Columns

Copyrighted button by ntr23 (CC BY-NC-SA 2.0) https://flic.kr/p/7jvE7i

Notice the Difference? New Canadian Internet Copyright Rules for ISPs Set to Launch

The longstanding debate over how Internet providers should respond to allegations of copyright infringement by their subscribers was resolved in Canada several years ago with the adoption of a “notice and notice” system. Unlike countries that require content takedowns without court oversight or even contemplate cutting off subscriber Internet access, the Canadian approach, which has operated informally for over a decade but will kick in as the law in 2015, seeks to balance the interests of copyright holders, the privacy rights of Internet users, and the legal obligations of Internet providers.

The result is a system that has proven effective in raising public awareness about copyright, while safeguarding the identities of Internet subscribers, providing legal certainty to Internet providers, and leaving potential legal actions to the courts.

December 22, 2014 — 74 comments — Columns

You Are Under Surveillance by Matt Katzenberger (CC BY-NC-SA 2.0) https://flic.kr/p/6JBjhQ

Government Documents Reveal Canadian Telcos Envision Surveillance-Ready Networks

After years of failed bills, public debate, and considerable controversy, lawful access legislation received royal assent last week. Public Safety Minister Peter MacKay’s Bill C-13 lumped together measures designed to combat cyberbullying with a series of new warrants to enhance police investigative powers, generating criticism from the Privacy Commissioner of Canada, civil liberties groups, and some prominent victims rights advocates. They argued that the government should have created cyberbullying safeguards without sacrificing privacy.

While the bill would have benefited from some amendments, it remains a far cry from earlier versions that featured mandatory personal information disclosure without court oversight and required Internet providers to install extensive surveillance and interception capabilities within their networks.

The mandatory disclosure of subscriber information rules, which figured prominently in earlier lawful access bills, were gradually reduced in scope and ultimately eliminated altogether. Moreover, a recent Supreme Court ruling raised doubt about the constitutionality of the provisions.

My weekly technology law column (Toronto Star version, homepage version) notes the surveillance and interception capability issue is more complicated, however. The prospect of a total surveillance infrastructure within Canadian Internet networks generated an enormous outcry when proposed in Vic Toews’ 2012 lawful access bill. Not only did the bill specify the precise required surveillance and interception capabilities, but it also would have established extensive Internet provider reporting requirements and envisioned partial payments by government to help offset the costs for smaller Internet providers.

December 15, 2014 — 20 comments — Columns

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Why Canada’s Communication Policy Misses the Forest for the Trees

The Canadian Radio-television and Telecommunications Commission wrapped up its third major hearing in as many months last week, focusing on the wholesale market for broadband Internet services. Coming on the heels of the earlier hearings on broadcast television regulation (the “TalkTV” hearing that was highlighted by a showdown with Netflix) and wholesale wireless services, the proceedings followed a familiar script.

The incumbent providers urged the Commission to resist regulating access, claiming a competitive market exists with few barriers to new competitors. Meanwhile, independent Internet providers pointed to their relatively small share of the current broadband market and warned that failure to mandate access for faster fibre connections to the home would effectively eliminate future competition as Canadians gravitate to services offering faster speeds.

While it will take some time for the CRTC to issue its decisions in all three cases (the broadcast decision is expected before the end of the year), it is not too early to declare the entire system broken. The CRTC – Netflix battle prompted many to conclude that the Commission was a relic of the past, unable to adapt to the disruptions facilitated by the Internet. Yet the Commission’s difficulty dealing with the fast-moving changes throughout the communications sector is chiefly the result of an outdated regulatory structure that misses the proverbial forest for the trees.

December 9, 2014 — 6 comments — Columns

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What Open Government Hides

Treasury Board President Tony Clement unveiled the latest version of his Open Government Action Plan last month, continuing a process that has seen some important initiatives to make government data such as statistical information and mapping data publicly available in open formats free from restrictive licenses.

My weekly technology law column (Toronto Star version, homepage version) notes there is much to like about Canada’s open government efforts, which have centred on three pillars: open data, open information, and open dialogue. Given the promise of “greater transparency and accountability, increased citizen engagement, and driving innovation and economic opportunity”, few would criticize the aspirational goals of Canada’s open government efforts. Yet scratch the below the surface of new open data sets and public consultations and it becomes apparent that there is much that open government hides.

December 1, 2014 — 7 comments — Columns

Uber is Uber Cool by Mike (CC BY-NC-SA 2.0) https://flic.kr/p/eeVwN3

Why Uber Has a Canadian Privacy Problem

The mounting battle between Uber, the popular app-based car service, and the incumbent taxi industry has featured court dates in Toronto, undercover sting operations in Ottawa, and a marketing campaign designed to stoke fear among potential Uber customers. As Uber enters a growing number of Canadian cities, the ensuing regulatory fight is typically pitched as a contest between a popular, disruptive online service and a staid taxi industry intent on keeping new competitors out of the market.

My weekly technology law column (Toronto Star version, homepage version) notes that if the issue was only a question of choosing between a longstanding regulated industry and a disruptive technology, the outcome would not be in doubt. The popularity of a convenient, well-priced alternative, when contrasted with frustration over a regulated market that artificially limits competition to maintain pricing, is unsurprisingly going to generate enormous public support and will not be regulated out of existence.

While the Uber regulatory battles have focused on whether it constitutes a taxi service subject to local rules, last week a new concern attracted attention: privacy. Regardless of whether it is a taxi service or a technological intermediary, it is clear that Uber collects an enormous amount of sensitive, geo-locational information about its users. In addition to payment data, the company accumulates a record of where its customers travel, how long they stay at their destinations, and even where they are located in real-time when using the Uber service.

November 24, 2014 — 5 comments — Columns