The examination of the proposed Bell acquisition of Astral
Communications took place last week in Montreal with the Canadian
Radio-television and Telecommunications Commission hearing from a wide
range of supporters and opponents of a deal that only last year was
rejected as contrary to the public interest.
As Bell and Astral sought to defend their plan, a familiar enemy emerged
- Netflix. What does a U.S.-based Internet video service with roughly
two million Canadian subscribers have to do with a mega-merger of Bell
My weekly technology law column (Toronto Star version, homepage version) notes that for the past few years, it has become standard operating procedure at
CRTC hearings to ominously point to the Netflix threat. When Internet
providers tried to defend usage based billing practices that led to
expensive bills and some of the world's most restrictive data caps, they
pointed to the bandwidth threat posed by Netflix. When cultural groups
sought to overturn years of CRTC policy that takes a hands-off approach
to Internet regulation, they argued that Netflix was a threat that
needed to be addressed. So when Bell and Astral seek to merge, they
naturally raise the need to respond to Netflix.
Read More ...
This is an age-old strategy that seems to resurface every decade. In
the 1980s, it was the effort to keep large U.S. specialty channels
such as ESPN and MTV out of the market that led to the creation of
TSN and MuchMusic. In the 1990s, the U.S. satellite television
providers were branded the "death stars" and kept out of the market
to allow for Canadian entries. In the 2000s, it was U.S. satellite
radio services that were denied entry until acquiescing to minimum
Canadian content requirements.
In this decade, it is the Internet's turn as over-the-top video
services such as Netflix are viewed as threats to established
Canadian broadcasters, broadcast distributors, and content creators.
To date, the CRTC has largely skirted the issue by pointing to
studies that suggest that Netflix and other over-the-top video
providers have only had a minimal impact on the consumer market. But
that won't last. Whether Netflix or the myriad of other online video
services - from YouTube's forthcoming subscription services to the
National Film Board's documentary film Netflix competitor (scheduled
to launch in 2014) to sports leagues offering season packages for
Internet distribution to film studios launching their own services -
the online distribution model is only going to increase in
Rather than claiming limited impact, the CRTC should embrace the
trend by concluding that the services are a boon to both consumers
and content creators consistent with its policy mandate that does
not require regulatory change or protection for established Canadian
For consumers, the benefits are obvious with more choice, greater
convenience, and lower prices.
Creators also benefit from the proliferation of these services by
virtue of the heightened competition for their content. In years
past, the competitive landscape in Canada was limited to a handful
of broadcasting organizations. The entry of new competitors means
there will be a larger ecosystem of distributors, intermediaries,
and original producers all vying for enough content to make a
compelling offering to consumers.
The established players unsurprisingly view the new entrants as a
threat since they offer competitive content at a fraction of the
price of a typical cable or satellite bill, increase acquisition
costs, and free consumers from being locked into a small number of
Broadcasters and some content creator groups may be comfortable with
a highly regulated system that provides a steady stream of revenue,
but the new environment creates a more competitive landscape and the
promise of increased demand for new creative works. Viewed in that
light, the shift toward a robust online video market should be
welcomed by the CRTC with open arms, not viewed warily as a threat
in need of regulatory intervention.
TagsShareThursday May 16, 2013
As the future of the proposed Canada - European Union Trade
Agreement becomes increasingly uncertain - the EU has been
unwilling to compromise on the remaining contentious issues
leaving the Canadian government with a deal that offers limited
benefits and significant costs - the Trans-Pacific Partnership
Agreement (TPP) is likely to emerge as the government's new top
The TPP has rapidly become of the world's most significant trade
negotiations, with participants that include the United States,
Australia, Mexico, Malaysia, New Zealand, Vietnam, Japan, and
Canada. There is a veil of secrecy associated with the TPP,
however, as participants are required to sign a confidentiality
agreement as a condition of entry into the talks. Despite
those efforts, there have been occasional leaks of draft text that
indicate the deal could require major changes to Canadian rules on
investment, intellectual property, cultural protection,
procurement, and agriculture.
