Industry Canada has released it’s priorities for 2014 – 2015. These priorities seem to suggest the government is extremely concerned about barriers put up by telecom sector to the use of e-commerce. It also suggests that days before the EU starts slapping the US around on privacy concerns, the Canadian government has sent a message that it’s willing to co-operate with the EU on changes to our privacy laws after a threat from the EU to review our privacy laws and possibly put the newly signed CETA trade agreement at risk as a result.
A few points worth highlighting regarding telecommunications policy:
This program develops legal and policy frameworks in the areas of spectrum, telecommunications, privacy protection and online security. It promotes the efficiency and adaptability of the Canadian digital economy by regulating commercial conduct and discouraging misconduct in the use of electronic means to carry out commercial activities and by working with the private sector to remove barriers to the use of e-commerce.
The above sounds like an attack on the use of bandwidth caps to me, considering governments previous language on the issue of usage based billing. If I was CRTC Chair Jean-Pierre Blais right now, I’d be very careful on how he moves forward on the bandwidth cap issue. It seems to me from the language displayed here, that Industry Canada is watching these “Let’s Talk” proceedings with a keen interest on the wider digital economy.
The below regarding telecommunications policy seems like the government got the message from the EU regarding our privacy laws:
Other elements will include: modernizing the privacy regime to better protect consumer privacy online; monitoring the implementation of Canada’s anti-spam legislation; and deepening analysis of Canada’s communications infrastructure.
Industry Canada will develop a multi-year work plan to fulfill its mandate within the Cyber Security and the Critical Infrastructure Protection strategies. The Department will also work internationally to develop standards that address cyber security and privacy concerns.
On March 12th, 2014 the EU Parliament is expected to raise it’s voice big time over the US’s NSA spying on EU Citizens. The threats thus far from the EU have been related to putting trade agreements on hold, and suspending the US’s safe harbor for EU data. The EU has even threatened Canada with a review of our privacy laws to see if they are adequate enough to protect EU citizens from unwarranted interception, which could put the newly signed CETA trade agreement between the EU and Canada at risk.
Will the language on privacy thwart a review of Canadian privacy law by the EU? I would suspect not, as the EU is extremely upset over the NSA spying, and those that have helped the US in this regard including Canada. What the language will provide however, is talking points for Industry Minister Moore should the EU have Canadian privacy laws in it’s sights.
On the surface the priorities of Industry Canada regarding telecom and privacy seem to be in-line with Canadians on these issues, however the devil will be in the details regarding future legislation to bring these priorities into law. Considering pressure from the EU on the privacy front, I’m hopeful that meaningful changes in our privacy laws are about to occur.
A few weeks ago I wrote an open letter CRTC Chair Jean-Pierre Blais regarding usage based billing. I received a response today that reads the following:
I am writing in response to your Wednesday February 19, 2014 correspondence to the Chairman of the CRTC, Jean-Pierre Blais. In your letter you seek to discuss an issue that has been raised as part of the Let’s Talk TV consultation. At this time it is not possible for Mr. Blais to address any questions on topics that have been raised as part of the Let’s Talk TV process outside of the pre-established consultation processes. Of course, phase 2 of Let’s Talk TV has begun and you are invited to provide your input by filling out the Let’s Talk TV: Choicebook.
I would also note that the Chair has indicated that the Commission intends to hold a public hearing as part of the Let’s Talk TV process in September of this year, in which interested parties may participate.
Conseiller juridique/ Legal Counsel
Important to note that Mr. Blais took to twitter a few weeks ago to answer questions which got some very interesting responses, and yet when it comes to the economic impact bandwidth caps may actually have on the wider digital economy, he chooses not to answer any questions, and points to a public hearing in which will mostly be packed with telecom industry lobbyists. I thought the culture changed at the CRTC to include more openness with Canadian consumers. I guess I was wrong with that assumption.
