#CyberFLASH: How a file-sharing lawsuit against Rogers threatens your Internet privacy: Geist

hurt-locker2.jpg.size.custom.crop.1086x612The centrepiece of Canada’s 2012 digital copyright reforms was the legal implementation of the “notice-and-notice” system that seeks to balance the interests of copyright holders, the privacy rights of Internet users and the legal obligations of Internet service providers (ISPs).

The law makes it easy for copyright owners to send infringement notices to ISPs, who are legally required to forward the notifications to their subscribers. The personal information of subscribers is not disclosed to the copyright owner.

Despite the promise of the notice-and-notice system, it has been misused virtually from the moment it took effect, with copyright owners exploiting a loophole in the law by sending settlement demands within the notices.

The government has tried to warn recipients that they need not settle — the Office of Consumer Affairs advises that there are no obligations on a subscriber that receives a notice and that getting a notice does not necessarily mean you will be sued — yet many subscribers panic when they receive notifications and promptly pay hundreds or thousands of dollars.

While the government has been slow to implement an easy fix for the problem in the form of regulations prohibiting the inclusion of settlement demands within the notices, another issue looms on the legal horizon that could eviscerate the privacy protections associated with the system.

Earlier this year, Voltage Pictures, which previously engaged in a lengthy court battle to require Canadian ISPs to disclose the names of alleged file sharers, adopted a new legal strategy. While the company obtained an order to disclose names in the earlier case, it came with conditions and costs. Its latest approach involves filing a reverse class action lawsuit against an unknown number of alleged uploaders of five of its movies.

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#CyberFLASH: Canadian Battle over “Zero Rating” Places Net Neutrality Safeguards at Risk

03748212-700x500Net neutrality emerged as a top Internet policy issue over 10 years ago as some Internet service providers openly discussed creating a two-tier system with a fast lane for websites and applications willing to pay additional fees and a slow lane for everyone else. The companies maintained that consumers would benefit from the two-tier approach by gaining faster access to premium content.

Internet users and emerging technology companies banded together to oppose the approach, arguing that all traffic should be treated in an equal manner regardless of content, source, or destination. They noted that the two-tier approach could lead to unfair competition and an inability for start-up companies to challenge established players.

My weekly technology law column (Toronto Star version, homepage version) notes that Internet users won the policy battle and years later net neutrality rules can be found worldwide. Indeed, the importance of an “open Internet” was recently affirmed by Navdeep Bains, Canada’s Minister of Innovation, Science and Development, who told an international conference that the economy depends upon it.

The Canadian Radio-television and Telecommunications Commission (CRTC) established its policy response in 2009 with the Internet traffic management practices. The rules restrict content blocking or slowdowns and require ISPs to disclose how they manage their networks.

The net neutrality debate has shifted in recent years to the issue of “zero rating” or “differential pricing”, references to network providers exempting certain content from data charges. While the traffic management practice has flipped from charging extra for content to offering access to content without data charges, the fundamental concerns are largely the same.

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#CyberFLASH: How a file-sharing lawsuit against Rogers threatens your Internet privacy: Geist

201310281614240l4j1t1yodou1gmqihww4xc3fThe centrepiece of Canada’s 2012 digital copyright reforms was the legal implementation of the “notice-and-notice” system that seeks to balance the interests of copyright holders, the privacy rights of Internet users and the legal obligations of Internet service providers (ISPs).

The law makes it easy for copyright owners to send infringement notices to ISPs, who are legally required to forward the notifications to their subscribers. The personal information of subscribers is not disclosed to the copyright owner.

Despite the promise of the notice-and-notice system, it has been misused virtually from the moment it took effect, with copyright owners exploiting a loophole in the law by sending settlement demands within the notices.

The government has tried to warn recipients that they need not settle — the Office of Consumer Affairs advises that there are no obligations on a subscriber that receives a notice and that getting a notice does not necessarily mean you will be sued — yet many subscribers panic when they receive notifications and promptly pay hundreds or thousands of dollars.