My weekly technology law column (Toronto
Star version, homepage
version) notes the Canadian government has adopted several
measures to guard against leaks by departmental officials.
According to documents obtained under the Access to Information
Act, a November 2012 email to government officials noted that
their access to TPP texts was conditioned on "Secret" level
clearance, an acknowledgement that all texts are watermarked and
can be traced back to the source, and confirmation that no sharing
within government is permitted without prior approval.Read More ...
TagsShareWednesday May 08, 2013
While the government tries to stop potential leaks, the newly
obtained government documents reveal that the Department of Foreign
Affairs and International Trade has established a secret insider
group with some companies and industry associations granted access
to consultations as well as opportunities to learn more about the
agreement and Canada's negotiating position.
Those documents indicate that the first secret industry consultation
occurred weeks before Canada was formally included in the TPP
negotiations in a November 2012 consultation with telecommunications
providers. All participants were required to sign non-disclosure
Soon after, the circle of insiders expanded with the formation of a
TPP Consultation Group created as part of the trade talks in New
Zealand in December 2012. Representatives from groups and companies
such as Bombardier, the Canadian Manufactures and Exporters,
Canadian Agri-Food Trade Alliance, and the Canadian Steel Producers
Association all signed a confidentiality and non-disclosure
agreement that granted access to "certain sensitive information of
the Department concerning or related to the TPP negotiations."
This is not the first time DFAIT has tried to establish a secret
insiders group that is granted preferential access to proposed
treaty information not otherwise available to the public. During the
Anti-Counterfeiting Trade Agreement negotiations, the department planned
a similar insider group - called a Trade Advisory Group - that
initially included representatives from the music, movie, software,
and pharmaceutical industries. The plan was scuttled only
after the department's intention became public.
While the need for business insight as part of trade talks is
understandable, the two-tier approach raises serious concerns about
the lack of transparency associated with Canada's global trade
strategy. As the Canada - EU Trade Agreement has begun to founder,
Canadian officials have become increasingly tight-lipped about the
specific concerns associated with the agreement. By contrast,
European officials regularly update both elected officials and the
general public. In fact, Europe has become the primary source for
information about where Canada stands in the negotiations.
The creation of a secret TPP insider group suggests that the
government is shying away from public consultation and scrutiny of
an agreement that could have a transformative effect on dozens of
sectors. With TPP negotiations set resume in Lima, Peru in less than
two weeks, Canada should be increasing efforts to gain public
confidence in the talks by adopting a more transparent approach.
As Canadians focused last week on the aftermath of the Boston Marathon
bombing and the RCMP arrests of two men accused of plotting to attack
Via Rail, the largest sustained series of privacy breaches in Canadian
history was uncovered but attracted only limited attention. Canadians
have faced high profile data breaches in the past - Winners/HomeSense
and the CIBC were both at the centre of serious breaches several years
ago - but last week, the federal government revealed that it may
represent the biggest risk to the privacy of millions of Canadians as
some government departments have suffered breaches virtually every 48
The revelations came as a result of questions from NDP MP Charlie Angus,
who sought information on data, information or privacy breaches in all
government departments from 2002 to 2012. The resulting documentation
is stunning in its breadth.
My weekly technology column (Toronto Star version, homepage version) notes that virtually every major government department has sustained breaches, with
the majority occurring over the past five years (many did not retain
records dating back to 2002). In numerous instances, the Privacy
Commissioner of Canada was not advised of the breach.
Read More ...
Some of the most vulnerable departments are those that host the most
sensitive information. For example, Citizenship and Immigration
Canada suffered 161 breaches in 2012 - more than three per week -
affecting hundreds of people. The department only disclosed the
breaches to the Privacy Commissioner of Canada on five occasions.
