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The Untold Story Behind the LAC-Canadiana Digitization Plan

Michael Geist - Mon, 09/30/2013 - 19:56
The need for a large-scale Canadian digitization strategy has been readily apparent for many years, with experts repeatedly pointing to the benefits that would come from improved access to Canadian history and culture. While other countries have marched ahead with ambitious projects that often incorporate historical text records, photographs, and video, Canada has fallen behind. 

Library and Archives Canada, which is charged with preserving and making accessible Canada’s documentary heritage, has led the digitization effort, but most of its work over the past decade has failed to bear much fruit.

Given the past disappointments, my weekly technology law column (Toronto Star versionhomepage version) notes the launch a massive new digitization project should have been a cause for celebration. Last June, the LAC and Canadiana, an alliance of public and academic libraries focused on digital preservation, announced plans to digitize and create metadata on 60 million historical Canadian documents. The documents are currently in microfiche and the project envisions digitizing the images and adding transcriptions and metadata (data about data content) to improve their searchability.

Yet as the details of the project dubbed Héritage leaked out, controversy arose with concerns that the historical documents would be placed behind a paywall that would require individual Canadians to pay monthly fees for access. That generated a significant outcry from many groups, with then-Canadian Heritage Minister James Moore assuring the House of Commons that the new head of LAC would closely examine the project.

After the outcry subsided, however, Héritage began to proceed largely as planned. The key supporters of the project - Canadiana, the major library associations, and the LAC - tried to assure critics that their concerns were unfounded, promising to make the digitized microfiche copies freely available to all and restricting additional fees to value-added services such as transcription or metadata. However, newly obtained documents under the Access to Information Act raise troubling questions about public access and promises of exclusivity made by the LAC.

Among the documents obtained is the previously unreleased contract between LAC and Canadiana (underlying MOU here). The contract, which was signed in May 2013, does not provide for digital public access to the documents without a paywall. Rather, the minimum requirements are that the LAC will provide physical access in its reading rooms, Canadiana will charge fees for hosting the content, and at least ten per cent of the collection will be made freely available online each year. After ten years, the entire collection will be openly available to the public online.

The contractual terms are inconsistent with public statements that provided assurances that all digital copies would be publicly available on completion and that the ten per cent restrictions would only apply to works with additional transcription or metadata. Canadiana officials now say that they plan to go beyond the contractual requirements, yet it is surprising that the LAC did not insist on full public access within the contract.

The contract also grants Canadiana exclusive rights to host and make accessible online the entire collection for ten years. However, internal LAC documents readily acknowledge that there was nothing to stop anyone from doing the same thing, since the documents are in the public domain and there is free access to the physical copies.

In fact, granting exclusivity rights is difficult to reconcile with the role of the LAC in digitizing the historical records, which is far more extensive that is generally appreciated. The contract indicates that the LAC will digitize no less than two-thirds of the collection. Given that the LAC is doing most of the digitizing and Canadiana hopes to rely on crowdsourcing techniques for some of the transcription and metadata, the extensive public contribution creates real doubts about the need for any paywall or exclusivity.

The Héritage project promises to offer unprecedented access to Canadian historical documents. Yet the fine print of the agreement may leave many wondering how a deal could have been reached without mandating free online public access, while granting exclusive rights that do not exist.

Privacy Commissioners Struggle to Confront Surveillance Issues at Annual Conference

Michael Geist - Thu, 09/26/2013 - 00:46
The 35th International Conference of Data Protection and Privacy Commissioners wraps up today in Warsaw, Poland. The conference has become an important annual event, facilitating greater global cooperation on privacy and providing the commissioners with a venue to speak out on key privacy issues. This year, the commissioners issued one declaration (on the "appification" of society) and nine resolutions. The resolutions cover a wide range of issues including profiling, international enforcement, anchoring privacy in international law, and web tracking.

Yet despite the enormous public attention to surveillance issues over the past few months, there are no specific resolutions on the issue. In fact, surveillance is only mentioned once, in a resolution on openness of personal data practices which urges organizations to be more open about their practices and adds that governments should do the same. Perhaps unsurprisingly, the U.S. Federal Trade Commission abstained from voting on the resolution due to the reference to governments. The U.S. may have been particularly uncomfortable with the final paragraph in the explanatory note:

Recent revelations about government surveillance programs have prompted calls for greater openness with respect to the scope of these programs, increased oversight and accountability of these programs and more transparency from the private sector organisations that are required to provide personal data to governments. The revelations have also occasioned debate about the appropriate level of transparency associated with such programs in light of relevant national security, public safety and public policy considerations.

The abstention highlights the challenge global privacy commissioners face in finding consensus on surveillance concerns. Interestingly, while the commissioners struggled to tackle the surveillance issue, Brazilian President Dilma Rousseff had no hesitation in addressing the issue directly at the United Nations, where she argued:

In the absence of the right to privacy, there can be no true freedom of expression and opinion, and therefore no effective democracy. In the absence of the respect for sovereignty, there is no basis for the relationship among nations.

The strong speech recognized that there is a need to speak out loudly on surveillance. It is discouraging that the world's privacy and data protection commissioners seemed to struggle to do so and faced U.S. opposition to the only reference to the issue.

How Canada Can Put Digital Consumers First

Michael Geist - Wed, 09/25/2013 - 00:34
Reports over the past week have indicated that the government plans to unveil a "consumer first" agenda for its upcoming Speech from the Throne. The speech, which will set out the federal legislative and policy agenda for the next two years, is widely viewed as the unofficial start of the 2015 election campaign. 

