtually
any other company could collect. That may prove appealing to
advertisers, but millions of Bell customers may oppose efforts to
extensively track their location, online activities, payment
practices, and media habits.
The power of the Internet to shake up well-established industries has
become a common theme in recent years as many businesses struggle to
compete with new entrants and technologies. While it has captured
limited attention outside of educational circles, the Internet has
facilitated the emergence of open access publishing of research,
transforming the multi-billion dollar academic publishing industry and
making millions of articles freely accessible to a global audience.
My weekly technology law column (Toronto Star version, homepage version) notes that "Open Access Week", which is used by supporters to raise awareness of
the benefits of open publishing, is being marked at university campuses
around the world this week just as a Canadian study confirmed a global
open access tipping point and Canada’s major research funding agencies
prepare to mandate open access publishing for grant recipients across
Read More ...
TagsShareThursday October 24, 2013
According to a European Commission-funded report
by Montreal-based Science-Metrix, more than half of all research
publications in some countries and fields of study are now freely
available online. The company found that countries such as the
United States, Switzerland, Israel, and the Netherlands have all
passed the 50 per cent mark for open access publication. Canada is
on the verge of joining those countries, falling just shy at 49 per
The shift toward open access becoming the default form of
disseminating research in many fields is a remarkable change given
that conventional publishing in expensive subscription-based
journals was the standard in many areas as recently as ten years
ago. The move toward open access means that global research is far
more accessible to everyone - scientists, researchers, and the
Canadian open access may also soon hit its tipping point if the
three federal research granting institutions - the Canadian
Institutes of Health Research, the Social Sciences and Humanities
Research Council of Canada, and the Natural Sciences and Engineering
Research Council of Canada - follow through with a proposed open
The three institutions, which collectively dole out hundreds of
millions of dollars in research support annually, launched a consultation
last week on a standardized open access policy
policy would require grant recipients to ensure that their
peer-reviewed publications are freely available online within 12
months of initial publication.
The policy sends a strong message to all researchers that the public
should not be asked to pay for access to the research that it funds.
Rather, researchers seeking taxpayer support can reasonably be
required to make their research openly available to the public.
In fact, the adoption of a standardized open access policy may open
the door to several other initiatives. In addition to the changes
for research publications, the agencies may also pursue new open
data requirements that would mandate the availability of the raw
information generated by research activities. Moreover, while the
current policy is limited to research articles, books and other
larger publications that benefit from taxpayer support may also face
pressure to adopt more open models of access.
The implications of open access policies extend far beyond shaking
up the academic journal market. Openly available articles are
already being incorporated into teaching materials, thereby
replacing conventional textbooks and removing the need for copyright
permissions and fees. Open access may also help foster greater
collaboration between researchers and the business community with
improved access leading to commercialization opportunities that
might otherwise be missed.
As the Canadian academic community celebrates open access week, it
appears that the long-awaited tipping point may be about to head
The Royal Bank of Canada updated its mobile
application for Android users earlier this month. Like many
banking apps, the RBC version allows users to view account balances,
pay bills, and find bank branches from their smartphone. Yet when
users tried to install the app, they were advised that the bank
would gain access to a wide range of personal data.
The long list of personal data - far longer than that found in
comparable applications from banks such as TD Canada Trust or Bank
of Montreal - included permission to use the device's camera, to
read the user's call history, to access the user's Internet browsing
habits, and to even check out their browser bookmarks. After users
took to Twitter and the Google app review section to complain, RBC
advised that it would update the app and that users should "stay
tuned" about the permission requirements.
My weekly technology law column (Toronto
Star version, homepage version) notes that RBC is not alone in
requiring users to disclose more personal information in order to
access services. Aeroplan, the loyalty program linked to Air Canada,
sent an email last week to hundreds of thousands of Canadians
notifying them that it too was changing its data collection
Read More ...
The company disclosed that holders of its popular financial credit
cards (which can be used to earn Aeroplan points based on total
spending) will soon be required to grant it access to detailed
financial activity. Starting next year, Aeroplan will be privy to
all cardholder transactions, including merchant names, transaction
amounts, and dates of the transactions.