Human Resources and Skills Development Canada famously suffered a
massive breach last year - 588,384 individuals were affected - but
less well known is that the department has had thousands of other
breaches over the past few years. In 2007, a breach affected 28,651
people, yet the Privacy Commissioner of Canada was not informed and
the department is unsure of whether the breach resulted in criminal
Virtually no department has been immune to security breaches with
nearly 100,000 individuals affected by breaches at Agriculture and
Agri-Food Canada since 2008, almost 5,000 individuals hit at
Fisheries Canada with no reporting to the Privacy Commissioner of
Canada, and just under 200 breaches at the RCMP affecting an unknown
number of people.
If a similar situation occurred involving a major Canadian bank,
retailer, or telecom company, there would be an immediate outcry for
tougher rules on mandatory disclosure of security breaches. Yet the
federal government plays by different rules, with no liability and
no legal requirements to disclose the breaches.
Successive federal privacy commissioners have urged the government
to reform the badly outdated Privacy Act to at least hold government
to the same privacy standard that it expects from the private
sector. But those calls for reform have been repeatedly ignored.
Most recently, Privacy Commissioner of Canada Jennifer Stoddart
identified twelve seemingly uncontroversial reforms, including
strengthening annual reporting requirements by government
departments, introducing a provision for proper security safeguards
for the protection of personal information, and creating legislated
security breach notification requirements. None of the
recommendations have been implemented.
In fact, Canadian privacy failures dot the legislative landscape.
Bill C-12, the Canadian private sector privacy bill intended to
implement reforms that date back to hearings conducted in 2006 lies
dormant in the House of Commons. A review of the private sector
privacy law that was required by law in 2011 has seemingly been
forgotten. Anti-spam legislation passed in 2010 and touted as a key
part of the government's cybercrime strategy is stuck as Industry
Minister Christian Paradis dithers on the applicable regulations.
No institution has greater access to the personal information of
Canadians than the federal government. The public entrusts it to
keep their information secure and to take all appropriate action
should a security breach occur. The latest revelations indicate that
the failure to live up to that trust is spread across virtually all
government departments and to the political leaders that have failed
to introduce much-needed legislative privacy safeguards.
TagsShareTuesday April 30, 2013
Last month, Jean-Pierre Blais, the chair of the Canadian
Radio-television and Telecommunications Commission, delivered a
much-discussed speech at the Canadian Media Production Association's
annual conference. The CMPA is Canada's leading organization for the
production of Canadian film and television programming and Blais'
message was intended to both congratulate and challenge the industry.
On the congratulatory side, Blais noted the Canadian film and television
production had a record year in 2012, growing by over $500 million over
the prior year, by far the highest total and fastest growth in over a
decade. Canadian television production led the way, increasing 21.3 per
cent in 2011/12, for a ten-year high of just under $2.6 billion. Most of
the increase was due to English-language programming, with fiction
production growing by over 41 per cent.
Blais' challenge came in several forms, but my weekly technology law column (Toronto Star version, homepage version) notes the comment that attracted
the most attention was his remark that "under my watch, you will not see
a protectionist. I'm a promotionist." Most observers took the comment
to mean that the CRTC will not focus on mechanisms such as Canadian
content requirements and foreign restrictions as a means to advance
Canadian culture. Rather, with billions being spent on the creation of
Canadian programming, it is better to concentrate on marketing and
promotion of those works.
Yet there was a second comment that garnered less attention, but that
may ultimately prove more important. After encouraging the industry to
become more innovative and entrepreneurial, Blais warned "you will need
to compete, just like any other sector."Read More ...
TagsShareTuesday April 23, 2013
That may sound unremarkable, but to an industry that has often
focused on creating rather than competing, it represents a potential
For example, most of the funding for the record amount of
Canadian English-language television programming came from
taxpayers and broadcasters, not the original producers of the
content. According to Profile
2012, an annual report on the state of the industry, only
ten per cent came from private funding such as production
companies and private investors. Canadian distributors covered 18
per cent of the total costs, with foreign distributors kicking in
an additional nine per cent.
That still represents less than half of the total financing costs
for Canadian English-language television programming. Federal and
provincial tax credits provided the largest chunk of funding,
covering 29 per cent of the cost, while broadcaster licence fees
constituted another 25 per cent. The Canada Media Fund, which is
jointly funded by the taxpayers and cable and satellite providers,
covered the remaining ten per cent.