My weekly technology law column (Toronto Star version, homepage version) notes there is little doubt that the battle over wireless pricing, which hit a fever pitch over the summer in a very public fight between Industry Minister James Moore and the incumbent telecom companies, will figure prominently in any consumer agenda. The government is convinced that it has a winner on its hands - consumer frustration with Canada’s high wireless prices suggests that they’re right - and will continue to emphasize policies geared toward increasing competition.

Yet a consumer first agenda should involve more than just taking on the telcos on spectrum (or the airlines over their pricing practices). A digital consumer first agenda should prioritize several other issues that have similar potential to strike a chord with Canadians across the country.  At the heart of those digital issues are two ongoing consumer concerns: pricing and protections.

On the pricing front, monthly wireless bills are only part of the high price Canadians pay for communications services. The Canadian Radio-television and Telecommunications Commission has embarked on a review of wireless roaming fees, which studies have found rank among the highest in the world.

Broadband Internet services would also benefit from a more aggressive, consumer-first regulatory approach. The government previously objected to usage-based billing schemes, but its emphasis on facilitating competition through independent providers has encountered resistance in recent months. For example, some customers of TekSavvy, a large Ontario-based independent ISP, have been stuck for days without service as Rogers has been slow to address problems that arise from its network.

Inflexible and costly television packages should also come under closer scrutiny. The history of broadcast distribution through cable and satellite providers is one in which consumer interests were largely ignored. A consumer first approach would increase choice by opening the market to greater competition (eliminating foreign investment restrictions would be a start), mandating the availability of pick-and-pay services so that consumers could shift away from large bundles of channels they don’t want, and requiring providers to offer broadband Internet services without television packages, so that consumers can "cut the cable cord" if they so desire.

Lower wireless, Internet, and cable bills would be a welcome change, but Canadians also need better digital protections against online harms. The long-delayed anti-spam law, which provides safeguards against spam and spyware, should be brought into effect by finalizing the necessary regulations. The law has been delayed by intense corporate lobbying, however, it enjoys strong support from consumer groups and was passed by Parliament in 2010.

Consumers similarly require better privacy protections since Canadian private sector privacy legislation is now woefully outdated. Reforms arising out of hearings on the law that date back to 2006 died with the prorogation earlier this month, leaving Canadian consumers with a law that no longer meets international standards. Putting consumers first should mean that businesses are obligated to disclose security breaches and face tough penalties for violations of the law.

Canadian consumers would also benefit from protections against misuse of intellectual property rights. That includes safeguards against patent trolls that threaten small businesses and increase consumer costs as well as provisions to ensure that thousands of Canadians do not get caught up in questionable lawsuits over copyright claims that seem primarily designed to pressure them into expensive settlements.

A consumer first agenda is long overdue in the digital environment, where the interests of individual Canadians have often been forgotten. The next Speech from the Throne offers the chance to change course by promoting policies that result in fairer pricing and stronger online protections.  

Back to the Drawing Board: What Wireless Policies Might the Government Now "Aggressively ...

Michael Geist - Tue, 09/24/2013 - 01:21
Industry Canada released the names of the bidders for its forthcoming spectrum auction yesterday with the disappointing news that no major new entrants will be using the auction to enter the Canadian market. That is rightly viewed as a big win for the incumbents, who should have little trouble acquiring the spectrum they want in the upcoming auction and will not face any new competition from deep-pocketed global wireless players. Instead, despite the persistent efforts of the federal government to convince new competitors to enter the market, the Big 3 will continue to dominate Canadian wireless services for the foreseeable future. With prices high by global standards and mobile broadband penetration lagging compared to other countries (an ITU study released over the weekend ranked Canada 32nd worldwide for mobile broadband penetration), consumers are the immediate and obvious loser for the moment.

Yet the incumbent victory did not come easily, coming at the cost of a scorched-earth public relations war with the federal government that the incumbents are already trying to downplay. However, having failed to address market concerns through new competitors, it may now fall to the government to shake things up through increased regulation. There are no shortage of options, with two big steps (the consumer wireless code that limits contract length and potential CRTC regulation of wireless roaming pricing) already underway. After yesterday's release, Industry Minister Moore stated that "in addition to this auction, our Government will continue to aggressively pursue policies that ensure consumer interests are at the core of all Government decisions."

What policies might Minister Moore have in mind?

There should be little doubt that the mere threat of regulation can lead to lower prices and market reforms (witness Bell's decision to slash U.S. roaming prices in half weeks after the CRTC roaming initiative). In fact, just as the incumbents sought to delay the spectrum auction when it appeared that Verizon was going to enter the market, we can expect calls to delay any further policy action until there are further studies or opportunities to take stock of recent developments.

In this case, the government need not hand the incumbents another victory by delaying much-needed policy reforms. Full pricing regulation is rightly viewed as a last resort, yet there are other possibilities. For starters, the elimination of foreign investment restrictions in both the telecom and broadcast distribution sectors as well as tougher tower sharing requirements and domestic roaming rules to make it easier for smaller players to expand their networks.

Another mechanism to generate more competition would be to create a regulated mobile virtual network operator market, a vehicle that Verizon reportedly explored using as part of a potential Canadian entry. MVNOs typically do not own spectrum or network infrastructure. Instead, they purchase network access at wholesale rates from existing operators and offer it to consumers with their own retail pricing. MVNOs such as Canadian-owned Ting have become a hit in the U.S. but are not even available in Canada. By setting the wholesale price, the government could use regulation to create a new batch of MVNO competitors in Canada, much as it has tried to do with Internet access services.

