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Crystal Ball Gazing at the Coming Year in Tech Law

Appeared in the Toronto Star on January 9, 2006 as Tech Laws We Need

Predicting the future of Canadian technology law is challenging at the best of times, but during an election campaign prognostications are admittedly likely to be about as accurate as a coin flip. With that caveat in mind, I offer up likely developments in the coming year gleaned from a pair of crystal balls – one that assesses what Canada needs and the other what we are likely to get.

1.    The Supreme Court of Canada

The Supreme Court decision we need – The Supreme Court recently agreed to hear an appeal of the British Columbia Court of Appeal decision involving the constitutionality of Elections Act provisions that prohibit the posting of voting results online before the polls have closed nationwide.  Given the election is in two weeks, the answer we need would be better now, not in early 2007.

The Supreme Court decision we will get – The court heard oral arguments in Robertson v. Thompson Corp. in early December and a decision is expected before the summer.  The case focuses on the copyrights of freelance writers and is being closely watched by media companies across the country. Look for the court to again affirm its commitment to a balanced approach to copyright law.

2.    The CRTC

The CRTC hearings we need – With Internet service providers racing toward the creation of a two-tiered Internet that involves blocking certain content and applications, Canada' s telecommunications regulator needs to conduct hearings on the future of a “net neutrality” principle that would compel ISPs to treat all bits equally on public networks.

The CRTC hearings we will get – The CRTC will hold hearings on the implementation of the do-not-call legislation, which received royal assent just hours before the election call.  Already eviscerated with a long list of exceptions, look for lobby groups to use the hearings to push for an additional exception for hundreds of thousands of non-profit groups.

3.    Privacy and Security

The Privacy law we need – 2005 was labeled the worst year ever for security breaches, with more than 50 million people in North America directly affected by the dozens of breaches that placed their personal information at risk.  The growing awareness of security vulnerabilities stems from U.S. laws that compel companies to inform customers that their information was subject to a breach.  Similar legislation is needed in Canada.

The Privacy law we will get – The government introduced its so-called “lawful access” package last fall. While the expression “lawful access” sounds benign the goal isn' t; it would give intrusive new powers of surveillance to law-enforcement authorities without needed judicial oversight.

Canadians can expect to see it revived regardless of which party forms the next government. While lawful access is better characterized as anti-privacy legislation, its re-emergence will force the privacy community to rally around appropriate oversights to guard against privacy abuse.

4.    Internet Law

The Internet law we need – The National Task Force on Spam report recommended last May that the government introduce sweeping new anti-spam legislation that included tough new penalties to ensure that Canada does not emerge as a haven for large spamming organizations.  The election intervened before Industry Minister David Emerson provided his official response to the Task Force report.

The Internet law we will get – With spam and spyware an ongoing problem, the new government will introduce anti-spam legislation in the spring.  Look for potential repeat of the do-not-call embarrassment as lobbyists move in quickly to water down the tough measures found in the bill.

5.    Copyright Law

The Copyright law we need – Following the Sony rootkit incident, in which thousands of Canadians learned that their personal computers were rendered vulnerable to hackers due to copy-protection inserted into dozens of CDs, it has become increasing clear that Canada needs new consumer protection legislation that guards against the misuse of such technologies, known as technological protection measures.

The Copyright law we will get – The federal government will re-introduce Bill C-60, its copyright reform package, this spring.  While the bill gets a new name, many of the key provisions, including those focused on ISPs and the recording industry, are unlikely to change.

6.    International Law

The International treaty we need – The World Intellectual Property Organization will continue discussions on its “development agenda” in the coming year with the desperate need for acceleration on an Access to Knowledge Treaty. These discussions mark a turning point for WIPO, as dozens of developing world countries challenge the status quo on intellectual property protections that limit access to medicines and cutting-edge research.    

The International treaty we will get – Under intense pressure from the United States, WIPO will seek to put the finishing touches on a Broadcasting Treaty that provides significant new rights to broadcasters and webcasters.  Although there is little evidence that the treaty is needed (a slimmer treaty on piracy would address most legitimate concerns), supporters hope to close out 2006 with a near-final text in hand.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at or online at

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