The notion of competing in the market should take centre stage
this week as the CRTC conducts its hearing on whether Canadians
who subscribe to cable and satellite television packages should be
required to pay for channels such as Sun News Network and
Starlight, a proposed all-Canadian movie channel. The regulatory
process has been likened to winning the lottery, since channels
selected for mandatory carriage are guaranteed millions in revenue
regardless of whether Canadians watch or even want the channel.
The best approach would be to scrap the mandatory carriage rules
altogether. Instead, the Commission could require cable and
satellite companies to offer all licensed channels to their
customers. That would enable consumers to decide what they want to
pay for and assuage broadcaster concerns that some distributors may
withhold access to their programming altogether.
That shift in approach would represent a significant change in
Canadian broadcast policy, effectively establishing a framework
that requires the industry to compete for subscribers. As CRTC
Chair Blais would say, just like any other sector.
The state of Internet access in Canada has been the subject of
considerable debate in recent years as consumers and businesses alike
assess whether Canadians have universal access to fast, affordable
broadband that compares favourably with other countries. A new House of
Commons study currently being conducted by the Standing Committee on
Industry, Science and Technology offers the chance to gain a better
understanding of the strengths and weaknesses of Canadian high-speed
networks and what role the government might play in addressing any
The study is ongoing, yet my weekly technology law column (Toronto Star version, homepage version) notes that two issues are emerging as key concerns:
access and adoption.
Read More ...
TagsShareWednesday April 10, 2013
The access issue is no surprise as there are still hundreds of
thousands of Canadians without access to broadband services from
local providers. While this is often painted as an urban vs. rural
issue (with universal access in urban areas vs. sparse access or
reliance on pricey satellite services in rural communities), the
reality is that there are still pockets within major cities in
Canada without access to either cable or DSL broadband service.
Many of these communities are described as "uneconomic", since the
costs associated with building broadband networks are viewed as too
expensive given the expected return on investment. The government
has funded some programs to foster improved access, however more may
be needed to finish the job. This could include direct subsidies
funded from revenues obtained through the forthcoming spectrum
auction or tax relief for community-based broadband initiatives.
Interestingly, the committee
to such investment from Xplornet
Communications, a satellite Internet provider focused on rural
communities that appears to view public support for universal access
as competition. It told the committee that the repeated efforts to
help support broadband access in rural communities was the
"definition of insanity" and that it was better for the government
to stop "distorting the market" by allocating funding to communities
that are otherwise viewed as uneconomic for service providers.
Even if those pleas are rejected, the committee will face the
challenge of addressing a second, less discussed, problem with
Canadian broadband: adoption. Policies aimed at achieving universal
broadband access have typically adopted a "Field of Dreams" style
approach in which it is assumed that "if you build it, they will
Yet the Canadian consumer and business experience to date suggests
that this is not always true. On the consumer side, there are
millions of Canadians with access to broadband networks, but who
choose not to subscribe. The adoption failure is likely the result
of many factors, however, the data indicates that there is a strong
correlation between income and adoption.
Statistics Canada reports
that 97 percent of Canadians in the top income quartile have access
to the Internet in their homes, but that number drops to 54 percent
for those in the bottom quartile. In other words, nearly half of all
Canadians with incomes of $30,000 or less do not have ready access
to the Internet and programs aimed at closing this gap are sorely
missing in Canada.
An oft-overlooked problem is the poor adoption performance of
Canadian businesses. The Canadian Chamber of Commerce told
that 70 percent of small and medium sized
businesses in Canada do not have a website. Moreover, Canadian firms
are investing in technology at rates that are nearly half of those
in the United States.
The government has acknowledged
(though it disputes the Chamber's figures), but
has done very little to address it. For example, a federal
program aimed at helping get businesses online has a target of
supporting only 600 firms with the hope that those companies might
share their experiences with others through word-of-mouth.
