As I noted in a post yesterday, Access Copyright has filed its response to the Copyright Board of Canada's series of questions about fair dealing and education in the tariff proceedings involving Canadian post-secondary institutions. Yesterday's post
focused on how Access Copyright has urged the Copyright Board to ignore
the Supreme Court of Canada's ruling on the relevance of licences to a
fair dealing analysis. Today's post examines the collective's response
to the Copyright Board's question on the effect
of the fair dealing legislative change in Bill C-32/C-11. Access
Copyright engages in revisionist history as it seeks to hide its
extensive lobbying campaign that warned that the reforms would permit
mass copying without compensation.
For two years during the debates over the bill, Access Copyright stood
as the most vocal opponent of the expansion of the fair dealing purposes
to include education. Given its frequent public comments and lobbying
efforts on the bill, one would think its response to the Copyright
Board, would be pretty straight-forward. For example, it created a
copyright reform website - CopyrightGetitRight.ca - that warned:
the education exception will permit mass, industrial-scale copying
(equivalent to millions of books every year) without compensation to the
creators and publishers who invested their creativity, skill, money and
effort to produce this content.
Read More ...
TagsShareThursday April 17, 2014
In the 2010 digital economy consultation, Access Copyright told
much the same thing:
New exceptions, which create a sudden increase in uncompensated
uses of works, will result in significant lost sales and millions
of dollars in revenue losses to Canadian content owners from
collective licences alone.
Maureen Cavan, then the executive director of Access Copyright said
Schools won’t have to pay to make reproductions of textbooks and
other materials developed to meet the requirements of provincial
curricula...the education exceptions may permit mass, high-volume
copying (equivalent to millions of books every year) without
compensation to the creators and publishers who invested their
creativity, skill, money and effort to produce this content.
Access Copyright was asked during the Bill C-32 committee hearings
to specify the likely cost. Roanie
Levy, the current Access Copyright executive director, responded
Based on our study, we believe that about $60 million is at risk
as a result of the scope of fair dealing in the education sector,
as well as other education-related exemptions provided for in Bill
C-32. This is revenue that COPIBEC and Access Copyright collects
today for the copying of a chapter here, a page there, for the
distribution of works in class, for the use of works in exams. It
also includes the royalties that certain film distributors collect
from the education sector.
So we're talking about a minimum of $60 million at risk, but
you also have to consider that, when a use or reproduction becomes
free of charge, an increase in that type of reproduction follows.
There will also be a revenue shortfall that will be more difficult
to quantify as a result of a decline in sales of texts intended
Unequivocal positions, which the government rejected by adding
education as a fair dealing purpose with no limitations or
Yet when Access Copyright is now asked about the effect of the
change, it claims that the legislative change that it once warned
would cost $60 million was not a change at all. Instead, its
response to the Copyright Board is that the legislative change did
not change the law but rather codified the existing law as expressed
in the Supreme Court of Canada fair dealing decisions. For example,
includes the following:
In effect, the majority of the Supreme Court of Canada
jurisprudentially expanded the meaning to be afforded "research"
and "private study" to include instruction. This decision expanded
what was once understood to be limited allowable purposes of
private study and research to include copying performed for the
purpose of instruction or education. This expansion of the
allowable fair dealing purposes was later codified in the
amendments to section 29 of the Act. The coming into force of the
statutory amendment in November 2012 did not serve to further
expand fair dealing because the Supreme Court of Canada had
already interpreted the exception as including that purpose.
Simply put, and contrary to the apparent position taken by a
number of educational users that the legislative amendments
further expanded fair dealing in education, the legislative
inclusion of education as an express allowable fair dealing
purpose simply now accords with the jurisprudence.