The other big alternative step is full structural separation. Peter Nowak has been advocating this approach for some time, arguing for splitting the incumbents into companies that manage phone and Internet networks and companies that offer services to customers. It is unquestionably a major market change, but with the Canadian wireless environment seemingly stuck in neutral, the government would receive well-deserved plaudits for taking bold action to address the ongoing competitiveness concerns.

Rogers Tries to Distance Itself From Spectrum Battle But It Can't Run From its Record

Michael Geist - Thu, 09/19/2013 - 01:51
The Globe and Mail reports that Rogers Communications is trying to distance itself from this summer's spectrum auction/Verizon battle. Edward Rogers apparently told an investor conference:

"It's been like watching a bit of a soap opera. Rogers has tried to be not as engaged in the dramatics of it and tried, as best we can, [to] offer more of a practical alternative for government, for industry."

Uh huh. So Vice-Chair Phil Lind claiming in July that "everything that they could possibly ask for they're doing for Verizon" was staying out of the fray? Or CEO Nadir Mohamed warning in August that the government's approach could result in slower wireless speeds was offering a practical alternative? Sending a company-wide pre-written email urging employees to write to the government and registering 13 board members to lobby the government was not engaged?  Running advertisements about employees losing their jobs in Moncton wasn't dramatic? Arguing that a fourth carrier won't work in Canada was another practical alternative? The record speaks for itself and no amount of spin will change the fact that Rogers, Bell, and Telus will have to live with the consequences of behaving like "raving lunatics" (in the words of Wind Mobile CEO Anthony Lacavera).

Canada Complicit in Undermining Internet Privacy

Michael Geist - Tue, 09/17/2013 - 02:06
As the tidal wave of disclosures on widespread U.S. surveillance continues - there is now little doubt that the U.S. government has spent billions creating a surveillance infrastructure that covers virtually all Internet and wireless communications - the question of Canada’s role in these initiatives remains largely shrouded in secrecy.

The Canadian government has said little, but numerous reports suggest that agencies such as the Communications Security Establishment Canada (the CSE is the Canadian counterpart to the U.S. National Security Agency) are engaged in similar kinds of surveillance. This includes capturing metadata of Internet and wireless communications and working actively with foreign intelligence agencies to swap information obtained through the data mining of Internet-based surveillance.

My weekly technology law column (Toronto Star version, homepage version) notes the active connection between Canadian and U.S. officials moved to the forefront last week with reports that Canadian officials may have played a starring role in facilitating U.S. efforts to create a "backdoor" to widely used encryption standards. That initiative has been described as "undermining the very fabric of the Internet."

Encryption standards play a crucial role in Internet security by allowing parties to communicate in a secure manner over open networks. The technologies are used for electronic banking, medical records, e-commerce transactions, and online communications.

Earlier this month, new reports indicated that the NSA had secretly managed to defeat Internet privacy and security by cracking widely used encryption technologies. The revelations sent shock waves throughout the Internet security community and raised doubts about the security of millions of transactions that take place online.

While the NSA reportedly uses several techniques to break encryption, including deploying super-computers and working with technology companies to weaken the security embedded within their products, the most important factor may have been the creation of several international encryption standards that made it easier for the agency to crack encrypted messages.

As reported by the New York Times, the encryption standards involve the use of mathematical algorithms to generate random numbers. Those randomly generated numbers play an important role in creating encrypted messages by making it virtually impossible to crack the code. Yet behind-the-scenes, it turns out the NSA wrote the standard, granting itself the capability to break the resulting encryption.

The Canadian role in these developments is linked to how the NSA managed to gain control over the standard setting process. In 2006, the CSE ran the global standard setting process for the International Organization for Standardization. The NSA convinced the CSE to allow it to re-write an earlier draft and ultimately become the sole editor of the standard.

The CSE claims that its relationship with the NSA during the standard setting process was merely designed to support the Canadian government’s effort to secure its technological infrastructure. However, it is now clear that Canada worked with the U.S. to ensure that the backdoor was inserted into the encryption standard and that it may have gained access to decryption information in the process.

In fact, Canada’s work with the U.S. on surveillance issues has even included financial compensation. Bill Robinson, who actively tracks CSE activities, recently reported "that a specific account exists within the government's Financial Reporting Accounts to record payments that CSE receives from foreign governments." Government documents indicate that the account "is used by Communications Security Establishment to record funds received from foreign governments, to cover expenditures to be made on their behalf, in accordance with the provisions of agreements with the Government of Canada."

In other words, Canada may not only have played a key role in facilitating one of the most significant incursions into the Internet privacy, but it may even have been paid for its work.

UBC Sets the Record Straight on University Spending on Copyright Materials

Michael Geist - Mon, 09/16/2013 - 00:29
UBC President Stephen Toope has written an important letter responding to criticism from the Writers' Union of Canada over his university's reliance on fair dealing. Consistent with many universities across the country, UBC has moved away from the Access Copyright licence, focusing instead on a combination of fair dealing, open access, and site licences. The Toope letter notes how much the university community still pays for copyright materials and how little course pack sales are in relationship to overall spending:

UBC pays in the neighbourhood of $25 million to publishers and authors every year. In fiscal 2011/12, UBC spent approximately $2 million on book acquisitions, $2 million on print serials, and $10 million on digitally licensed subscriptions for students and faculty to access through its library system. UBC also sold approximately $14 million of books directly to students and faculty (for which UBC paid publishers about $10 million). In the same period, total course pack sales were about $1 million, less than 4% of the total spent on learning materials. Responsive to the needs of today's students, UBC's faculty members are increasingly utilizing online modes of content delivery, which means that course pack production volumes will form an even smaller percentage over time.