Further, when asked about targets for adoption within the next two
years, officials were unable to cite a specific figure.
The commonality between the shortcomings of access and adoption by
both consumers and businesses is that the government has failed to
articulate a digital strategy aimed at solving these problems. Until
that happens, it seems likely that the Canadian digital divide will
continue to expand.
Few things are more common on the Internet than the lengthy, largely
incomprehensible, online contracts that are often buried at the bottom
of web pages with a simple link to "terms". These agreements sometimes
run dozens of pages if printed out and invariably transfer all
responsibility and liability to the user, while selecting a jurisdiction
clause that is advantageous to the website and inconvenient to most
Consumers agree to these contracts dozens of times each day (sometimes
proactively by clicking that they agree and most other times by
impliedly agreeing to the terms by using the website), but the
enforceability of all the terms within the agreement remains an open
The law has removed most uncertainty about whether an electronic
contract can be enforceable - it can - but ensuring that the form of the
contract is valid does not mean that all of its provisions will be
enforced by a court. My weekly technology law column (Toronto Star version, homepage version) notes that last month, a Quebec court provided an important
reminder that some provisions may not be enforced, as it rejected eBay's
standard terms which require all disputes to be adjudicated in
Read More ...
TagsShareThursday April 04, 2013
The case involved an auction gone bad with the Montreal-based
sellers seeking to hold eBay responsible. Two students had acquired
a rare pair of Nike shoes produced for the National Basketball
Association 2012 All-Star game. The shoes were listed for auction on
eBay and quickly garnered bids that exceeded U.S.$50,000. Before the
auction was concluded, however, eBay stopped the auction (the
reasons have yet to be disclosed in court).
The two students sued the online auction giant in a Quebec court,
arguing that it could assert jurisdiction over the matter since the
sellers were located in the province. eBay countered by noting that
governed by Ontario and Canadian laws, any litigation must occur in
The Quebec court was not impressed, noting that the eBay agreement
was over six pages of dense text with "a large number of conditions
and restrictions stacked on top of each other in language that is
difficult to understand." The jurisdiction clause was located at the
bottom of page five, leading the court to wryly conclude that for a
user with very good eye sight and lots of patience and
determination, they will find the provision stipulating California
as the forum for disputes.
The court suggested that the choice of California appeared to be an
attempt to dissuade potential litigants from proceeding with their
action, noting that using Canadian law as the governing law but
California courts as the jurisdiction for disputes was inserted to
"prevent, deter, and void" any appeal against eBay.
Given the court's discomfort with the eBay agreement, it concluded
that the California jurisdiction provision was "excessive and
unreasonable" and therefore void. The decision allows the two
students to continue their action against eBay in the Quebec courts.
The ruling runs counter to earlier Canadian cases that have
generally granted considerable deference to freedom of contract and
the ability to enforce somewhat onerous jurisdiction clauses.
For example, one of the first e-commerce cases in Canada involved a
lawsuit against Microsoft
, which at the time was offering
Internet access services. The lawsuit was launched in Ontario,
but Microsoft's electronic user agreement included a provision
stipulating the State of Washington as the jurisdiction to settle
An Ontario court upheld both the contract and the provision, warning
in a 1999 decision that failure to enforce electronic contracts
would "lead to chaos in the marketplace, render ineffectual
electronic commerce and undermine the integrity of any agreement
entered into through this medium."
Those concerns may have been valid when e-commerce was just getting
started, but years later the Quebec decision suggests that
e-commerce is also dependent upon fair contracts that grant a
genuine ability to pursue legal action in the event of a dispute.
With only limited fanfare, earlier this month Industry Minister
Christian Paradis introduced Bill C-56, the Combating Counterfeit
Products Act. Since no one supports counterfeit products - there are
legitimate concerns associated with health and safety - measures
designed to address the issue would presumably enjoy public and
all-party support. Yet within days of its introduction, the bill was the
target of attacks from both opposition parties and the public.
