The Return of ‘Lawful Access’

by matttbastard

Well, isn’t this lovely:

The Conservative government is preparing sweeping new eavesdropping legislation that will force Internet service providers to let police tap exchanges on their systems – but will likely reignite fear that Big Brother will be monitoring the private conversations of Canadians.

The goal of the move, which would require police to obtain court approval, is to close what has been described as digital “safe havens” for criminals, pedophiles and terrorists because current eavesdropping laws were written in a time before text messages, Facebook and voice-over-Internet phone lines.

The change is certain to please the RCMP and other police forces, who have sought it for some time. But it is expected to face resistance from industry players concerned about the cost and civil libertarians who warn the powers will effectively place Canadians under constant surveillance.

Constant surveillance–how so?

The concern of critics is that unlike a traditional wiretap that cannot commence without judicial approval, lawful-access legislation in other countries has forced Internet providers to routinely gather and store the electronic traffic of their clients. Those stored data can then be obtained by police via search warrant.

“That means we’re under surveillance, in some sense, all the time,” said Richard Rosenberg, president of the B.C. Freedom of Information and Privacy Association. “I think that changes the whole nature of how we view innocence in a democratic society.”

Um, yeah, just a li’l bit.

Oh, and, via Michael Geist, it seems our loyal opposition is also doing its part to represent the best interests of the nation by, um, once again proposing its own lawful access legislation–a bill even more odious than the government’s’:

…Liberal MP Marlene Jennings has reintroduced her lawful access private member’s bill, called the Modernization of Investigative Techniques Act.  The Jennings bill is a virtual copy of a failed Liberal lawful access bill that died in 2005.


[T]he Jennings bill would require ISPs to disclose customer name and address information to law enforcement without court oversight.

The Magical ConservaLiberal Unity Pony drops yet another stinking, steaming load on our heads; I love the smell of bipartisan turdblossoms in the morning.

Cough.  Anyway.

From what I can tell, the only substantive difference between Van Loan’s proposed piece of legislation and the one then-Public Safety Minister Stockboy Day tried to surreptitiously impose in 2007 without any public input (before backpeddling quicker than you can say ‘Ogopogo’) is the apparent requirement of judicial approval (which, as noted, may not provide much in the way of protection for a citizen’s private online information–and  Jennings’ PMB offers, um, none).  Otherwise, the state will, in essence, be forcing ISPs to fulfill the darkest fantasies of the tinfoil-adorned black helicopter set.

And, as Impolitical (h/t) notes:

The dangers of such powers being placed with law enforcement and the potential for abuses have been made abundantly clear by the experience Americans have had with the Bush administration and the revelations from whistleblowers in the last year.

Two examples:

Am in full agreement with Geist here:

…Van Loan should commit to active consultations with the privacy community before introducing the legislation; renew the government’s pledge for full court oversight (including for customer name and address information); and there must be full hearings on the bill that place the burden on law enforcement to demonstrate that there is a problem with the law as it currently stands.

Bottom line: this is not a path any purportedly ‘free’ society should hastily embark upon.

Recommend this post at Progressive Bloggers

Canadian DMCA Rises From The Ashes – To Be Introduced Tomorrow?

by matttbastard

Don’t pop open the Cristal bottles just yet, kids. The fight for digital democracy and fair copyright is far from over. According to Michael Geist, word on the Hill says that despite a massive grassroots movement decrying the proposed legislation, “Industry Minister Jim Prentice has decided to forge ahead with the Canadian DMCA with the bill to be introduced tomorrow morning.”


Given the short delay, it is unlikely that the bill has been altered in any fundamental ways. Despite claims that Prentice was working to balance consumer interests, it would appear that he has decided that no further consultation with Canadians is needed. He has instead bowed to pressure from the U.S. and copyright lobby groups.