The declining economic importance of course pack sales is important, given that economic impact is one of the six fair dealing factors. UBC has been a national leader on the intersection between copyright and educational use and the Toope letter further confirms that the university's policies are well-considered and fall comfortably within the law.  If the issue is of interest, a reminder that on October 4, 2013, the University of Ottawa will host a free conference on copyright in Canada. Register here for the Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law.

Decoding the Trans-Pacific Partnership: The Free Speech Implications

Michael Geist - Fri, 09/13/2013 - 00:04
Earlier this week, I joined Jesse Brown for an online discussion on the Trans Pacific Partnership. The event, which was hosted by Canadian Journalists for Free Expression, focused on the free speech implications from the deal, particularly in light of the copyright and privacy provisions. Moreover, we spent some time talking about the secrecy associated with the talks. The full transcript can be found here.

Canada Facilitated NSA's Effort To Weaken Encryption Standards

Michael Geist - Wed, 09/11/2013 - 01:18
The NY Times reports that Canada played a notable role in assisting the NSA to weaken encryption standards. The Times reports:

internal memos leaked by a former N.S.A. contractor, Edward Snowden, suggest that the N.S.A. generated one of the random number generators used in a 2006 N.I.S.T. standard - called the Dual EC DRBG standard - which contains a back door for the N.S.A. In publishing the standard, N.I.S.T. acknowledged “contributions” from N.S.A., but not primary authorship.

Internal N.S.A. memos describe how the agency subsequently worked behind the scenes to push the same standard on the International Organization for Standardization. “The road to developing this standard was smooth once the journey began,” one memo noted. “However, beginning the journey was a challenge in finesse.”

At the time, Canada’s Communications Security Establishment ran the standards process for the international organization, but classified documents describe how ultimately the N.S.A. seized control. “After some behind-the-scenes finessing with the head of the Canadian national delegation and with C.S.E., the stage was set for N.S.A. to submit a rewrite of the draft,” the memo notes. “Eventually, N.S.A. became the sole editor.”

A Festivus Miracle: Industry Minister James Moore Hosts Roundtable on Anti-Spam Law

Michael Geist - Wed, 09/11/2013 - 01:14
For the past two years, I have been describing the government's long-missing digital economy strategy as the Penske File, a Seinfeld reference to a non-existent work project. The government's Seinfeldian approach to digital policies continued yesterday, with Industry Minister James Moore hosting a Festivus-like event on Canada's anti-spam legislation. The anti-spam law was passed in 2010, but intense lobbying has delayed approval of the final regulations that are needed to bring the law into effect.

The by-invitation roundtable featured most of the business associations that have criticized the legislation along with several consumer/public interest representatives. Consistent with the Seinfeld episode on Festivus, the 90-minute event opened with the airing of grievances, providing the critics with an opportunity to deliver their concerns directly to the Minister. The consumer and public interest representatives spoke in favour of the legislation and of the need for the government to move quickly to finalize the regulations. While the government's plans remain to be seen, Moore is clearly engaged on the issue and, given that the law was passed years ago, will hopefully demonstrate a feat of strength by bringing it into effect.

A draft of my comments (which were changed slightly in delivery) are posted below.

Opening Remarks, Spam Roundtable (September 10, 2013)

I appreciate the opportunity to participate in this roundtable. I'm a law professor at the University of Ottawa and I was a member of the National Task Force on Spam that in 2005 unanimously recommended that the government introduce anti-spam legislation. 

I'd like to open with four quick points.

First, I'd like to address the imbalance at today's roundtable. I don't criticize the fact that the critics far outnumber the supporters today since the squeaky wheel invariably gets the attention. As we saw this summer on the wireless file, Canadian business groups can be very good at generating attention when they oppose government policy.

Rather, I think it is important to recognize that there are many Canadians - both individuals and businesses - that support this legislation.  They are the thousands of Canadians who participated in the work of the anti-spam task force, who appeared before the Industry Committee to speak in support of the anti-spam bill once introduced, and who referenced the need to bring the anti-spam law into effect as part of their comments in the digital economy strategy consultation several years ago. 

I think many Canadians reasonably thought that passing this legislation in 2010 was largely the end of their civic participation in this policy issue.  The bill was extensively debated, amended, and ultimately passed by Parliament. There should no room for debate on whether the legislation should be brought into force. The only question should involve the regulations associated with the legislation. 

Second, I want to emphasize that spam and spyware remain a serious problem in need of a legislative solution.  Law alone won't solve the problem, but failure to act legislatively leaves Canada at risk of becoming a spam haven and Canadians without recourse to address harmful online activities.

There are improved filtering solutions today, yet the problems with spam remain.  Last night, I checked my Gmail spam box.  As is the case most days, there was several legitimate business messages that I've opted for that were sent to spam, one important personal message incorrectly identified as spam, and several messages from email groups that I participate in. The daily misidentification of spam by aggressive filters means that business messages often don't get through and the reliability of email is undermined.  That hurts both business and consumers.

Third, there is a sense of déjà vu here.  In preparing for this meeting, I came across the following comments:

"especially from the perspective of small business, there's a bit of a fear of the unknown here"

"It has many more cost implications. There are some alarm bells going off and people are saying, "Whoa - let's think about this for a moment."