The NDP raised the issue during Question Period in the House of Commons,
accusing the government of trying to implement the widely discredited
Anti-Counterfeiting Trade Agreement (ACTA) "through the backdoor." The
public also picked up on the issue, noting that the bill appears to be
less about protecting Canadians and more about caving to U.S. pressure
(the U.S. called on Canada to implement ACTA on the same day the bill
My weekly technology law column (Toronto Star version, homepage version) notes the concerns associated with the bill fall into two main categories:
substance and ACTA implementation. The substantive concerns start with
the decision to grant customs officials broad new powers without court
oversight. Under the bill, customs officials are required to assess
whether goods entering or exiting the country infringe any copyright or
Read More ...
While officials are not intellectual property experts, the
assessment includes consideration of whether any of the Copyright
Act's exceptions may be applied. These determinations are complex -
courts often struggle with the issue - yet the bill envisions
granting these powers to customs officials with no review by a judge
and no limits on the types of goods involved. Should a customs
official determine that there is infringement and that no exception
applies, the goods may be seized and prevented from entering the
In addition to the seizure provisions, the bill involves expansive
information disclosures, with detailed information sharing on
shipments as well as the ability for rights holders able to seek
assistance from Vic Toews, the Minister of Public Safety (who will
be delegated some responsibilities under the Copyright Act) to
detain imports and exports. Moreover, penalties associated with
copyright and trademark are on the rise, with tougher criminal
provisions added to the law.
While most would agree that officials should have sufficient tools
to protect public health and safety, the bill does not confine the
broad new powers to those special cases. For example, the government
could have limited seizures without court oversight to instances
where officials reasonably believe there is a public safety risk,
but the bill treats everything from counterfeit pharmaceuticals to a
suspect painting in the same manner.
The substance of the bill is cause for concern, yet what has many up
in arms is that the bill signals Canada intention to implement ACTA.
Public protests against ACTA were staged throughout Europe last
year, leading to a European Parliament rejection of the treaty.
Similar opposition has arisen in ACTA participating countries such
as Switzerland (which has not signed the treaty), Australia (where a
Parliamentary Committee recommended against ratification), and
Mexico (where a Senate motion rejected it).
ACTA is badly damaged and will seemingly never achieve the goals of
its supporters to emerge as a new global standard for intellectual
property enforcement. But for the U.S., which spent years
pressuring ACTA participants to strike a deal, it still hopes to
revive the agreement by at least garnering the necessary six
ratifications for it to take effect.
With Europe and Switzerland both out of the agreement, there are
only nine countries left. The U.S. apparently sees Canada as an easy
target for support, leading to mounting pressure to implement the
bill. That leaves Canadians with Bill C-56, which may be
characterized as a counterfeiting bill, but whose primary objective
appears to be to satisfy U.S. pressure to implement an agreement
that the majority of our major trading partners have either never
signed or flatly rejected.
TagsShareWednesday March 13, 2013
The movie Argo may have picked up the biggest prize in last week's
Academy Awards ceremony, but it was the Best Documentary Short winner
that had many on the Internet buzzing. Inocente, a film about a 15-year
old homeless girl who dreams of becoming an artist, took home the Oscar
and in the process became the first Internet crowdsource funded film to
win Hollywood's biggest award. Last year, the film raised $52,527 on
Kickstarter, a crowdsource funding website that has raised over US$100
million to support the creation of independent films.
My weekly technology law column (Toronto Star version, homepage version) notes that the emergence of crowdsource funding - or crowdfunding - points to the
power of the Internet as an important source of financial support for
independent creators, whether film makers, musicians, software
programmers, or authors. Crowdfunding enables creators to raise funds
through small contributions from the public by publicizing their project
using the Internet and social media sites. Crowdfunding success stories
encompass new products, companies, and community initiatives, but
movies have fared particularly well.
Read More ...
TagsShareTuesday March 05, 2013
Kickstarter is the best-known crowdfunding site, having raised huge
sums of money and seen the films funded by its community enjoy
commercial and creative success. By the end of this year, over
100 Kickstarter-funded films will have been released theatrically in
North America. In 2012, three Kickstarter funded films ranked among
the best reviewed films of the year with six films - two
documentaries, a live action short, and three documentary shorts -
garnering Oscar nominations.