Thunderbird is go. Right fucking now:

  1. Write to your local Member of Parliament. Nothing is more obvious or more important. Letters (which are better than email) from just a handful of constituents is enough to get the attention of your local MP. It is often a good idea to ask the MP to forward your letter to the relevant Ministers. Contact information for all MPs is available here. Online Rights Canada also provides an easy way to write to your local MP.
  2. Write to the Prime Minister of Canada. Contact information here.
  3. Write to Jim Prentice, the Minister of Industry. Minister Prentice is responsible for the Copyright Act in Canada. Despite the fact that Minister Prentice trumpeted his pro-consumer approach on the spectrum auction issue, the rumour mill suggests that he supports DMCA-style reforms and has little interest in advocating for consumer concerns. Minister Prentice’s contact information is here.
  4. Write to Josee Verner, the Minister of Canadian Heritage. Minister Verner is one of the two ministers responsible for copyright policy in Canada. Prior Canadian Heritage Ministers have been perceived to be close to U.S. copyright lobby groups and copyright collectives. Ministry contact information here. Minister Verner’s contact information is here.
  5. Write to James Rajotte, the Chair of the House of Commons Industry Committee. Rajotte is an Alberta MP who chairs the powerful Industry Committee. His committee will likely lead the review of the bill. If the government tries to fast-track the bill, there will be enormous pressure to limit the diversity of voices before the committee. Rajotte should be urged to ensure that they hear from all stakeholders and all perspectives. Contact information here.
  6. Write to Canadian Heritage’s Copyright Policy Branch. The Copyright Policy Branch is home to a large contingent of bureaucrats focused on copyright matters. Contact information here.
  7. Write to Industry Canada’s Intellectual Property Policy Directorate. The IPPD is Industry Canada’s counterpart on copyright policy, though it addresses a broader range of IP issues. Contact information here.
  8. Write to your local Member of Provincial Parliament or Member of the Legislative Assembly. There is a strong provincial dimension to copyright reform, particularly given its impact on education, privacy, consumer issues, and property rights. In fact, some scholars believe that the law may face a constitutional challenge by overstepping into provincial jurisdiction. The provinces have remained largely silent on copyright, yet they may be forced to address many of the unintended consequences that arise from federal Copyright Act reform. Contact information for Ontario MPPs here.
  9. Write to your Provincial Minister of Education. The provincial education ministers, represented by the Council of Ministers of Education, Canada pursued a disasterous strategy of promoting an ill-advised educational Internet exception rather than emphasizing the need for more flexible fair dealing and limiting the harms associated with DRM. Having lost badly, they need to step up to the plate to defend education interests. Contact information for Ontario Minister of Education Kathleen Wynne is here. For the other Ministers of Education see here.
  10. Write to your local school board or University President. Local school boards can play an important role in the copyright reform process by engaging teachers, parents, and students. Contact information for Ontario school boards here. Canadian Universities have done little to defend the interests of teachers and students by also failing to defend the need for more flexible fair dealing and the harms associated with DRM. Contact information for individual Universities here.
  11. Write a letter to the Department of Foreign Affairs on Canada’s international copyright position. Canada has remained disappointingly silent on important international copyright issues at WIPO (for example, see my recent column on the WIPO Broadcast Treaty). DFAIT should be standing up for Canadian interests at such international meetings as well as during bi-lateral trade negotiations with the United States. They should make clear that Canada can meet the WIPO standards by doing far less than what is found in the DMCA. Contact information here.
  12. Write to Library and Archives Canada to ask that it support the preservation of Canadian heritage. The LAC should be a leading voice against the use of DRM that could lock Canadians out of their own heritage. Earlier this year, new legislation took effect that guaranteed the preservation of electronic books that contain DRM by mandating that they be provided in an unlocked format. Why should individual Canadians receive anything less? Contact information here.
  13. Write to the Competition Bureau of Canada. The combination of DRM and anti-circumvention legislation raises significant marketplace competition concerns. The Competition Bureau must become engaged on this issue by advocating pro-competitive reforms. Moreover, it should be investigating cases of alleged abusive use of DRM. Contact information here.
  14. Write the Office of Consumer Affairs or your provincial consumer protection ministry. The use of DRM raises numerous consumer concerns, potentially requiring specific consumer protection provisions and labeling requirements. The federal OCA can be contacted here. Provincial contacts here.