"It is so easy for companies to take their business someplace else, and we are constantly threatened by this. Literally, if you make too many regulations and add to the costs, it is very simple to house sites in the United States, Bermuda, or someplace else."

The first two comments come from the Canadian Chamber of Commerce and the third from ITAC. But they aren't about CASL. They are comments from 1999 about PIPEDA. The knee-jerk criticism of privacy legislation is not only short-sighted, but also very old and ultimately wrong.

Fourth, many of the concerns expressed with respect to this legislation are greatly exaggerated. Indeed, the claims make this summer's attempt to link spectrum with Canadian water resources seem positively reasonable by comparison. If you believe the criticism, the legislation will place lemonade stands at risk, create onerous obligations not found elsewhere, and create massive new costs for Canadian business. 

Yet the reality is that most of the criticism does not stand up to scrutiny. The legislation starts with a simple proposition - obtain customer consent and you can do pretty much whatever you like.  Given the delays, Canadian business will have nearly ten years from its first introduction to ask one time for permission. With that permission in hand, the law does not create serious barriers to electronic marketing. Beyond the basic consent requirements, there are a host of exceptions - for personal relationships, business-to-business, and many others.  A reasonable reading of these exceptions - the same kind of reading the businesses that now claim the exceptions are too limiting will use the moment the law takes effect - clears away virtually all the horror stories.

Further, the opt-in approach found in the Canadian law is the standard in most of the world. It can be found in Australia, the United Kingdom, the European Union, and Japan, who have all recognized that weaker opt-out models simply don't provide effective protection.

Finally, the claims associated with costs leave the impression that Canadian businesses have no compliance costs today.  That's just not true. PIPEDA and the do-not-call list both create obligations for businesses.  If they are not already maintaining lists, respecting opt-outs, and ensuring full compliance, they aren't following the law. CASL creates new obligations but it doesn't change the fact that compliance costs are not new.

Regulated Wireless Roaming Fees May Be on the Way

Michael Geist - Mon, 09/09/2013 - 21:40
The Labour Day weekend ended with a bang for telecom watchers as Verizon, the U.S. giant that was contemplating entering the Canadian market, announced that it was no longer interested in moving north. That decision represents a major loss for consumers, who would have benefited from greater choice and increased competition.

Yet days before the Verizon change of heart, the Canadian Radio-television and Telecommunications Commission released its own noteworthy announcement, issuing a request for information to all Canadian wireless companies on their roaming pricing. The request, which covers everything from roaming agreements with U.S. companies to roaming revenues and consumer costs, may be the start of a long-overdue effort to reign in Canadian roaming fees that the OECD has reported are amongst the highest in the world.

The Commission acknowledged mounting concern over roaming fees, which kick in whenever Canadians use their wireless devices outside the country (and occasionally within the country when a provider does not offer their own service). After attempts to gather data from publicly available information failed to provide a clear picture, the CRTC initiated the request for information, much of which has never been made publicly available.

Based solely on the readily accessible information, however, my weekly technology law column (Toronto Star version, homepage version) notes that roaming fees render typical usage of cellphones when out of the country unaffordable for most Canadians.

Consider an average family of four that travels to the U.S. for a long weekend. Each person travels with their cellphone, but limits their use to a few calls, checking email, and some text messages to co-ordinate plans. The parents spend only 20 minutes per day talking on their devices, the kids are limited to 10 minutes, and everyone sends ten texts per day. The family avoids bandwidth intensive activities such as streaming video or uploading multiple photographs.

The total cost for such modest usage? On Rogers, the hour of total talk time costs $87 per day, checking emails costs $31.96 per day, and the 40 texts adds another $30 to the bill.  With a daily cost of $148.96, the three-day weekend total roaming cost runs to $446.88 plus taxes.

The situation is even worse with Bell and Telus, who both charge more for data usage. Assuming the emails used 10 MB per day per person (a very modest figure), Bell's pricing of $6 per MB (Telus charges $5 per MB) would add over $200 per day to the family's cost, bringing the weekend cost to over $1000.

By comparison, Vodafone Australia recently unveiled a daily cap for its customers that roam in the U.S. The plan gives subscribers the same voice, text, and data usage as their domestic plans for only AU$5 per day (the same offer applies to travel in the UK and New Zealand).

Many other countries have already taken action against the gouging that appears to occur on roaming fees. In fact, costs in the European Union have dropped by 91 per cent over the past six years in response to regulatory initiatives that have capped roaming fees in Europe.

Canadian providers have been anticipating a regulatory response to high roaming fees.  Earlier this summer, a Rogers executive told telecom analysts that "the roaming initiatives, which frankly we think are imperative in the long run to kind of get roaming in line, or I think we will see the same kinds of things that we've seen in other parts of the world where it becomes high on the regulatory agenda."

Rogers has already taken some steps to drop roaming pricing, resulting in tens of millions of dollars in reduced revenues. Yet those reductions still yield in the pricing described above. With costs still high by international standards and a lack of competition an ongoing concern, regulated roaming pricing is overdue and an important step in meeting the government's goal of "more choice, lower prices, better service."

Canadian Universities Navigate Learning Curve for New Copyright Rules

Michael Geist - Wed, 09/04/2013 - 00:17
As students and faculty prepare to head back to campus this week, many will be greeted by new copyright guidelines that clarify how materials may be used without the need for further permission or licensing fees. Just over a year after the Supreme Court of Canada released five landmark copyright decisions in a single day and the Canadian government passed copyright reform legislation over a decade in the making, the education community has begun to fully integrate the new copyright landscape into campus policies.