The live action short nominee, Buzkashi Boys, was the work of
Montreal-based filmmaker Ariel Nasr. Nasr turned
to help complete his film about Afghanistan and
the community responded with over $27,000 in funding. After the film
received its nomination, Kickstarter users provided another $10,000
to cover travel costs for the stars in the film to travel from Kabul
While Kickstarter attracts the lion share of crowdfunding attention,
Canadians may face some challenges in using the platform due to
payment restrictions. A 2012
commissioned by the Canada Media Fund points to many
homegrown alternatives, yet few have gained much traction. A notable
exception is DocIgnite, a site run by the Hot Docs festival in
Toronto that identifies works-in-progress that would benefit from
The barriers to Canadian crowdfunding extend beyond payment problems
and sparsely populated websites. Legal uncertainty about venturing
into crowdsourced investment has limited the ability of Canadian
creators to tap into their home market.
Canadian sites are typically based on a donation model in which
there is no expectation of financial return, though some creators
offer incentives and gifts in return for support. The United States
has opened the door to an investment model that would allow for
crowdfunding investments that could result in revenue sharing or the
issuance of stock in the project or company.
The Ontario Securities Commission just closed a consultation
on the issue with many potential safeguards being considered. These
include registration requirements, investment limits, disclosure
obligations, and "cooling off" periods that would allow investors to
back out of an investment.
The failure of Canadian crowdfunding sites to keep pace with sites
such as Kickstarter unsurprisingly means that creators are forced to
look south of the border for financial support. Given the many
success stories, Canadian funding agencies may soon begin to factor
crowdsourced support into their programs.
For example, agencies could shift some of their support toward a
matching funds approach that encourages creators to look beyond the
conventional funding mechanisms. By tapping into Kickstarter-style
initiatives, creators could benefit from greater financial
assistance just as the funding agencies use crowdfunding as an
external review process, leveraging the public's willingness to back
a project with their own support.
The government's recent decision to kill its online surveillance
legislation marked a remarkable policy shift. The outcry over the plan
to require Internet providers to install surveillance capabilities
within their networks and to disclose subscriber information on demand
without court oversight sparked an enormous backlash, leading to the
tacit acknowledgment that the proposal was at odds with public opinion.
While many Canadians welcomed the end of Bill C-30, my weekly technology law column (Toronto Star version, homepage version) notes the year-long battle
over the bill placed the spotlight on an ongoing problem with the
current system of voluntary disclosure of subscriber information:
Internet providers and telecom companies disclose customer information
to law enforcement tens of thousands of times every year without court
Read More ...
TagsShareTuesday February 26, 2013
The law permits these disclosures with no reporting requirements or
accountability mechanisms built into the process. According to data
obtained under the Access to Information Act, the RCMP alone made
over 28,000 requests for customer name and address information in
2010. These requests go unreported - subscribers don't know their
information has been disclosed and the Internet providers and
telecom companies aren't talking either.
Bill C-30 would have introduced new reporting requirements for these
disclosures, which might have allowed for insights into what
Internet providers and police are doing with subscriber information.
The proposed reporting requirements needed some tweaking - there was
nothing to stop police from by-passing the reporting requirements by
voluntarily collecting the information - but the commitment to
increased transparency on personal information disclosures was a
long overdue reform.
Those provisions may have died with Bill C-30, but the government
should move quickly to establish a statutorily mandated reporting
system for disclosures of personal information by telecom and
Some Internet companies have voluntarily established transparency
programs. Google was the first to do so, having posted transparency
every six months since 2009. The company's latest
transparency report provides information on requests to remove data
from its search index, copyright complaints, and demands from
governmental authorities for user data.
The most recent Canadian
indicates that the company receives nearly 100 requests
for user data each year from governmental authorities. Over the past
18 months, Google complied with only one-quarter of such requests.
