#CyberFLASH: Taxpayers would have to foot bill for new high-tech police powers, wireless industry says


Canada’s top telecommunications industry group says any government move to force its members to install equipment to intercept digital traffic and store data to aid police investigations would have to be covered by taxpayers.

“We have always submitted that there should be a mechanism for the government to cover the costs or possibly law enforcement,” said Kurt Eby, director of regulatory affairs and government relations for the Canadian Wireless Telecommunications Association.

“Every time the government looks to add a layer such as this, there is going to be cost incurred.”

The federal government is holding public consultations on Canada’s Anti-Terrorism Act, which includes proposals for new investigative powers for police to gather digital evidence.

Police are lobbying for laws that would require telecommunications and internet service providers to retain user data like email, text and call records, and force those same companies to build intercept capabilities into their networks to enable investigators to tap digital communications.

Data Retention

There is currently no regulation to require telecommunications companies to store data for any length of time.

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#CyberFLASH: CRTC, Can Con policy are overdue for an overhaul

crtc_logoOttawa – A new paper from the Macdonald-Laurier Institute is laying out a blueprint for how to turn the CRTC, the regulator of broadcasting and telecommunications, from a counterproductive drag on progress to a leading influence in making Canada a digital innovator.

The CRTC was created to manage the “orderly development” of Canada’s broadcasting and telecommunications sectors in the “public interest”. But it still remains largely the same as when it was created in 1968 – the year Justin Trudeau’s father was elected prime minister.

“The explosion of new technologies, market structures, and consumer expectations has disrupted this quaint vision for the CRTC”, say the report’s authors, MLI Munk Senior Fellow Sean Speer and Len Katz, a telecommunications consultant and former Vice- Chairman-Telecommunications at the CRTC .

“Its capacity to manage the “orderly development” of Canada’s communications sectors has been undermined by market dynamism and technology enabled disorder”.

The paper, written by MLI Munk Senior Fellow Sean Speer and telecommunications consultant and former Vice- Chairman-Telecommunications at the CRTC Len Katz, points out that we now have more than 28 million wireless subscribers and 93 percent of Canadians are covered by the highest network access speed. Two-thirds of Canadian adults now own a smartphone and roughly half own a tablet. The average Canadian spends roughly 45 hours per month accessing the Internet – the highest usage rate in the world – and rising.

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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: CRTC fines two home improvement companies $170,000 for violating telemarketing rules

crtc_logoManon Bombardier, CRTC Chief Compliance and Enforcement Officer, is laying down the law once again. Two home improvement companies have been fined for violating telecommunications rules and have been ordered to pay a hefty sum.

The CRTC’s investigations found that Canadian Choice Home Improvements Inc. was registered but failed to subscribe to the National Do Not Call List (DNCL), while Le Groupe Hydro Hvac Inc. had not registered nor subscribed to the list, making unsolicited calls to Canadians with numbers registered on the DNCL.

Canadian Choice Home Improvements has paid $140,000 in administrative penalties and Le Groupe Hydro Hvac Inc. has paid $30,000. Both companies have now agreed to act in accordance to the telecommunications rules moving forward.

Bombardier stated, “Canadians play an important role in our investigations of unwanted telemarketing calls by providing clear and complete information when filing a complaint. In this case, their information assisted us in bringing these two companies to conform to the Unsolicited Telecommunications Rules. Today’s announcement is another reminder to all telemarketers that compliance with the Rules is not optional.”

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#CyberFLASH: Mapping Out the CRTC Blueprint for Universal Affordable Internet Access

typing-darkIn the wake of nearly two decades of study, debate, task forces, and government programs, Canada’s telecommunications regulator has begun to unveil its blueprint for ensuring that all Canadians have access to affordable, high-speed Internet services. If the plan rolls out as many expect, Canadians in urban areas will benefit from a more competitive environment for high-speed fibre services, while consumers in rural and remote areas will be guaranteed access through a clear legal commitment to universal broadband service.

My weekly technology law column (Toronto Star version, homepage version) notes that part one of the blueprint was released last week as the Canadian Radio-television and Telecommunications Commission rejected opposition from large cable and telecom providers by ordering them to offer independent Internet providers wholesale access to emerging high-speed fibre networks.

The decision on wholesale access is the latest skirmish in a long-running battle pitting telecom giants such as Bell and Telus against upstart providers like TekSavvy and Distributel. Recognizing the advantages held by incumbent providers who enjoy direct connections to consumers (the so-called “last mile”), Canadian regulations foster a more competitive environment by requiring the incumbents to grant independent providers sufficient access to allow for alternative consumer choice.

The system has succeeded in developing some credible independents, yet the market remains dominated by the larger players. Part of the problem has been the steady stream of technical and regulatory challenges faced by smaller entrants, who seemingly have little choice but to take each dispute to the CRTC, leading to costlier offerings, slower speeds, and less product differentiation.