While the government has been slow to implement an easy fix for the problem in the form of regulations prohibiting the inclusion of settlement demands within the notices, another issue looms on the legal horizon that could eviscerate the privacy protections associated with the system.

Earlier this year, Voltage Pictures, which previously engaged in a lengthy court battle to require Canadian ISPs to disclose the names of alleged file sharers, adopted a new legal strategy. While the company obtained an order to disclose names in the earlier case, it came with conditions and costs. Its latest approach involves filing a reverse class action lawsuit against an unknown number of alleged uploaders of five of its movies.

The Voltage filing seeks certification of the class, a declaration that each member of the class has infringed its copyright, an injunction stopping further infringement, damages and costs of the legal proceedings. Voltage, which produced such award-winning movies as The Hurt Locker and Dallas Buyers Club, names as its representative respondent an unknown uploader — John Doe — who is linked to a Rogers IP address. It admits that it does not know the names or identifies of any members of its proposed class, but seeks to group anyone in Canada who infringed its copyright.

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#CyberFLASH: The Trouble with the TPP, Day 20: Unenforceable Net Neutrality Rules

15109096143_418befce5e_k-780x350One of President Barack Obama’s selling points for the TPP has been claims that it helps preserve “an open and free Internet.” The references to an open and free Internet, which is closely linked to net neutrality, may strike a chord with those concerned with digital issues. However, the Trouble with the TPP is that a close examination of the text and a comparison with existing net neutrality rules in many TPP countries reveals that it doesn’t advance the issue. In fact, the standards are so weak and unenforceable that at least half of the TPP countries already far exceed them.

Article 14.10 of the TPP provides:

Subject to applicable policies, laws and regulations, the Parties recognise the benefits of consumers in their territories having the ability to:
(a) access and use services and applications of a consumer’s choice available on the Internet, subject to reasonable network management;
(b) connect the end-user devices of a consumer’s choice to the Internet, provided that such devices do not harm the network; and
(c) access information on the network management practices of a consumer’s Internet access service supplier.

As a starting point, this is not mandated obligation. The TPP countries merely “recognize” the benefits of some net neutrality provisions. For those countries without net neutrality rules, there is no requirement to implement anything in order to comply with the agreement. In fact, if there was any doubt about the lack of enforceability, the entire provision is prefaced by the reference to “subject to applicable policies, and regulations.” In other words, the provision doesn’t advance anything for countries without net neutrality provisions.

For those with net neutrality provisions, the TPP typically falls well short of what they already have in place. In Canada, the CRTC’s Internet Traffic Management Practices go far beyond the TPP, offering more comprehensive coverage, a complaints mechanism, and enforceable obligations overseen by the CRTC. Many other TPP countries also have stronger net neutrality rules:

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#CyberFLASH: The Year in Tech Law and Digital Brouhaha, from A to Z

tablet610pxWith new trade agreements, a new government, new court cases, and new rules governing the Internet, law and technology issues garnered headlines all year long. A look back at 2015 from A to Z:

A is for the Ashley Madison data breach, which affected millions of people and placed the spotlight on online privacy.

B is for Bill C-51, the anti-terrorism bill, which became a flashpoint political issue on striking the right balance between surveillance and civil liberties.

C is for CBC v. SODRAC, a Supreme Court of Canada decision released in November that reinforced the significance of technological neutrality in copyright. The court sided with SODRAC, a copyright collective, on the need for payment for certain uses of music but ruled that an earlier rate-setting exercise had failed to account for the technological neutrality principle.

D is for Dot-Sucks, one of hundreds of new top-level domains that launched in 2015. The new domains generally failed to garner significant market share, though they created a host of new legal and policy concerns.

E is for Equustek Solutions, a B.C.-based company that succeeded in obtaining a court order requiring Google to remove search results from its global index.

F is for Facebook, which won a B.C. Court of Appeal decision to stop a class action lawsuit over its now defunct Sponsored Stories service. The court ruled that the social media giant’s terms and conditions trumped the provincial privacy laws.