There are at least two obvious problems with Access Copyright's
attempt to revise history. The first is its record - in the
media, in lobbying campaigns, and before Parliament - that the fair
dealing reform in the bill was a significant change that would "permit
mass, industrial-scale copying (equivalent to millions of books
every year) without compensation to the creators and publishers
The second is that Access Copyright is attempting to deceive the
Copyright Board by suggesting that the legislation came after the
Supreme Court of Canada decisions. As it well knows, the Supreme
Court of Canada decisions actually came two weeks after Bill C-11
received royal assent. Access Copyright deceptively uses the coming
into force date to misleadingly suggest that the law simply codified
the court's decisions, when the court's decisions predated the
legislative reform. Bill C-11 could not have codified the Supreme
Court rulings since the bill passed the House of Commons, the Senate
and received royal assent before the release of the Access Copyright
decision by the Supreme Court.
Why is Access Copyright attempting to revise history? Once
again, the reasons are obvious. First, the government would not have
added education to the fair dealing purposes if it had no meaning at
all. Rather, it was clearly the government's intent to expand
the scope of fair dealing to cover more than research and private
study. Second, Access Copyright is seeking to deflect attention from
the fact that it has already told everyone what the legislation
means. To again repeat its own words from the advocacy site it used
to encourage people to speak out about the bill, the reforms "permit
mass, industrial-scale copying (equivalent to millions of books
every year) without compensation to the creators and publishers."
Access Copyright has filed its response to the Copyright Board of Canada's series of questions about
fair dealing and education in the tariff proceedings involving Canadian
post-secondary institutions. I have several
posts planned about the 40 page response, which continues the copyright
collective's longstanding battle against fair dealing. This one focuses on Access
Copyright's astonishing effort to urge the Copyright Board to reject the
Supreme Court of Canada's clear ruling on the relevance of licensing
within the context of fair dealing.
Access Copyright has frequently argued that the availability of a
licence should trump fair dealing. For example, in the 2001 copyright
consultation it stated:
As a rule, where collective licensing is in place there should be no
exception or limitation to a right for which the holder has a legitimate
interest. As defined in the Act, anytime that a licence to reproduce a
work is available from a collective society within a reasonable time,
for a reasonable price and with reasonable effort, it is commercially
Access Copyright reiterated its position in its 2003 intervention in the
Law Society of Upper Canada v. CCH Canadian case. It argued:
Read More ...
Copibec and Access Copyright submit that the obtaining of
photocopy licences, when they are offered by collective societies
that are authorized by copyright owners to grant licences on their
behalf, is an established and readily available alternative to the
dealing. Where collective societies have created a workable market
for institutional users to obtain licences for the right to
reproduce works protected by copyright, courts should acknowledge
that the reproduction of such works, absent a licence, will
generally affect the potential market for those works, and take
this factor into account in any analysis of whether a dealing is
TagsShareWednesday April 16, 2014
The Supreme Court of Canada proceeded to directly respond to the
Access Copyright argument in its CCH
. The unanimous court ruled:
The availability of a licence is not relevant to deciding
whether a dealing has been fair. As discussed, fair
dealing is an integral part of the scheme of copyright law in
Canada. Any act falling within the fair dealing exception will not
infringe copyright. If a copyright owner were allowed to license
people to use its work and then point to a person's decision not
to obtain a licence as proof that his or her dealings were not
fair, this would extend the scope of the owner's monopoly over the
use of his or her work in a manner that would not be consistent
with the Copyright Act's balance between owner's rights and user's
That is about as clear cut as you can get: Access Copyright directly
raised an argument and the Court unanimously rejected it. So what
does Access Copyright do in its brief to the Copyright Board? Go
right back to the same argument that the Supreme Court rejected:
In the digital age, the availability of a licence – whether from
the rightsholder directly or from the collective that represents
the rightsholder – has to be a consideration as to whether there
is an alternative to the dealing. (The commercialization of works
in a digital environment is done through the issuance of licences
as opposed to the sale of physical copies of works.) In this case,
a licence is clearly available from Access Copyright: the works in
issue are all in Access Copyright’s repertoire. Further, the
evidence filed by Access Copyright establishes that licences for
the exact excerpt of the works that have been copied are available
for purchase from the publishers. Given these alternatives, the
copying purportedly permitted by the Policies is unfair.
