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Canadian Secrecy on the TPP

Michael Geist - Mon, 06/24/2013 - 00:14
CBC's Curt Petrovich reports on how Canada is among the most secretive of the Trans Pacific Partnership countries, refusing to answer basic questions on a recent negotiation session quietly conducted in Vancouver.

SurfEasy: New Advisory Board Position and Reddit AMA

Michael Geist - Mon, 06/24/2013 - 00:13
I am very pleased to announce that I've joined the advisory board of SurfEasy, a Toronto-based company focused on providing tools to better control online privacy.  As part of the launch, I'll be participating in a Reddit AMA on Tuesday afternoon.

CRTC Expects Carriers Will Implement Two-Year Contracts Before Start of Wireless Code

Michael Geist - Fri, 06/21/2013 - 02:24
The CRTC's introduction of a consumer wireless code earlier this month, which notably includes the right to terminate wireless contracts after two years, is expected to put an end to three-year wireless contracts in Canada. The code does not take effect until December 2, 2013, but the CRTC has now indicated that it anticipates that wireless carriers will transition to two-year contracts before that date.

In a letter to the Canadian Wireless Telecommunications Association this week, the Commission responded to questions about the applicability of the code to contracts that pre-date the December 2nd date. The letter included the following statement in discussing a hypothetical scenario involving a three-year contract signed in October 2013:

Carriers are free to implement any part or parts of the Code prior to the 2 December 2013 implementation date. It would be surprising that in October of 2013 a customer would be offered a plan with a device subsidy with a 36 month term as that would be contrary to the spirit of the Code and the development of a more dynamic marketplace.

In other words, the code may only take effect in December, but the CRTC anticipates carriers will adjust to its "spirit" much sooner.

Secrecy and the Limits of Transparency

Michael Geist - Fri, 06/21/2013 - 01:47
Earlier this week, I appeared on TVO's The Agenda for a wide ranging discussion on secrecy and transparency.  The video of the program is embedded below.


Canadian Government Maps Plan for Future Intellectual Property Reform

Michael Geist - Thu, 06/20/2013 - 00:38
The House of Commons may have adjourned for the summer, but just hours before breaking, the government filed its response to the Standing Committee on Industry, Science and Technology's report on the Intellectual Property Regime in Canada. That may sound dry, but the document provides a clear indication of what the government has planned for the coming years on IP reform.

  So what's in store? Leaving aside an assortment of promised studies, the government response includes five notable plans (or non-plans).  

First, the government will unsurprisingly march ahead with Bill C-56, its anti-counterfeiting legislation. The bill will die on the order paper if the government prorogues this summer, but look for it to return fairly quickly.  The bill was pushed through second reading as a dry run to test the opposition party positions. The government learned that the bill will not face significant opposition - the parties want full hearings, but neither is strongly opposed and the Liberals even seem to want ill-advised changes targeting in-transit shipments.

Second, the government will lay the foundation for potential international trade agreements such the Canada- EU Trade Agreement and the Trans Pacific Partnership by launching consultations on whether Canadian law should be consistent with several IP treaties, including the Patent Law Treaty, the Madrid Protocol and Singapore Treaty on trademarks, and the Hague Agreement on designs.  As I noted in March, this recommendation in the committee report arose despite the fact the committee heard no testimony on the issue. That provided a clear sign that the government wants to move on this issue and this response simply confirms it. Given its past approach on consultations, the government will undoubtedly claim support for the treaties.

Third, consumer groups will be invited to join the IP Crime Working Group that is led by industry groups and the RCMP.  Interestingly, the government states that "having consumer groups participate in the Working Group will contribute to a more balanced approach to combating counterfeiting and piracy." 

Fourth, the government will review the rules protecting official marks, which the committee heard is overbroad.  The government appears open to reform, committing to "review the current issues around official marks and will consult with provinces, territories and stakeholders on possible changes to the official marks regime in order to remove barriers faced by Canadian companies seeking trademark registration."

Fifth, the government is not interested in expanding patentability to new subject matter.  The response notes the controversy associated with business methods and software patents and seems content to rely on current law and jurisprudence to address new innovations without the need for additional reform.

In sum, this is a modest plan. Having expended significant political capital to pass copyright reform legislation last year, it is apparent that the government will address IP pressures that arise from trade discussions (the IP agreements and anti-counterfeiting bill) but little else.

