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Government Documents Reveal Canadian Telcos Envision Surveillance-Ready Networks

Michael Geist - Mon, 12/15/2014 - 07:54

Appeared in the Toronto Star on December 13, 2014 as Government Documents Reveal Telecom Providers 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.

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.

Those provisions were dropped from Bill C-13, yet according to documents obtained under the Access to Information Act, both Internet providers and the government have been debating a “Plan B” on how to ensure that there are surveillance and interception capable networks.

Perhaps the most notable revelation is that Internet providers have tried to convince the government that they will voluntarily build surveillance capabilities into their networks. A 2013 memorandum prepared for the public safety minister reveals that Canadian telecom companies advised the government that the leading telecom equipment manufacturers, including Cisco, Juniper, and Huawei, all offer products with interception capabilities at a small additional cost.

In light of the standardization of the interception capabilities, the memo notes that the Canadian providers argue that “the telecommunications market will soon shift to a point where interception capability will simply become a standard component of available equipment, and that technical changes in the way communications actually travel on communications networks will make it even easier to intercept communications.”

In other words, Canadian telecom providers are telling the government there is no need for legally mandated surveillance and interception functionality since they will be building networks that will feature those capabilities by default.

While Canadian network providers claimed that interception and surveillance capabilities would become a standard feature in their networks, government officials were not entirely convinced. Department officials argued that interception is a “complex process” and that legislative requirements were preferred.

In the absence of mandated surveillance and interception capabilities, another internal government memorandum emphasized the value of incorporating the technologies in wireless networks through spectrum licence requirements. The memorandum notes that Public Safety works with Industry Canada in developing those requirements and deals directly with providers to ensure that they meet the necessary standards.

The department’s stated goal is to “ensure that the lawful interception capabilities of public safety agencies are maximized within the existing legal framework.”  In meeting its goal, the memorandum notes that it will work directly with the wireless providers to assess compliance levels and gain “valuable information on the interception capability currently available.”

The latest chapter of lawful access legislation may have come to a close, but the internal government documents suggest that the story is not yet over. With telecom providers suggesting that surveillance-capable networks are inevitable and government officials seeking alternatives to mandatory interception capabilities, the reality is that some of the issues at the heart of lawful access remain very much in play.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

The post Government Documents Reveal Canadian Telcos Envision Surveillance-Ready Networks appeared first on Michael Geist.

Supreme Court’s Privacy Streak Comes To End: Split Court Affirms Legality of Warrantless Phone Searches Incident to Arrest

Michael Geist - Thu, 12/11/2014 - 08:45

The Supreme Court of Canada issued its decision in R. v. Fearon today, a case involving the legality of a warrantless cellphone search by police during an arrest. Given the court’s strong endorsement of privacy in recent cases such as Spencer, Vu, and Telus, this seemed like a slam dunk. Moreover, the U.S. Supreme Court’s June 2014 decision in Riley, which addressed similar issues and ruled that a warrant is needed to search a phone, further suggested that the court would continue its streak of pro-privacy decisions.

To the surprise of many, a divided court upheld the ability of police to search cellphones without a warrant incident to an arrest. The majority established some conditions, but ultimately ruled that it could navigate the privacy balance by establishing some safeguards with the practice. A strongly worded dissent disagreed, noting the privacy implications of access to cellphones and the need for judicial pre-authorization as the best method of addressing the privacy implications.

The majority, written by Justice Cromwell (joined by McLachlin, Moldaver, and Wagner),  explicitly recognizes that cellphones are the functional equivalent of computers and that a search may constitute a significant intrusion of privacy. Yet the majority cautions that not every search is a significant intrusion. It ultimately concludes that there is the potential for a cellphone search to be intrusive, it does not believe that that will be the case in every instance.

Given that conclusion, it is prepared to permit cellphone searches that are incident to arrest provided that the law is modified with some additional protections against invasion of privacy. It proceeds to effectively write the law by creating four conditions: a lawful arrest, the search is incidental to the arrest with a valid law enforcement purpose, the search is tailored or limited to the purpose (ie. limited to recent information), and police take detailed notes on what they have examined and how the phone was searched.