Unfortunately, this example is only one of many misleading or
inaccurate claims in the Access Copyright brief. More on its
effort to deceive the board on the timing of the Supreme Court of
Canada's fair dealing decisions and the government's expansion of
fair dealing in Bill C-11 in a post tomorrow.
My post and column
on the expansion of warrantless disclosure under Bill S-4, the
misleadingly named Digital Privacy Act, has attracted some attention and
a response from Industry Canada. The department told iPolitics:
"Companies who share personal information are required to comply with
the rules to ensure that information is only disclosed for the purpose
of conducting an investigation into a contravention of a law or breach
of an agreement. For example, self-regulating professional associations,
such as a provincial law society, may wish to investigate allegations
of malpractice made by a client. When organizations are sharing private
information, the Privacy Commissioner can investigate violations and may
take legal action against companies who do not follow the rules. This
is consistent with privacy laws in British Columbia and Alberta and was
recommended by the Standing Committee Access to Information, Privacy and
The response may sound reassuring, but it shouldn't be.
Read More ...
TagsShareMonday April 14, 2014
First, the Privacy Commissioner of Canada can obviously address
complaints regarding companies that do not follow the rules.
However, the new rules plainly allow warrantless disclosure of
personal information for an investigation into
a breach of
an agreement or a contravention of the laws of Canada or a province
that has been, is being or is about to be committed. This broadly
worded exception will allow companies to disclose personal
information to other companies or organizations without court
Second, the disclosure itself is kept secret from the affected
individual, who is unlikely to complain since they will be unaware
that their information has been disclosed.
Third, allowing a regulated industry to conduct investigations (such
as a provincial law society) is a far narrower issue than the wide
open warrantless approach found in the bill.
Fourth, while the Standing Committee on Access to Information,
Privacy and Ethics may have recommended
a similar reform in 2006, that recommendation was rejected by both
the Conservative government and the Privacy Commissioner of Canada.
The committee recommendation appears to have come from a single
from the Canadian Bar Association. The CBA appeared
before the committee
but was not questioned about the
The CBA proposal focused specifically on personal information
legally available to a party to a legal proceeding. That is much
narrower than the Bill S-4 provision.
Yet even that narrower proposal was rejected by the Conservative
government in its response
to the committee recommendations:
The government notes the Committee's recommendation and
acknowledges that it was made in response to concerns expressed by
certain stakeholders regarding the need to ensure that PIPEDA does
not impede litigation procedures. However, the government
does not share the Committee's view that such an amendment is
necessary at this time.
The Privacy Commissioner of Canada also publicly
the recommendation, which she included among the six
issues about which she had particular concerns:
The Canadian Bar Association recommended that the AB and BC
Acts both provide clarity in regard to information legally
available in a legal proceeding. I do not believe that this issue
has posed any great difficulty over the past five years. The OPC
has stated in complaints that the access provisions of PIPEDA may
be broader than the requirements of discovery, depending on the
breadth of documents relevant to a proceeding.
In other words, Bill S-4 contains an expanded version of a provision
that one group asked for without facing any questions, that the
government rejected when it was proposed, and about which the
Privacy Commissioner of Canada expressed particular concern. In
response, Industry Canada claims that Canadians can file complaints
if the provision is misused, but by definition they will not know
that their personal information has been disclosed.
Earlier this week, the government introduced the Digital Privacy Act (Bill S-4),
the latest attempt to update Canada's private sector privacy law. The
bill is the third try at privacy reform stemming from the 2006 PIPEDA
review, with the prior two bills languishing for months before dying due
to elections or prorogation.
The initial focus
has unsurprisingly centered on the new security breach disclosure
requirements that would require organizations to disclose breaches that
puts Canadians at risk for identity theft. Security breach disclosure
rules are well-established in other countries and long overdue for
Canada. The bill fixes an obvious shortcoming from the earlier bills by
adding some teeth to the disclosure requirements with the addition of
penalties for violations of the law. Moreover, Bill S-4 stops short of
granting the Privacy Commissioner full order making power as is found at
the provincial level, but the creation of compliance orders has some
promise of holding organizations to account where violations occur.