My weekly technology law column (Toronto Star version, homepage version) notes the new rules are significant since they grant teachers and students far more flexibility to use portions of materials without the need for copyright collective licences. The changes come as a result of the expansion of fair dealing, the Canadian equivalent of the U.S. fair use rules. The government expanded the scope of fair dealing to explicitly include education as a recognized purpose in 2012, while the Supreme Court has repeatedly emphasized the importance of a broad, liberal interpretation to fair dealing in order to ensure an appropriate balance in copyright law.

With those developments in hand, Canadian educational institutions crafted a general fair dealing policy last year confirming that educators can rely on fair dealing to use up to ten percent of a copyright-protected work (or a single article, a chapter from a book, a newspaper article, or a poem or photograph taken from a larger collection) without the need for a licence provided they meet a six-factor test.

After Access Copyright, a copyright collective, launched a lawsuit against York University over its reliance on fair dealing for much of its copying, the Association of Universities and Colleges of Canada (AUCC), the leading university association, asked Osler, Hoskin & Harcourt, a top Canadian law firm, to develop a series of application guidelines that offer more detailed, specific recommendations for many common copyright uses within education environments.

The new guidelines were completed earlier this month and provide useful information for both teachers and students. The university community believes that consistent application of the guidelines will reduce the likelihood of infringement and enhance York’s defence against the Access Copyright lawsuit, suggesting that near-identical guidelines will be used across the country.

While all the documents start from the same position - fair dealing - each provides specific guidance for a user group or use. For example, teachers and professors are advised that they may provide up to 10 per cent of a work as a handout to students, email a copy of the work to students enrolled in a class, post a copy of the work on a password-protected website that is accessible only to students, or display a copy of the work in a class presentation.

New application guidelines also specifically address two of the most popular ways materials are provided to students: course packs and online learning management systems. Fair dealing can be relied upon for course packs, which are customized printed compilations of readings. However, the guidelines require that no profit be made in the production or sale of course packs and that they be sold to students directly by the university.

Fair dealing also applies to online learning management systems, though the AUCC adopts a fairly restrictive approach by requiring the university to operate or control the system (services such as Dropbox are excluded), password-protect the site, and conduct regular audits to ensure that the fair dealing guidelines are being applied appropriately.

The AUCC guidelines confirm that the benefits of the user rights approach articulated by the Supreme Court of Canada are emerging as an integral part of campus copyright policies. For teachers and students alike, the new policies will mean greater flexibility in the use of copyrighted materials, fewer restrictive reporting requirements, and access to more materials as universities reallocate funds from unnecessary collective licences to digitization of materials and wider access to electronic databases.

The Copyright Pentalogy Conference - Free Registration Now Open

Michael Geist - Tue, 09/03/2013 - 02:02
Registration for the conference on the Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law is now open. The conference is scheduled for Friday, October 4th from 12:30 to 5:30 with a reception to follow. There is no cost for the conference, but advance registration is appreciated. Speakers include Carys Craig, Paul Daly, Jeremy deBeer, Greg Hagen, Elizabeth Judge, Ariel Katz, Teresa Scassa, Sam Trosow, and Margaret Ann Wilkinson.

Verizon Says No To Canada: What Comes Next

Michael Geist - Mon, 09/02/2013 - 21:19
With Verizon CEO Lowell McAdam stating yesterday that "Verizon is not going to Canada", the government's best hope for "more choice, lower prices, better service" may have been lost. The mere possibility of a Verizon entry into Canada sparked a massive lobbying campaign by the incumbent carriers, who used every tool at their disposal - huge advertising spend, direct lobbying, lawsuits, union protests, and favourable media on their own networks - to try to sway public opinion and pressure the government to change its approach. The government did not come close to doing so, recognizing that Canadian wireless pricing is high and that its proposed policies were consistent with many other developed countries. The companies claim the concern is merely about spectrum (not competition), yet companies like Telus applauded the government when the spectrum rules were first released in 2012 and it was only after Verizon indicated its potential interest in entering the market that the rules were characterized as loopholes and unfair.

So what comes next?

After the share price of the incumbents jumps up to reflect the premium the market gives to the lack of Canadian competition and the arguments that the government should delay the auction disappear, the government will be left with the same reality that existed before Verizon. As I noted in an earlier post, there are primarily two things that will drive corporate behavior in any market - competition and government regulation. On the competition side, the government must consider whether further steps are needed to entice significant new players into the market. These may include complete removal of foreign investment restrictions from both telecommunications and broadcast.

In the absence of robust competition, however, regulation is needed. The Canadian government should be doing all it can create more competition, but it must also commit to regulation - even if temporary - until that competitive environment develops. The CRTC signalled a willingness to regulate roaming pricing last week, but that may only be the start of far more dramatic steps that are needed to bring Canadians more choice, lower prices, and better service.

The Telecom Union Rally Against Competition

Michael Geist - Fri, 08/30/2013 - 02:01
Throughout the battle this summer over the potential of a Verizon entry into Canada, the incumbent telecom companies have tried to paint their position as supporting more competition, but rejecting the rules the government believes are needed to facilitate that same competition. Wind Mobile CEO Tony Lacavera recently called out the incumbents and their association - the Canadian Wireless Telecommunications Association - for opposing more competition:

The Canadian Wireless Telecommunications - which we joined being assured it would equally represent all wireless companies in Canada - is a mere puppet of the Big Three.  Far from supporting the new entrants like WIND Mobile, CWTA has been advocating against bringing more competition to the marketplace.