Twitter recently followed Google's example by issuing its own transparency report
While the U.S. had by far the most requests for user data, Canada ranked
third worldwide (tied with the United Kingdom) with 11 requests in
the first six months of 2012. Much like Google, Twitter
complied with only a minority of requests.
While companies such as Google and Twitter voluntarily report
requests for user data, Canada's telecom giants remain silent,
offering no details on the number of requests, the rate of
compliance, or how many Canadians are affected by the disclosures.
In fact, in the months leading up to the introduction of Bill C-30,
Canadian telecom companies formed a secret working group designed to
create an open channel for talks between telecom providers and
government. Rather than focusing on customer privacy, those meetings
included discussions on developing a compensation formula for the
costs associated with disclosing subscriber information.
Both government and the providers should move to address Canada's
telecom transparency gap. The government could revive the disclosure
reporting requirements by including those provisions in either Bill
C-55 (a warrantless surveillance bill tabled on the same day the
government announced that it was killing Bill C-30) or Bill C-12
(the languishing privacy reform bill).
The telecom providers, led by Bell, Rogers, Telus, and Videotron,
should follow the example established by Google and Twitter by
closing the telecom transparency gap. Their customers deserve
regular reports on their disclosure practices as well as aggregate
data on actual disclosures of customer information without court
Hollywood crime dramas are infamous for the
scene when an
accused is taken to a local police station and permitted a single
phone call to
contact a relative or lawyer. While the storyline is myth - there
is no limit
on the number of phone calls available to an accused or detainee -
a recent Alberta
case established a new, real requirement for law
enforcement. After a 19-year
old struggled to find a lawyer using the telephone, the court
ruled that police
must provide an accused with Internet access in order to exercise
Christopher McKay, who faced a driving while
influence charge, told police that he wanted to exercise his right
counsel. McKay’s cellphone and other personal belongings were
placed in a
police locker when he arrived at the station. McKay was told there
toll-free number available to contact a lawyer as well as White
pages that could be consulted. He called the toll-free number but
was unable to
My weekly technology law column (Toronto
Star version, homepage
version) notes that what followed was the product of a
familiar Hollywood movies and reliant on the Internet. McKay
assumed that he
had used his single phone call and did not consider using
(411), which he did not think was a "viable search engine."
Instead, he noted
that Google was his main method to search for information.
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TagsShareTuesday February 19, 2013
Judge Heather Lamoureux of the Provincial Court of Alberta
considered "whether Internet access should form part of police
resources provided to detainees in order to facilitate a reasonable
opportunity to exercise the constitutional right to counsel." After
acknowledging that many teenagers view their smartphone, iPad and
other devices as essential parts of their daily lives, she noted
that Google is the primary source of information for everything from
maps to medical care to access to lawyers.
In fact, the judge conducted a Google search for "Calgary
criminal defence lawyer" and found that within seconds there was
provided with a long list of potential local lawyers. Moreover,
the judge noted that police routinely use the Internet for
investigations and evidence gathering.
The Charter of Rights and Freedoms grants anyone arrested or
detained the right "to retain and instruct counsel without delay
and to be informed of that right." For this judge, the failure to
provide Internet access meant that the Charter rights had been
"In the year 2013 it is the Court's view that all police stations
must be equipped with Internet access and detainees must have the
same opportunities to access the Internet to find a lawyer as they
do to access the telephone book to find a lawyer."
The decision will undoubtedly raise eyebrows among criminal
lawyers and law enforcement officials, yet it continues a growing
trend around the world that elevates Internet access to a
quasi-legal right. In 2010, Finland became the first country in
the world to make broadband Internet access a legal right for all
citizens. A year later, a United Nations report concluded that
disconnecting people from the Internet is a human rights
For police, the decision may have resource implications, since
providing Internet access will be more costly and cumbersome than
pointing to a nearby telephone. It also points to how the Internet
and new technologies force the continued rethinking of
longstanding rules and practices as even Hollywood films may
someday feature police directing an accused to an
Internet-connected computer in order to exercise their right to