Despite those positive proposed changes to Canadian privacy law, the
bill also includes a provision that could massively expand warrantless
disclosure of personal information.
Read More ...
TagsShareThursday April 10, 2014
The government is already working to expand warrantless disclosure
of subscriber information to law enforcement with Bill C-13 (the
"cyber-bullying bill") including an immunity
from any criminal or civil liability (including
class action lawsuits) for companies that preserve personal
information or disclose it without a warrant. The law currently
entrusts companies with a gatekeeper role since it permits them to
either voluntarily disclose personal information as part of a lawful
investigation or demand that law enforcement first obtain a court
order. The immunity provision makes it more likely that disclosures
will occur without a warrant since the legal risks associated with
such disclosures are removed.
In light of revelations
that telecom companies and Internet companies already disclose
subscriber information tens of thousands of times every year without
a court order, the immunity provision is enormously problematic. Yet
it pales in comparison to the Digital Privacy Act, which would
expand the possibility of warrantless disclosure to anyone, not just
law enforcement. Bill S-4 proposes that:
"an organization may disclose personal information without the
knowledge or consent of the individual... if the disclosure is
made to another organization and is reasonable for the purposes of
investigating a breach of an agreement or a contravention of the
laws of Canada or a province that has been, is being or is about
to be committed and it is reasonable to expect that disclosure
with the knowledge or consent of the individual would compromise
Unpack the legalese and you find that organizations will be
permitted to disclose personal information without consent (and
without a court order) to any organization that is investigating a
contractual breach or possible violation of any law. This applies
both past breaches or violations as well as potential future
violations. Moreover, the disclosure occurs in secret without the
knowledge of the affected person (who therefore cannot challenge the
disclosure since they are not aware it is happening).
When might this apply?
Consider the recent copyright
in which Voltage Pictures sought an order requiring
TekSavvy to disclose the names and addresses of thousands of
subscribers. The federal court established numerous safeguards to
protect privacy and discourage copyright trolling by requiring court
approval for any demand letters being sent to subscribers. If Bill
S-4 were the law, the court might never become involved in the case.
Instead, Voltage could simply ask TekSavvy for the subscriber
information, which could be legally disclosed (including details
that go far beyond just name and address) without any court order
and without informing their affected customer.
In fact, the potential use of this provision extends far beyond
copyright cases. Defamation claims, commercial battles, and even
consumer disputes may all involve alleged breaches of agreements or
the law. While the organization with the personal information
(telecom companies, social media sites, local businesses) might
resist disclosing information without a court order, the law would
not require them to do so.
The resulting framework from C-13 and S-4 is stunning from an
- organizations could disclose subscriber or customer personal
information without a court order to law enforcement with full
legal immunity from liability
- organizations could disclose subscriber or customer personal
information without a court order to any other organization
claiming investigation of an actual or potential contractual
breach or legal violation
- the disclosures would be kept secret from the affected
- the disclosing organizations would be under no obligation to
report on their practices or past disclosures
The government claims
the Digital Privacy Act "will provide new protections for Canadians
when they surf the web and shop online". What it does not say that
the same bill will open the door to massive warrantless disclosure
of their personal information.
In my first post on Digital Canada 150,
Canada's digital strategy, I argued that it provided a summation of
past accomplishments and some guidance on future policies, but that it was
curiously lacking in actual strategies and goals. Yesterday I reviewed how Canada's universal broadband access target lags behind much of the OECD (Peter Nowak characterizes
the target as the Jar Jar Binks of the strategy). The problems with
Digital Canada 150 extend far beyond connectivity, however. In
comparing the Canadian strategy with countries such as Australia and the
United Kingdom, it becomes immediately apparent that other countries offer far
more sophisticated and detailed visions for their digital futures. While
there is no requirement that Canada match other countries on specific
goals, it is disappointing that years of policy development - other countries were 5 to 10 years ahead of Canada - ultimately
resulted in a document short on strategy, specifics, and analysis.