The Trouble with the TPP: The Full Transcript

Michael Geist - Thu, 06/20/2013 - 00:31
Earlier this month, I appeared before the House of Commons Standing Committee on International Trade to raise concerns with the Trans Pacific Partnership. I posted my opening remarks here, but a transcript of the full hearing - including questions from Conservative, NDP, and Liberal MPs - is now available online.

Canadian Government Launches Open Government Licence 2.0

Michael Geist - Thu, 06/20/2013 - 00:29
The Canadian government has launched version two of its open government licence.  Discussion and analysis on the licence from Teresa Scassa and Russell McOrmond.

Debating Surveillance and the Law in Canada

Michael Geist - Tue, 06/18/2013 - 00:54
The recent stories about surveillance in the United States and Canada have generated increased debate in the media over the issue and I've been privileged to participate in several discussions. Last week, I sat down with Nick Taylor-Vaisey of Maclean's to discuss the issue.  The full interview is now posted here.  Further, CBC's Cross-Country Check-Up spent two hours discussing surveillance and privacy on Sunday's show. I appeared as a guest at about the 54 minute mark.  Yesterday, I also participated in a far-ranging debate on surveillance and transparency on TVO's The Agenda. The video version of the program should be online shortly, but in the meantime a podcast version is available.

Finally, my technology law column (Toronto Star version, homepage version) this week focuses again on the disconnect between 20th century laws and 21st century surveillance. It notes that revelations about secret surveillance in the United States involving both Internet-based communications and the collection of metadata from all cellphone calls immediately raised questions about the possibility of Canadian involvement or the inclusion of Canadian data. Given the common communication infrastructure and similarities between Canadian and U.S. laws, it seemed likely that Canada was engaged in much of the same activities. Within days, it was reported that Canada has its own metadata surveillance program, with the ministerial approval coming in 2011 from Defence Minister Peter McKay.
The government has tried to downplay the public concern by focusing on two safeguards. First, it argues that its secret metadata surveillance program only targets foreign communications. Second, it notes that the data captured is metadata rather than content and therefore does not raise significant privacy issues. â€¨â€¨Neither response should provide Canadians concerned for their privacy with much comfort. Indeed, the emphasis on these two issues highlights how Canadian surveillance laws have failed to keep pace with current surveillance technologies.

The suggestion that Canadians are not affected by surveillance targeting foreign communications does not stand up to even mild scrutiny. The same claims are made by other intelligence agencies, with each claiming that they limit surveillance to foreign targets. However, information sharing between intelligence services is common, providing a backdoor mechanism to access information.

The prospect that U.S. surveillance becomes a key source for Canadian agencies, while Canadian surveillance supports U.S. agencies, does not strike anyone as particularly far-fetched. Wayne Easter, a former government minister with responsibility for CSIS, has said that such sharing is common. In other words, relying on the domestic-foreign distinction is necessary for legal compliance, but does not provide much assurance to Canadians that they are not being tracked.

Moreover, given the commingling of data through integrated communications networks and "borderless" Internet services residing on servers around the world, distinguishing between Canadian and foreign data seems like an outdated and increasingly impossible task. In fact, the reported decision to stop the Canadian surveillance program several years ago arose in part due to fears of overbroad surveillance. In the current communications environment, tracking Canadians seems inevitable and makes claims that such domestic surveillance is "inadvertent" increasingly implausible.

Assurances that metadata surveillance is less invasive than tracking the content of telephone calls or Internet usage also ring hollow. Metadata can include geo-location information, call duration, call participants, and Internet protocol addresses. While officials suggest that this information is not sensitive, there are many studies that have concluded otherwise. These studies have found that metadata alone can be used to identify specific persons, reveal locational data, or even disclose important medical and business information.

The problem is that surveillance technologies (including the ability to data mine massive amounts of information) have moved far beyond laws that were crafted for a much different world. The geographic or content limitations placed on surveillance activities by organizations such as CSEC may have been effective years ago when such activities were largely confined to specific locations and the computing power needed to mine metadata was not readily available.

That is clearly no longer the case. The law seeks to differentiate surveillance based on geography, but there is often no real difference with today’s technology. Moreover, the value of metadata is sometimes greater than the actual content of telephone conversations. The current law provides few privacy protections and ineffective oversight in the face of intelligence agencies investing billions of dollars in surveillance technologies and telecommunications and Internet companies providing assistance that remains subject to court-imposed gag orders.

The legal framework leaves Canadians with 20th century protections in a world of 21st century surveillance. If we genuinely believe in preserving some privacy in an environment where everyone’s cellphone call is tracked, we must be open to significant legislative reforms and increased oversight that better reflects the realities of modern-day communications surveillance.
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