Columns

Why CSEC and CSIS Should the Subject of an Independent Investigation

Months of surveillance-related leaks from U.S. whistleblower Edward Snowden have fuelled an international debate over privacy, spying, and Internet surveillance. The Canadian-related leaks – including disclosures regarding spying on the Brazilian government and the facilitation of spying at the G8 and G20 meetings hosted in Toronto in 2010 – have certainly inspired some domestic discussion. Ironically, the most important surveillance development did not involve Snowden at all.

My weekly technology column (Toronto Star version, homepage version) notes that late last year, Justice Richard Mosley, a federal court judge, issued a stinging rebuke to Canada’s intelligence agencies (CSEC and CSIS) and the Justice Department, ruling that they misled the court when they applied for warrants to permit the interception of electronic communications. While the government has steadfastly defended its surveillance activities by maintaining that it operates within the law, Justice Mosley, a former official with the Justice Department who was involved with the creation of the Anti-Terrorism Act, found a particularly troubling example where this was not the case.

January 8, 2014 — 7 comments — Columns

Technology and the Law in 2014: 14 Questions in Need of Answers

The coming year is likely to be a very significant one for law and technology. As the year unfolds, my recent law and technology column (Toronto Star version, homepage version) lists 14 questions (along with possible answers) that will go a long way to determining the path of Canadian technology law policy.

1. Will the government finally unveil a national digital strategy?

The long-promised national digital strategy could become a reality in 2014 after years of inaction. Industry Minister James Moore is on the verge of clearing out the lingering policy issues he inherited and may be ready to set his own path on a digital strategy.

2. Will the wireless spectrum auction be judged a failure?

The contentious wireless spectrum auction should take place early in 2014, but with few, if any, new competitors, the auction seems destined to do little more than entrench the status quo.

January 7, 2014 — 1 comment — Columns

The Letters of the Law: The Year in Tech Law and Policy

With Edward Snowden and the great wireless war of 2013 leading the way, law and technology issues garnered headlines all year long. My weekly technology law column (Toronto Star version, homepage version) takes a look back at 2013 from A to Z:

A is for Americangirl.ca, a Canadian domain name that was the subject of two dispute claims in 2013. The popular doll company relied on a quirk in the policy that permitted a follow-up complaint after its first case was rejected.

B is for Bell TV, which a federal court ordered to pay $20,000 for violating the privacy of a customer. The case arose when Bell TV surreptitiously obtained permission to run a credit check by including it as a term in its rental agreement without telling the customer.

C is for the Competition Bureau of Canada, which launched an investigation into alleged anti-competitive practices by search giant Google.

December 29, 2013 — 3 comments — Columns

The Case For Cancelling Canada’s Simultaneous Substitution Rules

The government’s promise to implement a “pick-and-pay” television model that would allow consumers to subscribe to individual channels from cable and satellite providers garnered significant attention this fall. The approach was promoted as a pro-consumer reform that better reflects expectations that the public controls when, where, and on what device they watch broadcast programming.

Consistent with the government’s policy commitment, the Canadian Radio-television and Telecommunications Commission will soon report on the regulatory implications of such a reform. Changing cable packages may only be the beginning, however, as CRTC Chair Jean-Pierre Blais has stated that the regulator needs to “develop a regulatory framework that will be flexible enough to be adapted to the new technological reality.”

My weekly technology law column (homepage version, Toronto Star version) notes the unbundling of television packages represents the broadcast distribution side of the changing environment, but the flip side of the coin involves the need for changes to Canadian broadcast policy. If Industry Minister James Moore and the CRTC are prepared to shake up the way Canadians access television, they should also consider changing longstanding and increasingly outdated broadcast rules, starting with the gradual elimination of “simultaneous substitution” policies.

December 17, 2013 — 6 comments — Columns

What Will Canada’s Anti-Spam Law Mean for Users and Businesses?

Long before sites such as Youtube and Twitter were even created, the Canadian government established a national task force to examine concerns associated with spam and spyware. The task force completed its work in May 2005, unanimously recommending that the government introduce anti-spam legislation (I was a member of the task force). Four years later, then-Industry Minister Tony Clement tabled an anti-spam law, which underwent extensive committee review before receiving royal assent in December 2010.

My technology law column last week (Toronto Star version, homepage version) notes that while most expected the government to quickly bring the new law into force, the regulation-making process became bogged down by an intense lobbying effort designed to sow fear, doubt, and uncertainty about the legislation. Business groups relied upon implausible scenarios to argue that Canada would be placed at an economic disadvantage, despite the fact that government officials were able to identify over 100 other countries that have similar anti-spam regimes. The lobbying was a partial success, however, as the regulations went through two drafts and three more years of delay.

Almost a decade after Canada started down the path toward anti-spam legislation, Industry Minister James Moore announced earlier this month that the regulations are now final and the law will begin to take effect next year. There will be still yet more implementation delays – the anti-spam rules start on July 1, 2014, safeguards on software installations begin on January 15, 2015, and a private right of action that facilitates lawsuits to combat spam will be delayed until July 1, 2017 – but it appears that Canada will finally get an operational anti-spam law.

December 16, 2013 — 6 comments — Columns