Columns

Canadians Deserve Better ISP Transparency

My weekly law and technology column (Toronto Star version, Ottawa Citizen version, homepage version) picks up on last week's Leger Marketing survey that found that Canadians are generally unaware of net neutrality issues, yet, when informed of the concern, strongly support the principles that provide the foundation for net neutrality legislation.

Most Canadians can hardly be faulted for being unaware of net neutrality since ISPs have done their best to keep the issue off the public's radar screen. While solving the net neutrality issue will not happen overnight, addressing the lack of transparency associated with Internet services would go a long way toward creating a more informed debate.

October 9, 2007 — 5 comments — Columns

The Future of Privacy: Privacy Threats No Longer “Terra Incognita”

Last week the privacy world gathered in Montreal for the most important global privacy conference on the calendar. The International Data Protection and Privacy Commissioner's conference brings together hundreds of privacy commissioners, government regulators, business leaders, and privacy advocates who spend three days grappling with emerging issues. I was privileged to be asked to provide some concluding remarks in the final plenary and my weekly technology law column (Toronto Star version, Ottawa Citizen version, homepage version) is a shortened version of that address.

This year's conference theme was "Terra Incognita," a reference to the unknown lands that typify the fear of the unknown in a world of rapidly changing technologies that challenge the core principles of privacy protection. Yet despite a dizzying array of panels on new technologies such as ubiquitous computing, radio frequency identification devices (RFID), and nanotechnology, it was a reference by U.S. Secretary of Homeland Security Michael Chertoff to a simple fingerprint that struck the strongest chord.

Canada last hosted the conference in 1996 and it quickly became apparent that privacy has become virtually unrecognizable in the intervening eleven years. The technological challenges were on display throughout the event including eye-opening presentations on the privacy impact of popular children's websites such as Webkinz and Neopets, on genetic innovation that is pushing the boundaries of science without regard for privacy, and on the continual shift toward tiny devices that can be used to collect and disclose personal information.

The conference placed the spotlight the growing "toolkit" of responses, including privacy audits of both public and private sector organizations, privacy impact assessments that are used to gauge the effect of new regulations and corporate initiatives, trust seals that include corporate compliance programs, and emphasis on global cooperation in a world where personal data slips effortlessly across borders. While the effectiveness of these measures has improved in recent years, there remained a pervasive sense that these responses are inadequate.

October 2, 2007 — 2 comments — Columns, Conferences, Keynote Speaking, Video

Navigating Canada’s Copyright Conflicts

The Hill Times runs a special op-ed (HT version (sub required), homepage version) I've written on the political challenges the government faces on copyright reform. I note that in a sure sign of an impending throne speech, copyright lobby groups are out in full force calling on the government to prioritize intellectual property protection in its fall legislative agenda. Despite efforts to put forward a united front, however, what is readily apparent to those close to the process is that copyright reform is rife with conflicts that create a significant political risk and require the expenditure of enormous political capital.

The recent revelations about a potential conflict of interest within the Canadian Heritage Copyright Policy Branch are certainly the most obvious manifestation of conflict concerns. Although perceived conflict issues in this area are nothing new, the existence of a personal relationship between the government’s head of copyright policy and Hollywood's top Canadian lobbyist at a time when the government is pursuing a copyright reform bill raises uncomfortable questions about who knew what and when within Canadian Heritage.

Yet focusing exclusively on this form of conflict would be a mistake, since conflicted agendas, policies, and stakeholders present a more treacherous minefield. These include:

October 1, 2007 — 2 comments — Columns

Broadcasting Policy for a World of Abundance

My regular technology law column (Toronto Star version, Ottawa Citizen version, homepage version) focuses on the recent firestorm sparked by the broadcasting reform report commissioned by the CRTC and written by Laurence Dunbar and Christian Leblanc. The Canadian Association of Broadcasters characterized the report's recommendations as an assault on the foundation of Canadian broadcasting. In this instance, the broadcasters are correct. The report is indeed an assault on the regulatory foundation of Canadian broadcasting – one that is long overdue.

Canadian broadcast regulation was designed for a world of scarcity where broadcast spectrum and consumer choice was limited. This led to a highly regulated environment that used various policy levers to shelter Canadian broadcasters from external competition, limited new entrants, and imposed a long list of content requirements and advertising restrictions. As a result, a dizzying array of regulations kept the entry of new broadcast competitors to a minimum, enshrined genre protection so that Canadians were treated to domestic versions of popular channels such as HBO and ESPN, and firmly supported simultaneous substitution, a policy that allows Canadian broadcasters to simulcast U.S. programming but substitute their own advertising.

Yet today's broadcasting environment is no longer one of scarcity, but rather one of near limitless abundance as satellite, digital channels, and the Internet now provide instant access to an unprecedented array of original content.

September 25, 2007 — 1 comment — Columns

Misleading RCMP Data Undermines Counterfeiting Claims

My weekly Law Bytes column (Toronto Star version, Ottawa Citizen version, homepage version) focuses on the growing attention paid to counterfeiting and the use of misleading data as part of the debate. The RCMP has been the single most prominent source for claims about the impact of counterfeiting in Canada since its 2005 Economic Crime Report pegged the counterfeiting cost at between $10 to 30 billion dollars annually. The $30 billion figure has assumed a life of its own with groups lobbying for tougher anti-counterfeiting measures regularly raising it as evidence of the dire need for Canadian action. U.S. Ambassador to Canada David Wilkins cited the figure in a March 2007 speech critical of Canadian law, while the Canadian Anti-Counterfeiting Network, Canada's leading anti-counterfeiting lobby, reported in April that the "RCMP estimates that the cost to the Canadian economy from counterfeiting and piracy is in the billions."

Yet despite the reliance on this figure – the Industry Committee referenced it in its final report – a closer examination reveals that the RCMP data is fatally flawed. Responding to an Access to Information Act request for the sources behind the $30 billion claim, Canada's national police force last week admitted that the figures were based on "open source documents found on the Internet." In other words, the RCMP did not conduct any independent research on the scope or impact of counterfeiting in Canada, but rather merely searched for news stories on the Internet and then stood silent while lobby groups trumpeted the figure before Parliament.

A careful examination of the documents relied upon by the RCMP reveal two sources in particular that appear responsible for the $30 billion claim.

September 18, 2007 — 25 comments — Columns