One saving grace in the majority’s decision is that rejects the notion that password-protected phones legally enjoy greater privacy protection than non-protected ones.  The majority states:

I pause here for a moment to note that some courts have suggested that the protection s. 8 affords to individuals in the context of cell phone searches varies depending on whether an individual’s phone is password-protected. I would not give this factor very much weight in assessing either an individual’s subjective expectation of privacy or whether that expectation is reasonable. An individual’s decision not to password protect his or her cell phone does not indicate any sort of abandonment of the significant privacy interests one generally will have in the contents of the phone. Cell phones – locked or unlocked – engage significant privacy interests.

The dissent – written by Karakatsanis and joined by LeBel and Abella – unsurprisingly agrees on the issue of password protection but also offers a much stronger defence of privacy. It explicitly recognizes the connection between digital devices and privacy:

the cell phone acts like a key or portal which can allow the user to access the full treasure trove of records and files that the owner has generated or used on any number of devices.  It is not just the device itself and the information it has generated, but the gamut of (often intensely) personal data accessible via the device that gives rise to the significant and unique privacy interests in digital devices.  The fact that a suspect may be carrying their house key at the time they are arrested does not justify the police using that key to enter the suspect’s home.  In the same way, seizing the key to the user’s digital life should not justify a wholesale intrusion into that realm.  Indeed, personal digital devices are becoming as ubiquitous as the house key.  Increasingly large numbers of people carry such devices with them everywhere they go (be they cell phones, mobile computers, smart watches, smart glasses, or tablets).

The dissent proceeds to adopt the position that complicated conditions are no substitute for effective privacy. It therefore concludes that warrants provide the right balance:

The intensely personal and uniquely pervasive sphere of privacy in our personal computers requires protection that is clear, practical and effective.  An overly complicated template, such as the one proposed by the majority, does not ensure sufficient protection.  Only judicial pre-authorization can provide the effective and impartial balancing of the state’s law enforcement objectives with the privacy interests in our personal computers.  Thus, I conclude that the police must obtain a warrant before they can search an arrested person’s phone or other personal digital communications device.  Our common law already provides flexibility where there are exigent circumstances – when the safety of the officer or the public is at stake, or when a search is necessary to prevent the destruction of evidence.

While the case does provide some helpful language on the importance of privacy, the recognition that cellphones and computers are now functionally equivalent, and that password protection should not be a pre-requisite for privacy protection, the decision is a setback for privacy in Canada. With the court having just concluded in Spencer that a warrant is needed to access subscriber information, it should have maintained that approach by similarly requiring one for cellphone searches during an arrest. In trying to establish the legality of some warrantless cellphone searches, it has replaced the important safeguard of a judicial authorization with conditions that do little to protect privacy while complicating the obligations of law enforcement.

The post Supreme Court’s Privacy Streak Comes To End: Split Court Affirms Legality of Warrantless Phone Searches Incident to Arrest appeared first on Michael Geist.

Too Little, Too Late?: Access Copyright Finally Acknowledges the Reduced Value of Its Licence

Michael Geist - Wed, 12/10/2014 - 07:27

Access Copyright announced a shift in its licensing approach for universities and colleges yesterday, unveiling what it described as “new market-focused services.” Access Copyright CEO Roanie Levy is quoted as saying “we recognize the advances many institutions have made on content dissemination and the centralized management of copyright. We hear you. We are changing.” Indeed, the copyright collective has changed its tune in some important ways.

Less than three years ago, Access Copyright believed that institutions simply could not opt-out of its licence, claiming that an opt-out would amount to “an absolute ban on all copying” since the only possible way to legally copy materials was to pay the collective. Over the past three years, Access Copyright has been proven wrong. The Supreme Court of Canada dismissed all of its key legal arguments in a massive defeat, the government expanded fair dealing with the inclusion of education, universities opted-out of the Access Copyright licence in droves, and dozens adopted fair dealing policies that called into question whether there was much value in the licence at all.