Back over a decade ago, I was having problems with Bell basically double billing my account for Sympatico internet services. Like many in tech I took to customer forums to complain and was introduced to the Resident Broadband Users Association (RBUA). I got to know these people pretty well. They were made up of a lot of tech like minded people, some of which had worked in tech support for various ISPs. I believe the founder of this organization worked with Rogers at one point, and formed this group to bring concerns of the tech community up directly with Rogers.
I got to learn over a few months what was then the early days of what’s currently being coined as “The Pro-Internet” community. Basically what this meant back then was “tech friendly”. One of the biggest achievements for the tech community I was told the RBUA had accomplished, was a successful push back against Rogers when the company was looking to abolish and block personal FTP servers. For the tech community we often bring our work home, so we needed quick access to files when we needed them when we were on and off site.
At the time I met these guys, they didn’t have a working relationship with Bell Canada. I was invited to become a senior writer for this organization, and would have been in charge in trying to set up a working relationship with Bell. At the time I couldn’t commit to the amount of time needed to fulfill this role and attend staff meetings, since I was in school full time learning computer sciences. I kept in contact with the group sporadically over the span of a few years. When trying to get back in contact with this group due to Rogers throttling in 2007, I was told the association had folded due to various reasons and was given contact info for the newly formed Canadian Internet Policy and Public Interest Clinic (CIPPIC).
Traditionally the independent internet providers have often sided with the tech community. From working in business at one of Ontario’s many independent ISPs in the mid-90s, I’d often worked with business IT professionals selling the idea that our companies were smaller, so we’d be more receptive to the needs of IT with our business clientele, and could adapt to individual needs.
During the Fair Copyright for Canada movement in which I was also very much a part of, the public for the first time got an education around things the tech community had been concerned about regarding things such as “Net Neutrality” and especially techs most hated topic, “copyright” and the effects “copyright” could have on net neutrality. This was also during the heat of the battle against Rogers throttling when the public woke up on the tech community’s concerns.
In 2010 a new “advocacy” group popped up called “Openmedia” over public anger over the use of bandwidth caps. This is where things seem to stray with respect to the traditional “pro-internet” community. Openmedia essentially used concerns over bandwidth caps Canadian consumers had, and turned it into a lobbying issue with respect to the independent internet providers at the CRTC.
I’ve spoken with Steve Anderson several times. He’s a very nice guy, has genuine concerns, however doesn’t seem to completely grasp the technical side of things, and seems more concerned about the politics of telecom policy than pushing the concerns most have in the traditional “pro-internet” community forward to the CRTC. His primary post secondary study was in film not tech.
There’s no doubt that being seen as “pro-internet” these days is good for the corporate bottom line, however today we’re at a very interesting cross roads. The identity of the “pro-internet” community seems to be more and more dictated by two entities here. One would be Micheal Geist (who’s personal ideologies sometimes stray that of the traditional crowd due to his pro-copyright stances), to Openmedia who from my past working relationship with them are more worried about the PR and how that can benefit their corporate donors.
Don’t get me wrong, Openmedia is doing good work on “occasion”, however their successes have largely been built around a very misleading move regarding usage based billing, which should have not been used to influence its corporate donors market position. Often times they lead from behind. As a result, the foundation isn’t strong enough to be sustainable for this group to last very long in my opinion if this group continues to stray and damage a lot of the ideology it’s supposed to be supporting. Look at the issue of usage base billing now. Are we better off as a result of Openmedia’s UBB campaign, not even in the slightest.
One of the things I’ve learned in over a decade of fighting for pro-internet (or pro-tech) ideology is dictation of the message from corporate influences on tech policy is exactly what they often fight against. Our army is strong and growing by the day. One thing I’ve learned, is that the traditional pro-internet community are not “zombies”. Over this past week, I’ve often wondered, how many bricks is it going to take, before the traditional pro-internet community has had enough, and breaks down this wall of corporate influence, not just with Openmedia, but how the term “pro-internet” is now being improperly used to garner support for being unfriendly to consumers, and the tech community on a whole. I don’t even have to cite any examples here. I think those in the traditional wing of this community who have been disillusioned by recent events, and following this blog for some time know exactly what I mean.