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#CyberFLASH: Why Netflix may come under fire from Ottawa: Geist

529957915_216017972-e1401991064713The Trudeau government has thus far said very little about its plans for future digital and copyright policy reform. There were few references in its election platform and the ministerial mandate letters that identify immediate policy priorities did not speak to the issue.

According to ministerial briefing documents recently released by the government, Canadian Heritage officials have told new minister Mélanie Joly that emerging issues may include targeting the use of virtual private networks and website blocking. The comments can be found in a departmental briefing for Joly on copyright policy, which includes a discussion titled “what’s next” for copyright.

The document identifies three issues, each likely to be exceptionally controversial. The first involves the use of virtual private networks (VPN) for copyright infringing purposes. VPNs are widely used in corporate environments to ensure secure communications and by a growing number of individual Internet users seeking technological tools to better safeguard their online privacy.

The same technologies can be used to hide infringing activity, however. Those activities raise genuine issues, though the prospect of targeting the technology itself would quickly generate robust opposition from those who rely on VPNs for a myriad of legitimate purposes.

Officials point to “hybrid legal/illegal offer of online content” as another emerging issue. The reference to hybrid offering may be a reference to those accessing U.S. Netflix, which is a legal service, but raises concerns when a non-U.S. subscriber accesses content that is not licensed in their country.

The popularity of accessing U.S. Netflix attracted considerable attention earlier this year when a Bell Media executive said that Canadians who access the U.S. version of Netflix are stealing.

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#CyberFLASH: Paris attacks put Canada’s Internet privacy laws at risk

spy_eye_648As the world grapples with the recent terrorist attacks in Paris, the policy implications for issues such as the acceptance of refugees and continued military participation in the fight against ISIS have unsurprisingly come to the fore. The attacks have also escalated calls to reconsider plans to reform Canadian privacy and surveillance law, a key election promise from the Trudeau government.

Despite the temptation to slow the re-examination of Canadian privacy and surveillance policy, the government should stay the course. The Liberals voted for Bill C-51, the controversial anti-terror law, during the last Parliament, but promised changes to it if elected.

Even in the face of a renewed terror threat, those changes remain essential and should not have an adverse impact on operational efforts to combat terror threats that might surface in Canada.

The Liberals promised to establish an all-party review mechanism similar to those found in many other countries that will bring members of Parliament into the oversight process.

The Conservatives’ opposition to increased oversight was always puzzling since oversight alone does not create new limitations on surveillance activities. Rather, it helps ensure that Canada’s surveillance and police agencies operate within the law and restores public confidence in those entrusted with Canadian security.

The other Liberal commitments would similarly address oversight without curtailing surveillance powers. For example, the party promised to increase the powers of the Privacy Commissioner of Canada and to add a mandatory three-year review provision to the law.

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#CyberFLASH: Why Internet privacy should be a key election issue

internet-privacy.jpg.size.xxlarge.letterboxCanada’s controversial anti-terrorism bill, Bill C-51, has emerged as a key talking point in the current election campaign.

Pointing to its big implications for privacy and surveillance, the NDP sees political opportunity by emphasizing its opposition to the bill, while the Liberals have been forced to defend their decision to support it (but call for amendments if elected). The Conservatives unsurprisingly view the bill as evidence of their commitment to national security and have even floated the possibility of additional anti-terror measures.

While Bill C-51 now represents a legislative shorthand for the parties’ positions on privacy and surveillance, a potentially bigger privacy issue merits closer attention.

Last year, the government concluded more than a decade of debate over “lawful access” legislation by enacting a bill that provided new law enforcement powers for access to Internet and telecom data.

The bill came just as reports revealed that telecom providers faced more than a million requests for such information each year and the Supreme Court issued its landmark Spencer decision, which ruled that Canadians have a reasonable expectation of privacy in their basic subscriber information, including name, address and IP address.

The upshot of the lawful access legislation and the court ruling is that Canada’s leading telecom and Internet companies reversed longstanding policies that granted warrantless access to basic subscriber information.

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