Today in Toronto, two of Canada's largest unions will hold a rally not over the wireless spectrum rules but rather over the very prospect of more competition. The release from the Communications, Energy and Paperworkers Union and the Canadian Auto Workers states that the rally is planned:

to protest the Harper government's decision to allow U.S. telco giant Verizon to compete in Canada's telecommunications market.

Notwithstanding persistent claims that the wireless fight is about "fairness", this rally lays bare the real motivation of many - stopping new competitors from entering the Canadian market.

Bell Media President Directed CTV, Radio Stations To Provide Favourable Wireless Coverage

Michael Geist - Wed, 08/28/2013 - 01:41
Carleton professor Dwayne Winseck has posted a bombshell report that uncovers editorial interference at Bell with Bell Media President Kevin Crull issuing directives to CTV and company-owned local television and radio channels to provide favourable coverage of the wireless issue just as the incumbent campaign against Verizon was ramping up in early July. Winseck posts details on internal company emails that indicate Crull sent the message to provide coverage on the CRTC-sponsored Wall Report:

Kevin Crull our President wants us to give this report some coverage….” and “Kevin is asking if this report can get some coverage today on Talk Radio. National news is covering for TV”.

As I posted on the same day as the emails, the Wall Report actually found that Canada falls on the high side of wireless pricing among the countries surveyed. Yet Crull was looking for different talking points from Bell's media properties. As Winseck notes:

The emails begin by setting out a couple of definitional issues and then distill the two key talking points to be covered: (1) that cellphone rates in Canada have fallen in recent years and (2) that they are generally cheaper than in the US.

The editorial interference may not be particularly surprising, but it is enormously troubling. It highlights the danger of vertically integrated companies such as Bell that use their power to manipulate public discourse for corporate gain through their own media properties. This form of editorial interference by corporate interests raises serious questions about the independence of one of Canada's largest news organizations. As Winseck concludes:

Perhaps the fact that journalists and the news divisions of such TMI conglomerates will be deployed to protect dominant market positions and capitalization might not be all that surprising, but it should still be concerning to journalists and the rest of us who need them to offer views of the world unvarnished by their corporate overlords. That the execs at BCE and Bell Media news divisions went so cheerily along with Crull's memo serves neither journalism nor the public well.

Time for Canadian Privacy Regulators to Take Action on Pervasive Surveillance

Michael Geist - Mon, 08/26/2013 - 23:12
As the near-weekly revelations of pervasive surveillance activities generates both debate and mounting opposition in the United States and Europe, the Canadian reaction has remained somewhat muted. Following an initial flurry of coverage over the surveillance activities of Canadian intelligence agencies, the issue has largely disappeared despite evidence that Canadian data is regularly collected by foreign intelligence agencies, most notably the U.S. National Security Agency.

Interestingly, the battle over the potential entry of Verizon into Canada may have opened the door to greater public scrutiny of the privacy practices of all telecom carriers. The debate unexpectedly features a privacy and surveillance dimension, with the incumbents and their unions raising fears about the link between Verizon and U.S. surveillance.

Verizon may raise privacy concerns, but my weekly technology law column (Toronto Star version, homepage version) notes it is worth asking whether the Canadian carriers can provide assurances that Canadian phone and Internet activity is any less prone to surveillance. The major Canadian carriers have been very secretive about many of these issues. In fact, a recent University of Toronto report found that none issue transparency reports (Google, Twitter, and Microsoft do), inform users about data requests, state where data is routed and stored, or avoid U.S. routing.

The extensive U.S. surveillance programs appear to capture just about all communications: everything that enters or exits the U.S., anything involving a non-U.S. participant, and anything that travels through undersea cables. This would seem to leave Canadian cellphone and Internet users at a similar risk of surveillance regardless of the nationality of the carrier and suggests that Canadian companies may be facilitating surveillance of their customers by failing to adopt safeguards that render it more difficult for foreign agencies to access data.

For example, both Bell and Rogers link their email systems for residential customers to U.S. giants with Bell linked to Microsoft and Rogers linked to Yahoo. In both cases, the inclusion of a U.S. email service provider may allow for U.S. surveillance of Canadian email activity. While the Canadian privacy commissioner previously dismissed concerns associated with using U.S. email providers on the grounds that Canada had similar security laws, the new surveillance revelations suggest that a re-examination of that conclusion may be warranted.

The issue of avoiding U.S. routing is particularly important since even Canadian domestic communications that travel from one Canadian location to another may still transit through the U.S. and thus be captured by U.S. surveillance. Despite these risks, Bell requires other Canadian Internet providers to exchange Internet traffic outside the country at U.S. exchange points, ensuring that the data is potentially subject to U.S. surveillance.

Add in the regular surveillance demands for the email traffic that passes through Blackberry's Waterloo-based servers and the likely interception of communications traffic through several undersea cables that enter Canada and there is little doubt that Canadian Internet and phone use is subject to significant U.S. surveillance activity.

Given these privacy risks, it is surprising that Canadian privacy regulators (which for telecom issues includes both the Office of the Privacy Commissioner of Canada and the Canadian Radio-television and Telecommunications Commission) have remained largely on the sidelines as the surveillance revelations mount. 