Coming from the grass roots of the pro-internet community myself, I think those that have strayed away from it don’t realize that every time the words pro-consumer or pro-internet are used out of context, to defend and sell very anti-consumer and unfriendly positions of those who formally supported this community in business in the past, puts yet another brick on the wall.
I think it’s important that others with concerns now come forward within the legal community. As the “sensationalist” media posts of all of this die down, and people have time to reflect, the conversation will shift from the PR talking points to what really matters in this situation as it pertains to privacy and online rights. At least I’m hoping it will. This decision will impact all Internet users in Canada regardless if you download or not. I will continue to watch reaction, and continue to accumulate links and info to post on this blog. For more immediate notification of info, please follow my twitter feed.
From an article on the decision on Torrentfreak:
CIPPIC adds that Teksavvy shouldn’t hand anything over to Voltage, as this will “infringe the privacy rights of the subscribers and may affect the scope of protection offered to anonymous online activity.” CIPPIC fears that any ruling in this case could have a detrimental effect on whistle-blowers and others who leak documents in the public interest.
A view also backed up by a poster on the blog for Comparative Law: Privacy and Data Protection course at Osgoode Hall Law School. The commentator posted:
It makes me wonder whether people will argue that their privacy has been infringed upon due to the unauthorized identification, and whether this has the potential to flood the legal system with various cases.
For the legal savvy and from The Court which is an online publication of the Osgoode Hall Law School :
This decision does seem to establish an effective filter on Norwich order motions made with a view to copyright troll potential infringers. But in ordering the release of information about the identities of Teksavvy users, the FCC has given the green light to other companies following the same path as Voltage—gather IP information, establish a bona fide case, and aggregate enough potential claims to make the claims cost effective despite the statutory ceiling on individual damages.
In effect, this decision establishes a process for copyright holders to pursue claims against alleged infringers. Copyright trolls may be barred from compelling ISPs to release their customers’ information through Norwich orders, but copyright holders who are serious about commencing litigation now have an important precedent to use against alleged infringers.
More to come soon.
Yesterday the Federal court issued a decision on the Teksavvy vs. Voltage case granting Voltage access to Teksavvy’s customers information regarding alleged file sharers. The decision comes with some controversy on Teksavvy not opposing the motion in court. I’m going to leave a lot of the legal analysis that is sure to come out by qualified lawyers in all of this not to chums like me, Ellis or Openmedia.
I’ve lost a lot of friends, but also gained new ones through my stances on this blog. I’ve been very clear on my opinions on this issue on this blog. Those opinions are based on law and from my learning quest in all of this are shared by the majority of those I’ve spoken with in the legal community who are fighting the front lines of this copyright debate, and are preparing to defend consumers against such court actions. There have been several sources I’ve been in contact with in the legal community who have shared their thoughts and views privately to me on this issue prior to this court decision. All of which resemble that of my previous comments on this issue, including concerns regarding how your information is captured online, and used, and not just in this case. These new friends are not in charge of defending a companies reputation, and are far more qualified than some of the “academic” commentators this debate has seen in previous months regarding law, privacy, and technology. They are also far more qualified than some of Openmedia’s advisers. I will leave it up to these very capable and qualified legal professionals to properly communicate the law in this to the public. Keep an eye on my twitter feed.
However, I will comment from the business communications perspective. Right from the get go, I’ve been offering my assistance in this regard to Teksavvy which was rejected a number of times prior to the online debates on this. Teksavvy decided not to oppose, and chose a very complex hard to communicate legal position. In turn this put the company in my opinion at hugely unnecessary risk, considering it’s legal options which I warned the leadership at Teksavvy several times about, again rejected. We’ve had everything from sources close to Teksavvy (and get this even a communications professor at York U) explain the decision not to oppose as something relating to safe harbor (which was debunked), to it’s not Teksavvy’s job (debunked). Then we were all told to wait, they said, they had a master plan.
