Michael Geist Blog

How Canada's Telecom Companies Have Secretly Supported Internet Surveillance Legislation

Michael Geist — Tue, 22 May 2012 05:30:26 +0100

Canada's proposed Internet surveillance was back in the news last week after speculation grew that government intends to keep the bill in legislative limbo until it dies on the order paper. Public Safety Minister Vic Toews denied the reports, maintaining that Bill C-30 will still be sent to committee for further study.

Since its introduction in mid-February, the privacy and law enforcement communities have continued to express their views on the bill, but Canada's telecom service providers, which include the major telecom carriers and Internet service providers, have remained strangely silent. The silence is surprising given the enormous implications of the bill for the privacy of their customers and the possibility of millions of dollars in new surveillance equipment costs, active cooperation with law enforcement, and employee background checks.

While some attribute the Internet surveillance silence to an attempt to avoid picking sides in the high stakes privacy and security battle, documents obtained under the Access to Information Act offer a different, more troubling explanation. My weekly technology law column notes (Toronto Star version, homepage version) in the months leading up to the introduction Bill C-30, Canada's telecom companies worked actively with government officials to identify key issues and to develop a secret Industry - Government Collaborative Forum on Lawful Access.

The secret working group includes virtually all the major telecom and cable companies, whose representatives have been granted Government of Canada Secret level security clearance and signed non-disclosure agreements. The group is led by Bell Canada on the industry side and Public Safety for the government.

The inaugural meeting, held just three weeks before Bill C-30 was introduced, included invitations to eleven companies (Bell Canada, Cogeco, Eagle, MTS Allstream, Quebecor, Research In Motion, Rogers, Sasktel, Telus, Vidéotron, and Wind Mobile) along with two industry associations (the Canadian Wireless Telecommunications Association and the Canadian Network Operators Consortium).

The secret working group is designed to create an open channel for discussion between telecom providers and government. As the uproar over Bill C-30 was generating front-page news across the country, Bell reached out to government to indicate that "it was working its way through C-30 with great interest" and expressed desire for a meeting to discuss disclosure of subscriber information. A few weeks later, it sent another request seeking details on equipment obligations to assist in its costing exercises.

Months before the January 2012 meeting, officials worked with the telecom companies to identify many concerns and provide guidance on the government's intent on Internet surveillance regulations, information that has never been publicly released.

For example, a December 2011 draft list of lawful access issues features questions about surveillance of social networks, cloud computing facilities, and Wi-Fi networks. The telecom companies raise many questions about compensation, such as "a formula for adequate compensation" for the disclosure of subscriber information as well as payment for testing surveillance capabilities and providing surveillance assistance.

At a September 2011 meeting that included Bell Canada, Cogeco, RIM, Telus, Rogers, Microsoft, and the Information Technology Association of Canada, government officials provided a lawful access regulations policy document that offered guidance on plans for extensive regulations that will ultimately accompany the Internet surveillance legislation.

The 17-page document indicates that providers will be required to disclose certain subscriber information without a warrant within 48 hours and within 30 minutes in exceptional circumstances. Interceptions of communications may also need to be established within 30 minutes of a request with capabilities that include simultaneous interceptions for five law enforcement agencies.

The close cooperation between the government and telecom providers has created a two-tier approach to Internet surveillance policy, granting privileged access and information for telecom providers. Meanwhile, privacy and civil society groups, opposition MPs, and millions of interested Canadians are kept in the dark about the full extent of the government's plans. The public has already indicated its opposition to the bill. The secrecy and backroom industry talks associated with Bill C-30 provides yet another reason to hit the reset button.

Athabasca, Winnipeg, & Windsor Will Not Sign Access Copyright Model Licence

Michael Geist — Tue, 22 May 2012 05:27:05 +0100

Following UBC's announcement that it will not sign the Access Copyright model licence, three additional universities have followed suit - Athabasca, Windsor, and Winnipeg. The four universities demonstrate that the licence raises concerns in all types of universites - big, medium, small and distance-focused.

European Union Set To Provide 80 Billion Euro Boost to Open Access

Michael Geist — Tue, 22 May 2012 05:24:38 +0100

Reports indicate that the European Union is set to provide an 80 billion euro boost to open access by making open access publishing the norm for its Horizon 2020 research program.

Romania Will Not Ratify ACTA

Michael Geist — Tue, 22 May 2012 05:22:09 +0100

Romanian Prime Minister Victor Ponta says his country will not ratify the Anti-Counterfeiting Trade Agreement unless the European Parliament modifies the agreement. Since the EP does not have the power to amend ACTA, that makes ratification unlikely.

Exporting Copyright: Inside the TPP

Michael Geist — Fri, 18 May 2012 10:01:47 +0100

Ars Technica has a good article on the Trans Pacific Partnership and the copyright concerns raised by the proposed agreement.