For example, compare the clarity of goals between Canada and the Australia strategy:
Read More ...
TagsShareWednesday April 09, 2014
By 2020, Australia will rank in the top 5 OECD countries in
the portion of households that connect to broadband at home.
|"Over 98% of all Canadians will have access
to high-speed Internet at 5 megabits per second (Mbps) - a
rate that enables e-commerce, high-resolution video,
employment opportunities and distance education - providing
rural and remote communities with faster, more reliable
|By 2020, Australia will rank in the top 5
OECD countries in the portion of businesses and
not-for-profits using online opportunities to drive
productivity improvements, expand their customer base, and
enable jobs growth
|"Canadian companies, large and small, will
use digital tools to boost productivity, develop their
businesses and capture growing markets and home and abroad."
|By 2020, the majority of Australian
households, businesses, and other organizations will have
access to smart technology to better manage their energy
|No discussion of energy use.
|By 2020, 90% of high prority consumers (older
Australians, babies, etc.) will have access to individual
electronic health records.
|No discussion of health records. Closest goal
is "Canada will be one of the global leaders in applying
'big data' to change how we think about and carry out health
care, research and development, as well as the myriad of
activities of business and government."
|By 2020, Australia schools will have
connectivity to develop and collaborate on innovative and
flexible educational services and resources to extend online
learning resources to the home and workplace
|No discussion of schools (only reference is
to support for Computers for Schools program).
|By 2020, Australia will have at least doubled
its level of teleworking so that at least 12% of Australian
employees report having teleworking arrangements with their
|No discussion of teleworking.
|By 2020, 80% of Australians will choose to
engage with the government through the Internet or other
type of online service.
|"The Government of Canada will be a leader in
using digital technologies to interact with Canadians,
making it simpler and quicker to access services and
|By 2020, gap between households and
businesses in capital cities and those in regional areas
will have narrowed significantly
|No discussion of urban vs. rural divide.
The Canadian strategy simply ignores many key areas commonly found
in digital strategies such as telework, telehealth, and
education. Moreover, even where the strategy addresses similar
issues there are few targets that can be used to measure success.
Instead, the Canadian strategy frequently talks generically about
being a "leader".
Not only does the Australia strategy establish measurable goals, it
openly discusses where the country stands and why action is needed.
For example, the strategy examines Internet usage data, noting that:
"About 26 per cent of Australians 15 years or over did not use
the internet in 2008–09. This figure is much higher for retired
persons, low-income earners,
Indigenous Australians and those
living in remote areas."
There are similar statistics available in Canada. 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.
Last year, the Australian government released a 152
on its strategy, identifying dozens of actions
that had been taken or that were underway. In addition to
cybercrime initiatives similar to those in Canada, actions included
developing a new curriculum for technologies and promoting the
adoption of cloud computing in Australia. The update also
provided data on whether the government was meeting its target
The United Kingdom's Digital
report, which dates back to 2009 and is 245 pages
length (roughly 10 times the size of Digital Canada 150), is even
more extensive. For example, on the issue of connectivity, it
discusses both access and affordability, recognizing that access
alone is insufficient. To address affordability, it proposed a 300
million pound Home Access program for low income families. Digital
Britain also discusses the future of its public broadcaster, the
BBC, to address how it can remain relevant in the online world.
There is no reference to the CBC in Digital Canada 150.
Digital Britain also reaches into issues such as health, transport,
energy, and education, areas largely ignored in Digital Canada 150.
Moreover, Digital Britain has been followed by Digital
, both focused specifically on enhancing government
Digital Canada 150 need not be identical to the strategies found in
Australia, the United Kingdom or any of the other myriad of
countries that have released digital strategies. Yet after years of
waiting, it is not unreasonable to expect something more than 26
pages that is focused primarily on past accomplishments, establishes
few measurable goals, and ignores crucial areas such as
affordability of computers and connectivity, health care, energy,
The release of Digital Canada 150,
the federal government's long-awaited digital strategy, included a
clear connectivity goal: 98 percent access to 5 Mbps download speeds by
2019. While the government promises to spend $305 million on rural
broadband over the next five years and touts the goal as "a rate that
enables e-commerce, high-resolution video, employment opportunities and
distance education", the reality is that Canada now has one of the least
ambitious connectivity goals in the developed world.