While Access Copyright is still suing York University (more about that below), the collective appears to recognize that the education sector has alternatives, including the enormous expenditures on site licences, open access publishing, fair dealing, public domain works, and individual licences for works not otherwise available. In other words, Access Copyright is an option, not a requirement, and the collective must prove value that extends beyond extolling the size of its repertoire. Rather, it must demonstrate that it offers value for money in an environment where the Supreme Court has emphasized the importance of users’ rights and adopted a liberal, flexible approach to fair dealing.

Access Copyright’s new approach appears to focus on two things: lower prices to reflect the reduced value of its licence and more options for universities and colleges. While the current model licence costs $26 per full time student at universities, its new “Premium” service drops the fee to $15 per student on a three-year commitment. That licence covers paper and digital copying of up to 20% of a work, which is greater than the 10% standard established in most fair dealing guidelines. Alternatively, Access Copyright is also offering a “Choice” service that costs $5 per student. It only covers handouts and email attachments. Coursepacks and digital uploads are charged at 12 cents per page, which is a 20% increase over the prior per-page fee set some years ago. Access Copyright says the “Choice” package is designed for universities that have centralized their copyright management.  In other words, those that have already opted-out of Access Copyright and might want back in.

Why the lower prices? Access Copyright finally admits that fair dealing should be more directly factored into its pricing:

The new rates are intended to reflect market uncertainty around fair dealing in education. As
such, they represent a sincere attempt to continue working with the education sector as we await greater clarity on fair dealing.

So will universities jump at the new offerings or is it too little, too late?

The “Premium” service is clearly targeting universities that currently operate under the Access Copyright licence. That licence will be expiring for many this summer (those who signed three year deals days before the Supreme Court ruling in 2012) and most were expected to stop using the collective. The new $15 price tag, which not-so-coincidentally starts just as the old licences expire, may prove attractive to those institutions. Indeed, fair dealing is not free as it costs real dollars to manage the system. One institution that I spoke with during the period when many were opting out (not my own school), estimated the cost at $12 per student. If that is accurate – and if the institution has not invested heavily in copyright management – the Premium service will likely find a few takers.  However, this new offer may come too late as many institutions will have prepared opting out and already budgeted for copyright management services.

The “Choice” service is targeting those that currently operate without an Access Copyright licence, so the question will be whether it provides enough value to justify the $5 annual fee. At the moment, covering handouts and email attachment is unlikely to viewed as providing much value. Those copies typically are shorter in nature and more likely to fall under the fair dealing guidelines. The value might come in providing certainty on transactional licences by effectively creating a per-page cost for work that would presumably only kick-in once fair dealing no longer applies – ie. for copying between 10 – 20% of a work. This isn’t a particularly cheap alternative, but it is convenient. That said, those universities in the Choice category will have already invested in copyright management and may not want to add new costs for relatively limited value.

All of this suggests that Access Copyright is gradually lowering its prices, but it may not  succeed in significantly altering the market for its licences since its best case scenario is merely to keep some universities within the fold (admittedly who were likely to leave) rather than bring back those that left several years ago. The Premium service comes closer to a rate that may find a market, but the Choice service may ultimately need to shift to a transaction-only model under which Access Copyright makes it easy to licence works not covered by fair dealing. By effectively charging a $5 administrative fee, it isn’t there yet.

Moreover, there is one further consideration that universities should factor into any decision: the York University litigation. For many years, the universities effectively funded Access Copyright’s litigation and Copyright Board costs, with the collective setting aside millions to pay for legal and lobbying fees. To return to that state of affairs while litigation is ongoing makes little sense. Before universities once again start sending millions to Access Copyright, they might demand that it stop suing them first.

The post Too Little, Too Late?: Access Copyright Finally Acknowledges the Reduced Value of Its Licence appeared first on Michael Geist.

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

Michael Geist - Tue, 12/09/2014 - 09:36

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.

The past three months has essentially involved the examination of bite-sized pieces of Canada’s communication environment without really digging into the whole. The conventional regulatory approach may dictate that the CRTC consider broadcast, wireless, and broadband services separately, but the silo approach makes little sense when both the technologies and the dominant industry players overlap every step of the way.