The Future of Education Is Here, It's Just Not Evenly Distributed

Michael Geist — Fri, 18 May 2012 09:59:38 +0100

William Gibson, the American-Canadian science fiction writer who coined the term cyberspace, is well-known for having stated "the future is already here - it's just not evenly distributed." The quote succinctly points to the gradual dissemination of new technologies that start with first adopters but can take years to spread more widely.

To borrow from Gibson, in recent weeks it has become increasingly clear that the future of education is here, though it is not evenly distributed. My weekly technology law column (Toronto Star version, homepage version) notes the emerging model flips the current approach of expensive textbooks, closed research, and limited access to classroom-based learning on its head, instead featuring open course materials, open access to scholarly research, and Internet-based courses that can simultaneously accommodate thousands of students. The concern is that other countries are becoming first adopters, while Canada lags behind.

For example, David Willetts, the United Kingdom Minister of State for Universities and Science, left no doubt about his government’s view on open access to publicly funded research in a remarkable speech to the Publishers Association annual general meeting in London earlier this month. Willetts told the industry that the UK government "is committed to the principle of public access to publicly-funded research results" and that it "believes that published research material which has been publicly financed should be publicly accessible - and that principle goes well beyond the academic community."

As Willetts was telling publishers that trying "to preserve the old model is the wrong battle to fight", Harvard and MIT were announcing an ambitious partnership to bring free or low cost Internet-based classes to thousands of students. The "edX" initiative starts with US$60 million in funding from the two universities with five courses planned for the fall. It joins similar offerings from Stanford (which offered 13 courses online this year) as well as Princeton, the University of Michigan and the University of Pennsylvania.

While the U.S. online teaching initiatives come out of the university system, last year the U.S. government injected hundreds of millions of dollars into open course materials for colleges. Led by the Departments of Labor and Education, the $2 billion program offers $500 million per year for the development of openly licensed materials that must carry the Creative Commons BY licence, which permits their free derivative use for both commercial and non-commercial purposes.

With billions of dollars invested in research that is freely available, course materials that can be freely adapted for any purpose, and free online courses from some of the world’s leading institutions, the shape of education is set to change dramatically in the coming years.

Yet there are serious doubts whether Canada is ready for these changes. While countries such as the UK forge ahead with mandatory open access policies, the major Canadian granting institutions dole out hundreds of millions of dollars in grants without strict requirements to ensure that the resulting data and research publications are made openly available to the public that has funded it.

The massive investment in open course materials will likely prove attractive to Canadian schools and students, with the prospect that domestic materials are dropped in favour of more flexible, free alternatives. Several B.C. and Alberta universities are investing in the creation of their own open materials, but more is needed to Canadianize the steady stream of U.S. funded works.

As for online education, there may be the occasional pilot project from Canadian universities, but no one seems ready to confront the emerging reality of competition from top tier schools from around the world offering online courses at low cost to Canadian students. In fact, many schools seem stuck in their traditional model, complete with restrictive licensing agreements that are likely to slow the technology transition. The future of education may be here, but few Canadian universities have woken up to its implications.

Business Software Alliance: Canadian Piracy Rate Shows Biggest Decline in the World Over Past 5 Yrs

Michael Geist — Thu, 17 May 2012 05:34:08 +0100

The Business Software Alliance released its annual global software piracy report this week with new data that not only shows that Canada hit yet another all-time low but has experienced the biggest percentage decline in the world over the past five years. For the past few years, the BSA report has repeatedly found that piracy is declining in Canada. In 2009, Canada was characterized as a "low piracy country", in 2010 the industry noted that Canada's piracy rate was at an all-time low, and last year it dropped further to another all-time low.

The latest report says the Canadian piracy rate dropped further in 2011. In fact, over the past five years, the Canadian rate has dropped by 18% (from 33% to 27%), the sharpest decline in the world. No other country has seen its piracy rate drop as quickly. While there are ongoing concerns about the BSA methodology, it is striking that at the very time the U.S. and other lobby groups seek to paint Canada as a piracy haven, their own data suggests the opposite is true.

U.S. Law Professors Raise ACTA Constitutional Concerns

Michael Geist — Thu, 17 May 2012 05:31:30 +0100

Dozens of leading U.S. law professors have written to the U.S. Senate Committee on Finance to express concern about the lack of constitutional authority to approve the Anti-Counterfeiting Trade Agreement without submitting it for Congressional approval.

Genomics Editor Steps Down Over Open Access Concerns

Michael Geist — Thu, 17 May 2012 05:28:36 +0100

Harvard Professor Winston Hide has stepped down from the editorial board of the prestigious Genomics journal over the lack of open access.