Just how badly does the government's connectivity ambitions compare to
other OECD countries? Consider just some of the target speeds from other
countries as compiled three years ago by the OECD:
Read More ...
TagsShareTuesday April 08, 2014
|100% access to 25 Mbps
|100% premises, 93% homes, schools and
business to 100 Mbps
|100% access to 100 Mbps
|99% within 2 km of network permitting 100
|75% access to 50 Mbps
|100% household access to 100 Mbps
|100% access to 30 Mbps
|100% access to 1 Gbps
|100% access to 30 Mbps
|90% access to 100 Mbps
|100% access to 4 Mbps
Not only is the target speed low compared to many other countries
(the U.S. being the notable exception), but the goal of universal
broadband access comes years after other countries put similar
policies into place. For example, other countries with universal
access targets include:
|Universal Access Target Year
|2015 (rural speeds at least 50% of city
The Canadian target of 2019 is later than all of these countries,
some by more than a decade. In fact, the government's target
date is far later than the Canadian
Radio-television and Telecommunications Commission
, which set
a 2015 deadline with the same speed goal. Unfortunately, the lack of
ambition is not limited to connectivity. More on how the Canadian
digital strategy pales in comparison to peer countries by largely
omitting key issues such as affordability, education, tele-health,
and energy in a post tomorrow.
Four years after the Canadian government first announced plans to
develop a digital economy strategy, Industry Minister James Moore
traveled to Waterloo, Ontario, Friday for the release of Digital Canada
150. The long-awaited strategy document identifies five key areas for
policy development: connecting Canadians, protecting the online
environment, developing commercial opportunities, digital government,
and Canadian content.
My weekly technology law column (Toronto Star version, homepage version) argues the release of Digital Canada 150 succeeds on at least three levels.
First, it puts to rest the longstanding criticism that the government is
uninterested in digital issues. Moore quickly emerged as the
government’s digital leader after taking the reins at Industry Canada,
promptly focusing on wireless competition, spam regulation, and now a
digital strategy. After years of complaints that the digital strategy
issue was Ottawa's equivalent of the "Penske File" - all talk and no
action - Moore has acted.
Read More ...
Second, Digital Canada 150 demonstrates that the federal government
has been more engaged on digital issues in recent years than is
generally appreciated. Indeed, much of the document is presented as
a report card, with the requisite check boxes on numerous
legislative initiatives (copyright and trademark reform, spam),
regulatory developments (wireless competition), and program funding
(rural broadband, digital media). The message is clear: the broader
strategy document may have been missing, but digital issues were not
Third, Moore's document provides some guidance on future policy
development. While there are few surprises, there is confirmation
that the government plans to introduce private sector privacy
reform, invest in rural broadband, introduce regulations on
crypto-currencies, continue its welcome emphasis on open data, and
push through lawful access legislation that has been framed as a
Despite these successes, Digital Canada 150 ultimately suffers from
some notable omissions. For a strategy document, it is curiously
lacking in actual strategy. The government updates Canadians on what
it has done and provides some insight into what it plans to do, but
there are few new strategies articulated.
Measurable targets and objectives typically guide strategy
documents, yet there are not many to be found in Digital Canada 150.
In fact, the most obvious target - 98 percent broadband access of 5
Mbps - is slower than many comparable targets around the world and
comes years later than the Canadian Radio-television and
Telecommunications Commission's stated goal for the same level of
Further, the document never links together digital policies with
other government initiatives in a strategic manner. The
government has emphasized its international trade agenda, but there
is no effort to link trade agreements with a strategy to bring
Canadian business online to market and sell to a global marketplace.