What we are left with as a result of this decision from the courts on a business communications stand point, is an overly complex hard to communicate legal position, which from the looks of it is still very much open ended to the public and quite frankly to me as well after reading the entire decision. I don’t see this as being very much comfort for those affected especially after Distributel has recently opposed a similar motion which saw the copyright trolls drop the case months after Distributel filed it’s motion to oppose. I don’t think any amount of public relations at this point is going to be able to sell Canadians on how much Teksavvy should be cuddled by Canadian consumers for not opposing Voltages motion considering the win for Voltage here.
In business you can throw as much money as you want into public relations and communications, but if it isn’t simple you’ve lost your message. I had to beat the CEO of this company over the head a few times on DSLR before he would start communicating. Once he did, it took 10 days for him to try and explain the legal position on the forums. Teksavvy lost it’s message long before this current decision as a result of it’s communications strategy (or lack there of), and its going to have a very tough time explaining all of this to it’s customers.
I’m not a lawyer, but as a business person myself, this all seems like a lot of unnecessary risk to put any company through regardless of the outcome here, and especially considering recent developments via Distributel. Communications quite obviously was not factored in to the decision making process here. No one in the legal community I spoke to on this would have ever advised a client to take this approach especially with the a company that based it’s reputation on being consumer friendly.
Those companies that are put in unnecessary risk by their leadership, in my experience, don’t last very long once that cycle starts. Competitors have a tenancy to jump on those bad business decisions as Distributel has already done in this case. Let’s hope that’s the last of the bad business decisions from the leadership at Teksavvy. Nothing is worse than a communications company that can’t communicate to its own customers.
UPDATE Feb 21st 5:00 pm: A few hours ago Teksavvy has released it’s press statement on this ruling which should have been released yesterday with an effective communications strategy. The national press wire already went to print with Voltages response, without Teksavvy’s comments likely due to the late release of Teksavvy’s press statement. Watching the headlines over the past few hours, this is a big PR win for Voltage, and from their statements in media, fully intends to move forward with legal action against Teksavvy subscribers.
Dear Mr. Blais,
I am aware and have contributed to the online consultation regarding Talk-TV. I am extremely concerned regarding the CRTC considering exempting data usage from regulated content. I am concerned what this would mean to the overall digital economy and other digital industries such as the gaming industry to name one. I am a gamer so this decision will effect the services I can access, and how much I could buy and play.
ITMP policy as set by the CRTC was for the sole purpose of controlling internet congestion. It should not be allowed to progress further than that, and essentially be used as a business model by Canadian content providers. I am worried that the approval of such a plan would see data caps further reduced to put preference on owned content. This would essentially put the brakes on further digital content growth in the Canadian market place, and further hamper growth into Canada’s digital economy.
Tech Journalist Peter Nowak recently wrote that Sony is already mulling on providing Canadian access to it’s PlayStation Now service over excessively low bandwidth caps here in Canada. Nowak further concluded that the current state of our excessively low bandwidth caps, is and will continue to have a negative impact on the Canadian entertainment software industry and Canadian content:
As games get bigger and digital distribution becomes more prevalent, they will increasingly have to think twice about their gigabyte counts before enjoying some of the amazing entertainment that’s being made in their own backyard.
Then Industry Minister Tony Clement who put the brakes on a decision to implement data caps on smaller ISPs stated in a 2011 CBC article:
“If such a decision were allowed to stand, the effects are far-reaching, not only for consumers, but for entrepreneurs, creators, innovators and small businesses throughout the country,” Clement said, adding usage-based billing threatens to choke off creative and innovative businesses.
