The introduction of new technologies invariably leads to a plethora of new legal concerns. For instance, new surveillance technologies lead to doubts about the adaptability of privacy law, while rising online fraud generates questions about the effectiveness of cybercrime legislation. At the same time, the widespread use of the Internet places the spotlight on the legal rights and obligations of Internet service providers.
In recent years several Canadian experts have carried out innovative research to identify some solutions. Ian Kerr of the University of Ottawa has studied the trust relationship between consumers and their ISPs, Steve Penney of the University of New Brunswick has focused on cybercrime, Kerry Rittich of the University of Toronto has examined workplace concerns in the new economy, Darin Barney of McGill University has written on the impact of digital networks on privacy rights, and Teresa Scassa of Dalhousie University has tackled federal privacy legislation.
The common link between these research projects is that the Law Commission of Canada, an independent law reform agency that advises Parliament on how to improve and modernize Canada’s laws, has provided the necessary financial support.
Last week, the Conservative government announced that it plans to eliminate funding for the LCC, a course of action that will likely lead to its closure within the next few months. Ottawa justified the cut on its need to be more efficient, yet the $4 million savings comes at a huge cost to all Canadians.
The economic and societal benefits associated with cutting-edge, independent research are widely recognized by economists and policy makers. Canadian technology leaders such as Nortel and Research in Motion were developed within research environments while the groundwork for many of Canada’s laws and policies similarly originate from academic settings.
Although much of this work occurs within Canada’s universities, the federal government also generates a significant body of research with a steady stream of policy papers, consultation documents, and background reports. Ottawa may believe this source can replace the LCC, however, there remains concern that some of the research may not be independent but rather undertaken primarily to support a particular policy objective or point of view.
Moreover, government has limited capacity to conduct comprehensive research analysis on its own, leaving it increasingly dependent on outside contractors or academic studies to support its policy work. For example, the Office of the Privacy Commissioner of Canada has established a contributions program designed to fund research into privacy issues. The program, which is now in its third year, has emerged as the country's most important supporter of privacy research, generating results that should prove invaluable as a Parliamentary committee considers reforms to the national privacy law later this fall.
Without programs such as these, the lack of Canadian research capacity frequently becomes glaringly apparent. The Telecommunications Policy Review Panel, which released its exhaustive report on the state of telecommunications law in Canada earlier this year, took specific note of the lack of research expertise in the telecommunications policy arena in Canada. While Maxime Bernier, the Minister of Industry, has focused on the Panel's recommendation for deregulation, the need for policy research support should not go unaddressed.
Other countries have identified the need to support independent legal research by establishing their own law reform commissions. The Australian Law Reform Commission was created in 1975 as an independent statutory corporation and in recent years has released studies on gene patenting, the protection of human genetic information, as well as made public a major study on privacy that served as the basis for that country's national privacy law framework.
The South African Law Reform Commission has also been active on similar issues with ongoing studies on privacy and data protection as well as the use of electronic equipment in courtrooms.
Few would disagree with the notion that high quality, independent research is an important part of the future competitiveness of Canadian industry and government policy. The Law Commission of Canada had begun to pave the way for a new round of relevant research projects including an examination of the legal implications of online citizen journalism. Last week's gutting of the LCC funding therefore represents a significant step backward for research in all legal areas with negative repercussions that will likely to extend to the Canadian technology world.
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 firstname.lastname@example.org or online at www.michaelgeist.ca.