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The Online Streaming Act in Jeopardy: U.S. Takes Aim at the CUSMA Cultural Exemption With Threats of Bill C-11 Retaliation
From the moment it was first introduced as Bill C-10 in the fall of 2020, it was readily apparent that mandated payments by foreign streaming services to support Canadian content would face a trade backlash with the U.S., with the real prospect of trade retaliation. In fact, I wrote about the issue days after the bill was tabled, warning that an uneven playing field for benefits – foreign companies required to contribute but banned from benefiting – was a risky approach. Those warnings were dismissed by the government, cultural lobby groups, and supporters of the bill who assured critics that Canada’s cultural exemption under CUSMA provided a shield against U.S. retaliation.
It took years for Bill C-10 – later Bill C-11 – to become law as the Online Streaming Act, but now the bill has come due. Weeks after the U.S. Trade Representative (USTR) specifically identified Canadian digital laws as a target in CUSMA renegotiations, House Republicans introduced the Protecting American Streaming and Innovation Act, a bill that would mandate an investigation into the Canadian law and open the door not only to trade retaliation but also to a change in how the cultural exemption is applied.
The Hidden Lawful Access Tradeoff: How Bill C-22 Lowers the Evidentiary Standards for Police Access to Subscriber Information
The return of lawful access in Bill C-22 has unsurprisingly focused on the government’s significant shift on warrantless access to subscriber information, which was the headline concern with Bill C-2, the previous lawful access proposal. As noted in my initial summary of the bill, Bill C-22 establishes court oversight for subscriber information with the warrantless access piece limited to requiring telecom companies to confirm whether they provide service to a given individual. That is a positive step, but there is a tradeoff, namely that the evidentiary standard needed to obtain an order for access to subscriber information is actually being lowered.
The Lawful Access Privacy Risks: Unpacking Bill C-22’s Expansive Metadata Retention Requirements
Much of the discussion around the new lawful access bill (Bill C-22) has focused on provisions that improved upon Bill C-2, notably the decision to scrap the warrantless information demand power by requiring judicial oversight for access to subscriber information. Yet despite that improvement, there remain serious privacy concerns with the government’s latest iteration of lawful access. Buried in the second half of Bill C-22 is a provision granting the government the power to require “core providers” to retain categories of metadata, including transmission data, for up to one year. This is mandatory metadata retention that would require telecom and electronic service providers to store information about the communications of all their users, regardless of whether those users are suspected of anything. It is one of the most privacy invasive tools a government can deploy and the international experience suggests that there are major privacy risks.
Government Enacts Political Party Anti-Privacy Rules With Bill C-4 Royal Assent Sprint
I’ve written extensively about Bill C-4 and the government’s effort to bury political party privacy rules that largely eliminate privacy obligations for federal political parties and apply the new rules retroactively to May 2000. This past week’s Law Bytes podcast featured Senate hearings on the bill, which ultimately resulted in an amendment to require the government to establish actual privacy obligations within three years. The government yesterday rejected the amendment and the bill received royal assent in a lightning-fast process.
A Tale of Two Bills: Lawful Access Returns With Changes to Warrantless Access But Dangerous Backdoor Surveillance Risks Remain
The decades-long battle over lawful access entered a new phase yesterday with the introduction of Bill C-22, the Lawful Access Act. This bill follows the attempt last spring to bury lawful access provisions in Bill C-2, a border measures bill that was the new government’s first piece of substantive legislation. The lawful access elements of the bill faced an immediate backlash given the inclusion of unprecedented rules permitting widespread warrantless access to personal information. Those rules were on very shaky constitutional ground and the government ultimately decided to hit the reset button on lawful access by proceeding with the border measures in a different bill.
Lawful access never dies, however. Bill C-22 cover the two main aspects of lawful access: law enforcement access to personal information held by communication service providers such as ISPs and wireless providers and the development of surveillance and monitoring capabilities within Canadian networks. In fact, the bill is separated into two with the first half dealing with “timely access to data and information” and the second establishing the Supporting Authorized Access to Information Act (SAAIA).
Recent Posts
The Law Bytes Podcast, Episode 262: Zack Shapiro on the Claude AI Native Law Firm 
The Online Streaming Act in Jeopardy: U.S. Takes Aim at the CUSMA Cultural Exemption With Threats of Bill C-11 Retaliation 
The Hidden Lawful Access Tradeoff: How Bill C-22 Lowers the Evidentiary Standards for Police Access to Subscriber Information 
The Lawful Access Privacy Risks: Unpacking Bill C-22’s Expansive Metadata Retention Requirements 
The Law Bytes Podcast, Episode 261: Ian Goldberg on the Privacy Risks of Age Assurance Technologies