Responsibility for oversight of the Communications Security Establishment (the Canadian equivalent of the U.S. NSA) may fall to the CSEC Commissioner. However, the role of the private sector in facilitating surveillance activities sits squarely within the mandate of the privacy commissioner, while the CRTC has a clear role on telecom privacy concerns.

All companies have an obligation under Canadian privacy law to adopt minimally invasive practices, yet the use of foreign service providers or network routing that increases the likelihood of surveillance may run afoul of that obligation. With audit powers and the right to launch investigations, it is time for privacy regulators to proactively address whether Canada's telecom companies should be doing more to protect their customers from foreign surveillance.

Lawful Access Back on the Agenda in the Fall?

Michael Geist - Mon, 08/26/2013 - 02:19
When the government announced earlier this year that its controversial lawful access legislation was dead, many suspected that the bill - which has resurfaced numerous times over the past decade - would be back sooner or later. Peter MacKay, the newly installed Justice Minister, recently suggested that it may be sooner.  According to Postmedia News, MacKay indicated at a recent speech and press conference:

MacKay said he also won't be intimidated or deterred from considering new lawful access provisions despite privacy concerns that ultimately led to the death of previous bills.

Surveillance will unquestionably be on the minds of many come the fall and the question is now whether the government would consider wading back into the issue with the reintroduction of lawful access provisions.

CSEC Commissioner: Canadians May Have Been Illegally Targeted in Surveillance Activities

Michael Geist - Wed, 08/21/2013 - 23:17
The Communications Security Establishment Commissioner released his annual report yesterday with findings that some Canadians may have been the subject of surveillance activities in violation of the law. The finding states:

I had no concern with respect to the majority of the CSEC activities reviewed. However, a small number of records suggested the possibility that some activities may have been directed at Canadians, contrary to law. A number of CSEC records relating to these activities were unclear or incomplete. After in-depth and lengthy review, I was unable to reach a definitive conclusion about compliance or non-compliance with the law.

The Commissioner also recommended the expansion of privacy protections in the context of CSEC assistance to CSIS and acknowledged that " it is in the international sharing of personal information where the risks are higher than for sharing involving domestic partners."  He is working on a report on the sharing of information with Canada's closest international partners that should be concluded within the next few months.

Does it Matter Where Your Data Lives?

Michael Geist - Wed, 08/21/2013 - 02:12
Does it matter where your computer data such as email, digital photos, personal videos, and documents resides? The Canadian Chamber of Commerce apparently doesn’t think so. It recently joined forces with its U.S. counterpart to argue for new rules in the Trans Pacific Partnership - a proposed new trade agreement that includes Canada, the U.S., Japan, Australia and many other Asian and South American countries - that would create barriers to privacy protections designed to require that personal data be stored locally.

My weekly technology law column (Toronto Star version, homepage version) notes that for many years, the issue was largely irrelevant to most computer users since their data was typically kept on computer hard drives within their own homes or offices. While there was always a security risk associated with malware or hackers, using reasonable security precautions provided some protection and there was little risk of warrantless access to the data.

More recently, Internet companies have promoted the benefits of the cloud computing, a reference to storing data online on giant computer server farms maintained by giants such as Google, Amazon, and Microsoft. Cloud-based services offer a host of advantages, including access any time from any device (provided you have Internet connectivity), the elimination of the need for software upgrades, seemingly infinite storage capacity, and state of the art security systems.

Yet for all the benefits, the recent disclosures of widespread Internet surveillance represents an enormous privacy risk that could tilt the balance away from cloud-based services altogether or increase demand for local providers that are less vulnerable to U.S.-based surveillance. In fact, the Information Technology and Innovation Foundation recently estimated that the U.S. cloud computing industry could lose tens of billions of dollars in the coming years should non-U.S. users withdraw their data.

Foreign cloud computing providers will undoubtedly try to seize this opportunity. Some European providers have already experienced a sharp increase in sales in the aftermath of the surveillance disclosures. Meanwhile, Canadian companies such as Bell have begun to tout their made-in-Canada data storage services, while Telus has emphasized the privacy risks associated with a Verizon entry into Canada.

Whether local providers can provide better safeguards is still unclear, however, since the full scope of Canadian-based surveillance remains shrouded in secrecy. Moreover, Canadian-based data often crosses the border into the U.S. during routine transmissions, which presumably allows for the communications to be captured by the expansive surveillance infrastructure that seemingly tracks all Internet communications.

Even if Canadian companies could provide privacy assurances that the data they collect and store is not subject to U.S. snooping, the plan from the Canadian and U.S. Chambers of Commerce would be to prohibit governments - both national and provincial - from creating legal requirements to store data domestically.

Their concern about legislative blocking of data transfers pre-dates the recent surveillance disclosures. In 2004, the British Columbia government responded to concerns that provincial health data could be subject to disclosure under the USA Patriot Act by enacting a law requiring public bodies to ensure that "personal information in its custody or under its control is stored only in Canada and accessed only in Canada." The same law also requires those institutions and their service providers to notify the Minister if it receives a foreign demand for personal information. The B.C. law was soon after replicated in Nova Scotia.

While these laws are limited to governmental storage of data, the surveillance programs make no such distinction. The concerns associated with the USA Patriot Act may have been overstated, but as the scope of surveillance activities comes into focus, public concern appears to be well justified. This suggests that there may be mounting pressure for similar safeguards over private sector activities and that adopting the Canadian Chamber of Commerce proposal within the TPP would dangerously preclude the government from providing Canadians with much-needed privacy safeguards.
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