  15. Write to your federal or provincial privacy commissioner to ask for their support in protecting your personal privacy against DRM. Several of Canada’s privacy commissioners have publicly called on the government to address the privacy concerns associated with copyright reform, a position which deserves public support. In fact, the Privacy Commissioner of Canada has argued that the copyright law should be subject to a privacy impact assessment. There is no indication that this has been done. Privacy commissioner contacts here.
  16. Raise the issue with your local library or school. The library community has been very engaged on copyright and will undoubtedly be a vocal stakeholder for any future reforms. At the local level, libraries can be encouraged to establish copyright policies that fully support user rights and to educate the local community on important access issues. Ontario public library directory here. Moreover, if you are in school or have children currently in school, inquire how the school addresses copyright issues. Does it take full advantage of user rights? Is it aware of how the education exceptions may be limited by anti-circumvention legislation?
  17. Join the Facebook Fair Copyright Group. Canadians are by far the world’s biggest adopters of Facebook. Join this group and participate in local and national advocacy efforts.
  18. Sign a petition. There are petitions calling on the Canadian government to adopt a balanced approach to copyright here and here.
  19. Add your name to the Online Rights Canada mailing list. Online Rights Canada is a grassroots advocacy group that brings together EFF and CIPPIC to focus on online rights issues. Mailing list information here.
  20. Ask each political party where it stands on copyright. The Conservative view on copyright will be apparent with the bill. The NDP is expected to oppose, the Bloc support (even though the bill will represent a significant incursion into provincial rights), and the Liberals could go either way. Raise the issue with each party and ask it to prioritize discussion and debate over this bill.
  21. Support music labels that offer their music without DRM or copy-controls. This one is easy since virtually every Canadian label does not use copy-control technologies. The exceptions are the foreign labels represented by CRIA such as Sony BMG.
  22. Ensure that your local retailer will accept returns on DRM’d products. Many retailers sell DRM’d products without altering return policies to account for the fact that the products may not function as expected. Raise this with your local retailer and encourage them to adopt liberal return policies for DRM’d products.
  23. Ask your ISP what it is doing to stand up for your rights. Canada’s Internet service providers play an important role in defending user rights by only disclosing subscriber personal information with a court order, informing subscribers of requests for their personal information, and by lobbying for an expanded fair dealing provision. Ask your ISP for its policies on these issues.
  24. Participate in a local meeting on copyright. There are a growing number of local “meetup” style meetings that bring together citizens concerned with balanced copyright. If there is a meeting group in your area, go. If not, get one started.
  25. Support more balanced copyright positions from artists and creator groups. Many artists and creators are increasingly abandoning policy positions that favour U.S. style reforms and instead embracing a more balanced approach. If you are a musician, consider joining the CMCC. If you are an artist, consider joining the Appropriation Art coalition. If you are a writer, consider pushing for change within Access Copyright.
  26. Use Creative Commons licensing. Creative Commons, which adopts a “some rights reserved” approach to copyright provides an exceptional (and exceptionally easy) method of supporting both copyright and access. More information on the Canadian licenses here.
  27. Read license terms. My 30 Days of DRM project focused on the increasing use of contract to limit or eliminate user rights. Until legislation blocks the use of such terms, consumers should proactively read license terms and reject those that unfairly limit their user rights.
  28. Track media coverage of copyright. Until recently, media coverage on copyright rarely questioned the sound bites from the copyright lobby. That is changing, but Canada’s media should be challenged when it fails to do so. Letters to the editor or a op-eds are a great place to start.
  29. Educate yourself. There are lots of great sources for information on fair approaches to copyright. In addition to my site – particularly the 30 Days of DRM project and a forthcoming copyright microsite, check out,, CopyrightWatch, CIPPIC, Howard Knopf, and Jeremy deBeer. Another useful source is In the Public Interest: The Future of Canadian Copyright Law, a book published last year by Irwin Law under a Creative Commons license. The book, which I edited, features contributions from 19 professors from across Canada. You can also listen to a podcast version of my Hart House lecture from last year or the podcast of my CFS talk from last month which also touched on these issues.
  30. Educate others. Once you know more about copyright reform issues, tell others. Educate friends, family, and co-workers. Copyright impacts us all.

h/t Scruffy Dan.

Recommend this post at Progressive Bloggers