Canada’s communications market now stands as one of the most vertically integrated in the world. The same companies wear different hats before the Commission as they alternately appear as dominant broadcasters, broadcast distributors, wireless companies, and broadband Internet providers. While the regulatory world treats each market differently, companies such as Bell and Rogers strategize about the whole, not the parts, and are able to use the piecemeal approach to their competitive advantage.

The occasional witness raised this concern, urging the CRTC to consider issues that fall outside the conventional scope of the broadcast or telecom silos. For example, during the broadcast hearing, several emphasized that since a growing number of Canadians access “broadcast” through the Internet or wireless devices, the issue was really one of telecom regulation, not broadcast.

Similarly, witnesses at the broadband Internet hearing noted that issues of regulated access were fundamentally about delivering broadcast content or third party applications, not about specific speeds or pricing. As the Commission delved into technical questions over wholesale costs of Internet services that would be incomprehensible to most Canadians, discussion about the implications for new services from a monopoly-like access to the home for fast Internet was largely absent.

Solving these bigger issues may indeed be beyond the ability of the CRTC. There is a growing sense that the twin governing statutes – the Broadcasting Act and the Telecommunications Act – should be reformed into a single Communications Act that better reflects today’s Internet environment. However, legislative reform is the responsibility of the government, not the regulator, and Industry Minister James Moore has shown little interest in tackling the issue.

Similarly, the calls for “structural separation”, which would involve breaking up the larger companies into separate content and carriage companies are growing louder, but CRTC Chair Jean-Pierre Blais noted that those steps are also better suited to elected officials.

That leaves the Commission with system that largely ignores what is obvious to millions of Canadians who receive monthly bills that lump together everything from wireless services to broadband Internet to broadcast television. Communications now comes in a single bill and represents one very large policy forest that cannot be effectively addressed one tree at a time.

The post Why Canada’s Communication Policy Misses the Forest for the Trees appeared first on Michael Geist.

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

Michael Geist - Tue, 12/09/2014 - 09:15

The Canadian Radio-television and Telecommunications Commission wrapped up its third major hearing in as many months this 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.

The past three months has essentially involved the examination of bite-sized pieces of Canada’s communication environment without really digging into the whole. The conventional regulatory approach may dictate that the CRTC consider broadcast, wireless, and broadband services separately, but the silo approach makes little sense when both the technologies and the dominant industry players overlap every step of the way.

Canada’s communications market now stands as one of the most vertically integrated in the world. The same companies wear different hats before the Commission as they alternately appear as dominant broadcasters, broadcast distributors, wireless companies, and broadband Internet providers. While the regulatory world treats each market differently, companies such as Bell and Rogers strategize about the whole, not the parts, and are able to use the piecemeal approach to their competitive advantage.

The occasional witness raised this concern, urging the CRTC to consider issues that fall outside the conventional scope of the broadcast or telecom silos. For example, during the broadcast hearing, several emphasized that since a growing number of Canadians access “broadcast” through the Internet or wireless devices, the issue was really one of telecom regulation, not broadcast.

Similarly, witnesses at the broadband Internet hearing noted that issues of regulated access were fundamentally about delivering broadcast content or third party applications, not about specific speeds or pricing. As the Commission delved into technical questions over wholesale costs of Internet services that would be incomprehensible to most Canadians, discussion about the implications for new services from a monopoly-like access to the home for fast Internet was largely absent.

Solving these bigger issues may indeed be beyond the ability of the CRTC. There is a growing sense that the twin governing statutes – the Broadcasting Act and the Telecommunications Act – should be reformed into a single Communications Act that better reflects today’s Internet environment. However, legislative reform is the responsibility of the government, not the regulator, and Industry Minister James Moore has shown little interest in tackling the issue.

Similarly, the calls for “structural separation”, which would involve breaking up the larger companies into separate content and carriage companies are growing louder, but CRTC Chair Jean-Pierre Blais noted that those steps are also better suited to elected officials.

That leaves the Commission with system that largely ignores what is obvious to millions of Canadians who receive monthly bills that lump together everything from wireless services to broadband Internet to broadcast television. Communications now comes in a single bill and represents one very large policy forest that cannot be effectively addressed one tree at a time.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

The post Why Canada’s Communication Policy Misses the Forest for the Trees appeared first on Michael Geist.

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