The personal data grab from two of Canada's best-known companies is
part of a disturbing privacy trend involving a seemingly insatiable
desire for customer information. These demands stretch Canadian
privacy law to its limits and run the risk of placing user data at
risk for security breaches.
Canadian privacy law requires organizations to obtain consent for
the collection, use, and disclosure of personal information. The
basic premise is that privacy is a negotiated bargain in which
companies can ask for permission to do virtually anything with the
personal information they collect so long as users grant their
The law does contain an important limitation, however, stating that
"an organization shall not, as a condition of the supply of a
product or service, require an individual to consent to the
collection, use, or disclosure of information beyond that required
to fulfil the explicitly specified, and legitimate purposes." In
other words, companies can ask for whatever information they believe
is reasonable under the circumstances, but they cannot mandate the
disclosure if it is not strictly necessary to supply the good or
Despite the legal limitations, the RBC and Aeroplan policies
illustrate how companies have become increasingly aggressive in
their personal information collection practices. Companies use data
mining technologies (the same ones used by intelligence agencies to
comb through the meta data of billions of telephone calls) to
analyze customer habits and inform a wide range of business
Some uses may seem relatively innocuous, yet the practice of
collecting as much data as possible raises serious concerns.
The risk of a security breach increases as companies capture and
retain more and more information. This is particularly true for
sensitive financial data, which is now accessed by more than just a
regulated financial institution.
Moreover, the collection practices push the legal envelope by
requiring disclosures that are not strictly necessary to maintain a
loyalty program or offer a mobile app. There have been relatively
few complaints to the Privacy Commissioner of Canada on these
issues, which may be a product of a public that has become
increasingly cynical about the potential for privacy laws to stop
invasive practices from both government and the private sector. Yet
as companies seek mountains of customer data, it may be time for
consumers to start saying no.
TagsShareWednesday October 16, 2013
With the cost of cybercrime in Canada on the rise - a new report
released last week by Symantec, a security software vendor, pegged the
cost at $3.1 billion annually - my weekly technology law column (Toronto Star version, homepage version) reports that the Canadian government is quietly
working behind-the-scenes to create a new Internet service provider code
of conduct. If approved, the code would be technically be voluntary for
Canadian ISPs, but the active involvement of government officials
suggests that most large providers would feel pressured to participate.
The move toward an ISP code of conduct would likely form part of a
two-pronged strategy to combat malicious software that can lead to
cybercrime, identity theft, and other harms. First, the long-delayed
anti-spam legislation features new disclosure requirements for the
installation of software along with tough penalties for non-compliance.
Recent comments from Industry Minister James Moore suggest that the
government is ready to bring that law into effect. Second, the code of
conduct would require participants to provide consumers with assistance
should their computers become infected.
Read More ...
TagsShareWednesday October 09, 2013
The proposed code, which is modeled on a similar Australian initiative dubbed the iCode
has been placed on a policy fast-track, with officials hoping to
create a final version by the end of the year. The Australian
version features a standardized notification system that requires
ISPs to alert customers that their computer or electronic device may
be compromised by malicious software (often referred to as botnets).
The notification may include sending the customer to an information
webpage advising them of the threat and the steps needed to address
the problem. Repeated notifications may result in the customer
having their Internet access suspended
The Australian iCode also involves the creation of a comprehensive
resource for ISPs on new cybersecurity threats and a reporting
mechanism from ISPs to a centralized agency that gathers threat
information. The approach has garnered support from other countries.
South Africa adopted
the iCode last year, while both Japan and Germany have implemented
Yet not everyone is convinced that the iCode system actually works.
When the U.S. began considering the Australian system in 2011,
experts questioned its effectiveness. For example, the SANS
Institute looked at the Australian results and concluded that the
reduction in botnets was "insignificant
Moreover, Symantec highlighted the danger of fraudulent
notifications, arguing that they could "aggravate the problem rather
than alleviate it."
Notwithstanding the concerns, the Canadian government appears
convinced that an ISP code of conduct is long overdue. According to
government documents, Industry Canada quietly gathered the major
Canadian ISPs in late July to present the concept of an industry
code and the experience in other countries. The presentation noted
that unlike current Canadian initiatives that do not include direct
consumer support, the proposed code would require consumer
assistance in addition to the creation of education programs,
information sharing, and reporting requirements.