Since this date, and the decision to make data caps optional for independent providers, has for the most part seen data caps remain in place at indie providers. A recent poll done by Teksavvy strongly suggests that even the independent ISPs are using data packages as part of their business model, and not to control traffic. On top of this, the survey found that the vast majority of Canadians already find data usage to be extremely confusing:
“These survey results highlight that many Canadians don’t have a clear understanding of their Internet plans, or which plan is right for them,” said Pierre Aube, COO of TekSavvy.
I am calling on the CRTC, and the Government at this time to review any decision made regarding exempting data caps from owned content that arises as a result of this consultation, and the potential affects this would have on the digital economy on whole. I would also ask that the CRTC and government look into implementing extremely strict rules and monetary non-compliance penalties over ITMP frame work, so that it’s spirit of retaining neutrality on content that’s so important for Canadian media market penetration and digital innovation remains intact. Simply put the option to exempt data caps from owned/regulated content is of stark contrast to current ITMP frame work. Any decision supporting this exemption has the potential to severely retard digital economic growth in Canada, thus Canadian content exposure in not just the content industries but the digital economy as a whole.
Jason Koblovsky (as an individual)
CC: MP Peter Van Loan
CC: Minister of Industry James Moore
The EU Parliament has issued a very stern press release yesterday regarding any future trade deals with the US due to privacy concerns relating to the mass collection of meta data by the NSA. Members of European Parliament are expected to hold a vote on March 12th, 2014 on whether or not to withhold approval of the Transatlantic Trade and Investment Partnership with the US, and suspend the US safe harbor provisions, which could see European’s personal data be banned from flowing in the US. According to the press release:
“Parliament’s consent to the final Transatlantic Trade and Investment Partnership (TTIP) deal with the US “could be endangered as long as blanket mass surveillance activities and the interception of communications in EU institutions and diplomatic representations are not fully stopped and an adequate solution for data privacy rights of EU citizens, including administrative and judicial redress is not found”, MEPs say.
On safe harbor provisions:
“MEPs call for the “immediate suspension” of the Safe Harbour privacy principles (voluntary data protection standards for non-EU companies transferring EU citizens’ personal data to the US). These principles “do not provide adequate protection for EU citizens” say MEPs, who urge the US to propose new personal data transfer rules that meet EU data protection requirements.”
So essentially if the US doesn’t come up with new personal data transfer rules by March 12th, 2014, it’s going to get nasty. Interestingly, the resolution the EU will be voting on March 12th, will also include protections for whistleblowers (something that the Conservatives and Canadian Senate in recent hearings are trying to erode). The resolution takes direct aim at the UK for the unlawful detention of Glen Greenwalds partner David Miranda. Greenwald is the journalist who first broke the story regarding the NSA leaks. His partner Miranda was detained for 9 hours shortly thereafter by UK security forces:
The resolution urges the European Commission to examine whether a future EU law establishing a “European whistleblower protection programme” should also include other fields of EU competence “with particular attention to the complexity of whistleblowing in the field of intelligence”. EU member states are also asked to consider granting whistleblowers international protection from prosecution.
MEPs also cite the UK’s detention of David Miranda and seizure of material in his possession under the UK Terrorism Act and its demand that the Guardian newspaper hand over or destroy such material. They see these acts as “possible serious interference with the right of freedom of expression and media freedom”, as recognised by the European Convention on Human Rights and the EU Charter.
If I was in the Conservative Party of Canada right now I’d be very uncomfortable with these statements. The reason being, if this resolution passes, the Comprehensive Economic and Trade Agreement (CETA) which was just signed most likely will be put on hold as well shortly after. This would take the crowning achievement of Canadian diplomats as well as Prime Minister Harper and shatter it to pieces.
It is unlikely the US will change it’s privacy laws within 28 days, and unlikely the Canadian Government will do so either in the foreseeable future. Questions still remain on the constitutionality of collecting meta data, but now also on how much the Canadian Government is planning to sacrifice economically to continue collecting it without a warrant? Canadians have a lot more to worry about economically and politically than the US if the EU starts to put trade agreements on hold due to privacy concerns.