Similarly, Canadian foreign policy has adopted strong positions
against authoritarian regimes, yet there is no strategy that
combines that policy with one that prohibits the export of
censorship technologies to those countries that repress free speech.
Digital Canada 150 is also largely silent on the issue of investing
in the online environment. The recent spectrum auction generated
billions of dollars in revenue, but there are seemingly no plans to
directly invest the "digital dividend" on digital issues.
Most disappointingly, Digital Canada 150 lacks a big picture goal or
target that might have made the whole greater than the sum of its
parts. There was no shortage of possibilities such as a
national digital library to revolutionize access in schools and
communities, a rethinking of Canadian surveillance policy so that
mounting fears of widespread surveillance of individuals might be
addressed, structural separation of Internet providers or a plan to
join forces with the private sector to bring affordable access and
computing equipment into every home in Canada.
These were the types of initiatives that might have captured the
public's imagination and put an identifiable face on a broader
strategy document. Instead, four years of waiting has yielded a
modest vision of Canada’s digital future that frequently focuses
more on what the government has done than on where it wants to go.
Moore deserves credit for bringing the strategy to the finish line,
but given the remarkable possibilities created by the Internet and
new technologies, many Canadians were likely hoping for more.
TagsShareSaturday April 05, 2014
The U.S. Trade Representative issued its annual Foreign Trade Barrier Report
on Monday. In addition to identifying the geographical indications
provisions in the Canada - EU Trade Agreement, telecom foreign ownership
rules, and Canadian content regulations as barriers, the USTR discussed
regulations on cross-border data flows. I wrote about the issue recently, noting that the Canadian government restricted access to its single email initiative to Canadian-based hosting.
The USTR picks up on the same issue in its report:
The strong growth of cross-border data flows resulting from
widespread adoption of broadband-based services in Canada and the United
States has refocused attention on the restrictive effects of privacy
rules in two Canadian provinces, British Columbia, and Nova Scotia.
These provinces mandate that personal information in the custody of a
public body must be stored and accessed only in Canada unless one of a
few limited exceptions applies. These laws prevent public bodies such as
primary and secondary schools, universities, hospitals,
government-owned utilities, and public agencies from using U.S. services
when personal information could be accessed from or stored in the
The Canadian federal government is consolidating information
technology services across 63 email systems under a single platform. The
request for proposals for this project includes a national security
exemption which prohibits the contracted company from allowing data to
go outside of Canada. This policy precludes some new technologies such
as "cloud" computing providers from participating in the procurement
process. The public sector represents approximately one-third of the
Canadian economy, and is a major consumer of U.S. services. In today’s
information-based economy, particularly where a broad range of services
are moving to "cloud" based delivery where U.S. firms are market
leaders; this law hinders U.S. exports of a wide array of products and
This issue bears watching given the growing momentum for localized data
hosting conflicting with provisions in the Trans Pacific Partnership
that would seek to restrict such provisions.TagsShareWednesday April 02, 2014
The lawful access fight of 2012, which featured then-Public Safety
Minister Vic Toews infamously claiming that the public could side with
the government or with child pornographers, largely boiled down to
public discomfort with warrantless access to Internet subscriber
information. The government claimed that subscriber data such as name,
address, and IP address was harmless information akin to data found in
the phone book, but few were convinced and the bill was ultimately
shelved in the face of widespread opposition.
My weekly technology law column (Toronto Star version, homepage version) notes the government resurrected the lawful access legislation last year as a
cyber-bullying bill, but it has been careful to reassure concerned
Canadians that the new powers are subject to court oversight. While it
is true that Bill C-13 contains several new warrants that require court
approval (albeit with a lower evidentiary standard), what the government
fails to acknowledge is that telecom companies and Internet providers
already hand over subscriber data hundreds of times every day without
court oversight. In fact, newly released data suggests that the
companies have established special databases that grant law enforcement
quick access to subscriber information without a warrant for a small
Read More ...