Last month, stakeholders were brought back for a follow-up meeting
where government officials presented an ambitious timeline that
envisions final approval on the code within the next three months.
One way to speed up the process appears to be the exclusion of any
public participation. The government timeline offers several
opportunities for ISPs and other stakeholders it has identified to
comment on the draft code, but does not feature any public
consultations or opportunities for feedback.
Despite the active government involvement, officials have worked
hard to emphasize that the code would be voluntary, claiming that
the approach will demonstrate industry consensus and that "the
regime is not being imposed on the sector by the government."
However, with the public excluded from the process and industry
fears that the code could gradually expand into other issues, the
rushed effort for a Canadian ISP code of conduct may need to slow
down and give way to a more open, inclusive and transparent
The need for a large-scale Canadian digitization strategy has been
readily apparent for many years, with experts repeatedly pointing to the
benefits that would come from improved access to Canadian history and
culture. While other countries have marched ahead with ambitious
projects that often incorporate historical text records, photographs,
and video, Canada has fallen behind.
Library and Archives Canada, which is charged with preserving and making
accessible Canada’s documentary heritage, has led the digitization
effort, but most of its work over the past decade has failed to bear
Given the past disappointments, my weekly technology law column (Toronto Star version, homepage version) notes the launch a massive new digitization
project should have been a cause for celebration. Last June, the LAC and
Canadiana, an alliance of public and academic libraries focused on
digital preservation, announced plans to digitize and create metadata on
60 million historical Canadian documents. The documents are currently
in microfiche and the project envisions digitizing the images and adding
transcriptions and metadata (data about data content) to improve their
Yet as the details of the project dubbed Héritage leaked out,
controversy arose with concerns that the historical documents would be
placed behind a paywall that would require individual Canadians to pay
monthly fees for access. That generated a significant outcry from many
groups, with then-Canadian Heritage Minister James Moore assuring the
House of Commons that the new head of LAC would closely examine the
After the outcry subsided, however, Héritage began to proceed largely as
planned. The key supporters of the project - Canadiana, the major
library associations, and the LAC - tried to assure critics that their
concerns were unfounded, promising to make the digitized microfiche
copies freely available to all and restricting additional fees to
value-added services such as transcription or metadata. However, newly
obtained documents under the Access to Information Act raise troubling
questions about public access and promises of exclusivity made by the
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TagsShareTuesday October 01, 2013
Among the documents obtained is the previously
between LAC and Canadiana (underlying
). The contract
which was signed in May 2013, does not provide for digital public
access to the documents without a paywall. Rather, the minimum
requirements are that the LAC will provide physical access in its
reading rooms, Canadiana will charge fees for hosting the content,
and at least ten per cent of the collection will be made freely
available online each year. After ten years, the entire collection
will be openly available to the public online.
The contractual terms are inconsistent with public statements that
provided assurances that all digital copies would be publicly
available on completion and that the ten per cent restrictions would
only apply to works with additional transcription or metadata.
Canadiana officials now say that they plan to go beyond the
contractual requirements, yet it is surprising that the LAC did not
insist on full public access within the contract.
The contract also grants Canadiana exclusive rights to host and make
accessible online the entire collection for ten years. However, internal
readily acknowledge that there was nothing to
stop anyone from doing the same thing, since the documents are in
the public domain and there is free access to the physical copies.
In fact, granting exclusivity rights is difficult to reconcile with
the role of the LAC in digitizing the historical records, which is
far more extensive that is generally appreciated. The contract
indicates that the LAC will digitize no less than two-thirds of the
collection. Given that the LAC is doing most of the digitizing and
Canadiana hopes to rely on crowdsourcing techniques for some of the
transcription and metadata, the extensive public contribution
creates real doubts about the need for any paywall or exclusivity.
The Héritage project promises to offer unprecedented access to
Canadian historical documents. Yet the fine print of the agreement
may leave many wondering how a deal could have been reached without
mandating free online public access, while granting exclusive rights
that do not exist.