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#CyberFLASH: Using Big Data for targeted advertising could violate Canadian privacy law


BCE Beats Profit Estimates as Smartphone Subscribers GainOn April 7, 2015, the Privacy Commissioner of Canada ruled in its Report of Findings #2015-001 against Bell, one of Canada’s largest telecommunications companies. The Commissioner ruled Bell’s targeted advertising program violated federal privacy law, the Personal Information Protection and Electronic Documents Act(PIPEDA), since Bell did not obtain adequate consents for facilitating the delivery of third party behaviourally targeted ads to its customers. Following the release of the Commissioner’s Findings, Bell decided to withdraw its Relevant Ads Program and delete all existing customer profiles related to the program. It is important to note the decision did not take into account whether Bell was in compliance with the Telecommunications Act(Canada), and this issue is currently before the Canadian Radio-television and Telecommunications Commission (CRTC).

The purpose of PIPEDA is to establish rules to govern the collection, use and disclosure of personal information in a manner that recognizes: (a) the right of privacy of individuals with respect to their personal information; and (b) the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances. In making its analysis, the Commissioner examined the sensitivity of the information and the reasonable expectations of Bell’s customers.

The decision establishes “Big Data” as sensitive personal information. Big Data is a broad term used to describe vast amounts of data, collected over time or from multiple sources. Using data analytics or other forms of computational interpretation, Big Data may reveal human preferences, behavior and patterns. Principle 4.3.6 of PIPEDA provides express consent is the appropriate form of consent when personal information is likely to be considered sensitive. The Commissioner found the breadth of information gathered from multiple sources would render the information, when compiled, more sensitive than the individual elements of that information. These multiple sources included:

  • Internet, television and telephone network usage information (such as websites visited and apps used on a mobile device);
  • demographic information (such as billing address, age, gender, language, credit score, average revenue, payment patterns, plan type and mobile device information); and
  • information generated or inferred (e.g. customer interest categories).

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#CyberFLASH: Four ways Canada’s new transparency rules fall short.

hi-bc-archive-surveillance-camerasCanadians have become increasingly troubled by reports revealing that telecom and Internet companies receive millions of requests for subscriber data from a wide range of government departments. In light of public concern, some Internet and telecom companies have begun to issue regular transparency reports that feature aggregate data on the number of requests they receive and the disclosures they make.

The transparency reports from companies such as Rogers, Telus and TekSavvy have helped shed light on government demands for information and on corporate disclosure practices. However, they also paint an incomplete picture since companies have offered up inconsistent data and some of the largest, including Bell, have thus far refused to come clean on past requests and disclosures.

The Privacy Commissioner of Canada released a report last week that showed that all transparency reports are not created equal. For example, TekSavvy has provided information on the content of the disclosures, the number of accounts affected and instances where users were notified. By contrast, companies such as Rogers, Telus, Allstream and Wind Mobile have not disclosed this information, offering more limited data.

In an effort to create greater uniformity in transparency reporting, Industry Canada has just released new transparency reporting guidelines. The government states that it has released the guidelines “to help private organizations be open with their customers, regarding the management and sharing of their personal information with government, while respecting the work of law enforcement, national security agencies and regulatory authorities.”

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#CyberFLASH: Why the CRTC Fell Short in Addressing Canada’s Wireless Woes

15525080959_6d2dbf4535_k-780x350The competitiveness of Canadian wireless services has been the source of an ongoing and contentious debate for years. Last week, Canada’s telecom regulator concluded that there is a competitiveness problem, yet in a decision surprisingly applauded by many groups, declined to use much of its regulatory toolkit to address the problem. Instead, it placed a big bet on the prospect of a smaller wireless carrier somehow emerging as a fourth national player.

My weekly technology law column (Toronto Star version, homepage version) notes that the Canadian Radio-television and Telecommunications Commission began investigating the wholesale wireless services market in 2013. The big three wireless companies – Bell, Rogers, and Telus – argued that the market was competitive and that no regulatory action was needed. By contrast, new entrants such as Wind Mobile called for regulated roaming rates so that they could offer viable national services with more affordable connectivity wherever their customers roam.

On the issue of competitiveness, the CRTC decision is damning: the big three maintain wholesale rates and the ability to impose terms and conditions that would not prevail if Canada had a competitive market. Given their market power, it concluded that regulation is needed and it will therefore establish a process for setting the wholesale roaming rate. That move should allow the new entrants to more affordably offer national service to their customers and turn them into more effective competitors.

While that was enough to generate supportive comments from Industry Minister James Moore, the new entrants, and some consumer groups, the reality is that the CRTC could have done far more to address the Canadian competitiveness problem. For example, smaller wireless companies had asked for “seamless roaming” to ensure that customers that move in and out of networks do not experience dropped calls. The Commission rejected the request, meaning that dropped calls will continue and will place the new entrants at a competitive disadvantage.

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