What the Govt Rejected in the C-11 Amendments: Access for the Blind, Cloud-Based Services & More

Michael Geist — Wed, 16 May 2012 08:08:09 +0100

Bill C-11, the copyright reform bill, passed the report stage yesterday, leaving only a third reading debate and vote before the bill heads to the House of Commons. While many good elements in the bill remain intact, it is worth noting what the Conservatives voted against by opposing every amendment proposed by the NDP, Liberals, Green Party, and Bloc at committee and at report stage. Proposed amendments that were defeated included:

link circumvention to copyright infringement so that Canadians could continue to exercise their fair dealing rights in the digital environment
address a flaw in digital lock exception on perceptual disabilities that may restrict the ability of blind to circumvent a digital lock to access a work
create a new notice requirement for the inclusion of digital locks
create a new qualified circumventer system, similar to that found in New Zealand, so that those Canadians without the technical ability to circuvent a digital lock in permitted circumstances can do so
add a new digital lock exception to protect minors
remove the digital lock restrictions for time shifting and backup copies
create a system to allow the Copyright Board to create new digital lock exceptions
amend the network services provision so that providers can offer network-based PVRs and other cloud computing services. As it currently stands, the bill may create legal risks for such cloud-based storage services.
change the restriction on digital interlibrary loans by requiring a notification of restrictions (including an ability to use a work for more than five business days) rather than the need to take measures to stop restricted activity
remove the 30 day destruction requirement on lessons for teachers and students that use that new exception

None of these amendments were radical or undermined the goals of the legislation. There is much to like in Bill C-11 but the defeat of provisions designed to improve access for the blind, preserve fair dealing, enhance education, and open the door to innovative services hardly seems like something to celebrate.

UBC Will Not Sign the AUCC - Access Copyright Deal

Michael Geist — Wed, 16 May 2012 08:05:33 +0100

UBC, one of Canada's largest universities, has announced that it will not sign the Access Copyright model licence. The decision is particularly notable since UBC President Stephen Toope is also the chair of AUCC, which negotiated the model licence. UBC says it is "taking the bolder, more principled and sustainable option" and points to three main reasons for the decision:

UBC has existing license agreements with over 950 publishers providing access to online resources. UBC’s decision positions us towards a sustainable future and full adoption of digital learning and teaching technologies.
UBC remains concerned about the affordability of higher education, which is borne in part by taxpayers and in part by students. The measures taken by UBC since its 2011 decision have positioned it well and enable UBC’s students and faculty to access teaching and research materials more cost-effectively than if UBC were to enter into a license based on the model.
The AUCC model license only permits copying of up to 10% of a work (20% in case of course packs) and only with respect to a narrow repertoire that is almost exclusively print-based. Therefore, the license would not be cost-effective for UBC and does not absolve faculty members and students from the need to respect the legal rights of copyright owners.

UBC deserves great credit for taking a principled stand at a time when the AUCC has abdicated its leadership on the copyright issue and many other universities seem likely to sign the agreement since the costs can simply be pased along to students. While there are obviously risks, there is also the opportunity for great rewards as UBC may position itself as a national leader at a time that other universities are content to take a major step backward.

More Opposition to the Access Copyright Model Licence

Michael Geist — Wed, 16 May 2012 07:52:20 +0100

In addition to the UBC decision to not sign the Access Copyright model licence, the Manitoba Library Association has added its voice in opposition to the agreement. Moreover, the Trent University Senate has adopted a motion stating "that the Senate, in solidarity with the CAUT, the CFS and dozens of other constituent and governing bodies, reject this unfair and unreasonable AUCC-Access Copyright 'model license' and instead affirm and abide by 'the right to fair and reasonable access to copyrighted works for educational purposes.'"

Is Lawful Access Dead? Not Yet.

Michael Geist — Wed, 16 May 2012 07:48:52 +0100

The Globe's John Ibbitson has a column that confirms much of the private speculation about lawful access, namely that the bill is going nowhere so long as Vic Toews remains public safety minister. This is consistent with the prevailing view that Toews is so closely associated with the worst of the bill - warrantless disclosure of subscriber information, new surveillance technologies, and divisive us vs. them framing - that a change will be needed for the bill to come back. Ibbitson focuses on the likelihood of Parliament proroging before the bill is revamped and returns, yet speculating on those issues is always difficult. What is certain is that lawful access will return at some point, meaning Canadians will need to remain vigilant to ensure that any future bill addresses the myriad of concerns associated with Bill C-30.

Del Mastro on Format Shifting

Michael Geist — Wed, 16 May 2012 07:46:09 +0100

Conservative MP Dean Del Mastro offers up one of the oddest copyright analogies during the C-11 debate, likening format shifting to socks and shoes.

Wall Street Journal's MarketWatch on Canada's Penske File

Michael Geist — Wed, 16 May 2012 07:43:28 +0100

The Wall Streeet Journal's MarketWatch picks up on Canada's missing digital economy strategy, using the Penske File framing to discuss the failure of Industry Minister Christian Paradis to lead on the file.