The latest data comes from a government response to NDP MP Charmaine
Borg's effort to obtain information on government agencies requests
for subscriber data. While many agencies refused to disclose the
relevant information, Canada Border Services Agency revealed that it
had made 18,849 requests in one year for subscriber information
including geo-location data and call records.
The CBSA obtained a warrant in 52 instances with all other cases
involving a simple request without court oversight. The telecom and
Internet providers fulfilled the requests virtually every time -
18,824 of 18,849 - and the CBSA paid a fee of between $1.00 and
$3.00 for each request.
The CBSA revelations follow earlier information obtained under the
Access to Information Act that the RCMP alone made over 28,000
requests for subscriber information in 2010 without a warrant. These
requests go unreported - subscribers don't know their information
has been disclosed and the Internet providers and telecom companies
aren't talking either.
The recent disclosures also reveal that the telecom companies have
established law enforcement databases that provide ready access to
subscriber information in a more efficient manner. For example, the
Competition Bureau reports that it "accessed the Bell Canada Law
Enforcement Database" 20 times in 2012-13.
The absence of court oversight may surprise many Canadians, but the
government actively supports the warrantless disclosure model. In
2007, it told the Privacy Commissioner of Canada that an exception
found in the private sector privacy law to allow for warrantless
disclosure was "designed to allow organizations to collaborate with
law enforcement and national security agencies without a subpoena,
warrant or court order." The cyber-bullying bill further supports
the warrantless disclosure model since it contains a provision that
grants Internet providers and telecom companies full immunity from
any civil or criminal liability for voluntarily disclosing
While much of the warrantless disclosure data remains shrouded in
secrecy - many government departments refuse to divulge details
about their practices and the telecom companies and Internet
providers have declined requests to come clean - the latest
revelations confirm fears that subscriber information is disclosed
tens of thousands of times every year without court oversight.
The law may grant the companies the right to disclose subscriber
information without a warrant, but the pervasive warrantless
disclosure is still deeply troubling and represents an abdication of
their responsibility to safeguard the privacy interests of their
TagsShareTuesday April 01, 2014
The debate over Bill C-13, the government's latest lawful access bill,
is set to resume shortly. The government has argued that the
bill should not raise concerns since new police powers involve court
oversight and the mandatory warrantless disclosure provisions that raised
widespread concern in the last bill have been removed. While that is the government's talking points, I've posted
on how this bill now includes incentives for telecom companies and
other intermediaries to disclose subscriber information without court oversight since it grants
them full civil and criminal immunity for doing so. Moreover, newly released
data suggests that the telecom companies don't seem to need much of an
incentive as they are already disclosing subscriber data on thousands of
Canadians every year without court oversight.
This week, the government responded to NDP MP Charmaine Borg's request
for information on government agencies requests to telecom providers for
customer information. The data reveals that the telecom companies have
established law enforcement databases that provides ready access to
subscriber information. For example, the Competition Bureau reports
that it "accessed the Bell Canada Law Enforcement Database" 20 times in
2012-13. The wording may be important, since the Bureau indicates that
it accessed the information, rather than Bell provided it. It is not
clear what oversight or review is used before a government agency may
access the Bell database.
Read More ...
The Canada Border Services Agency report featured the biggest
numbers with 18,849 requests in one year for subscriber information
including geolocation data and call records. The CBSA obtained a
warrant in 52 cases with all other cases involving a simple request
without court oversight. The telecom providers fulfilled the
requests virtually every time - 18,824 - and the CBSA paid between
$1.00 and $3.00 per request. The RCMP presumably has far higher
numbers, but it says that it does not keep track in a centralized
database (an earlier access to information request revealed even
While this data provides only a glimpse at warrantless disclosure of
subscriber information, it confirms fears that telecom companies
provide such information tens of thousands of times every year
without court oversight (and perhaps without even internal oversight
if access to a database is granted). The law may grant telecom
companies the right to disclose subscriber information without a
warrant, but the pervasive warrantless disclosure is deeply
troubling and represents an abdication by telecom providers of their
responsibility to safeguard the privacy of their subscribers.
TagsShareWednesday March 26, 2014