Technology law column by Michael Geist

The House of Commons may have been quiet but the calls for a national digital strategy have grown louder in recent months.  Last week, the International Telecommunications Union issued its annual global measurement of the information society, which served again to highlight Canada’s sinking global technology ranking.  Canada ranked 21st (down from 18th in 2007) in its ICT Development Index, which groups 11 indices including access, use, and technology skills.  

Canada’s sliding global ranking reflects 10 years of policy neglect.  Other countries prioritized digital issues while leaders here from all parties have been content to rest on the laurels of the late 1990s, only to wake up to a new, less-competitive reality in 2010.

Industry Minister Tony Clement has spoken frequently about the need for a national digital strategy, but concrete policies have been slow in coming.  The parliamentary restart presents another opportunity for action.  Given the failure to date to articulate a comprehensive digital strategy, perhaps a different approach might work.

Each April, the United States issues the Special 301 Report, which examines the intellectual property laws of its main trading partners.  For the past 15 years, Canada has been included on the watch list of countries the U.S. believes need reform.

As the U.S. prepares its 2010 edition, for the first time it invited the public to provide their comments on the process and the link between intellectual property and trade policy.  Among the hundreds of submissions, one from the Computer and Communications Industry Association stands out as critically important to Canada.

The CCIA represents a who's who of the technology business world, with a membership roster that includes Microsoft, Google, T-Mobile, Fujitsu, AMD, eBay, Intuit, Oracle, and Yahoo.  While critics of Canadian policy might expect these business heavyweights to chime in with their own criticisms, they took the opposite approach. 

Last fall, the Canadian Radio-television and Telecommunications Commission issued its much-anticipated Internet traffic management ruling, better known as the net neutrality decision. The case attracted national interest as the CRTC established several key requirements for Canada’s Internet providers.

These included new transparency obligations that forced ISPs to disclose their network management practices, such as why the practices were introduced, who will be affected, when it will occur, and how it will impact users' Internet experiences (down to the specific impact on speeds). The CRTC also opened the door to complaints about network management practices by establishing a test that any harm to users be as little as reasonably possible.

Several months later, Canada's ISPs have had ample time to comply with the new requirements, yet a review of the policies from the biggest ISPs - including Bell, Canada Rogers Communications Inc., Shaw Communications Inc., Telus, Cogeco, Inc. and Groupe Vidéotron - reveals a decidedly mixed bag.

In 2004, Ian Andrews purchased a Dell laptop computer for $1,700.  About 2 1/12 years later, the computer began to malfunction, periodically shutting down unexpectedly. Stuck with a problem computer that was past the standard warranty period, Andrews complained to Dell.  The computer giant responded that the online contract governing the initial purchase required him to resolve the dispute by arbitration.

Andrews recognized this was not a realistic approach, later stating that as a university student he was not in a financial position to retain counsel to support an arbitration claim. Instead, he chose a different course of action, suing the company as part of a class action lawsuit that brought together thousands of consumers experiencing similar problems.

Dell challenged the class action suit, but last month the Ontario Court of Appeal sided with Andrews, ruling that it could proceed.

In recent years, Canadians have become increasingly accustomed to hearing about Internet success stories elsewhere with fewer examples of homegrown initiatives. However, an unlikely Canadian online video success has emerged recently that has not received its due - the National Film Board of Canada’s Screening Room. 

The NFB may never replace YouTube in the minds of most when it comes to Internet video, but a series of innovations have highlighted the benefits of an open distribution model and the potential for Canadian content to reach a global audience online.

Last year, just months before the NFB celebrated its 70th anniversary, it launched the NFB Screening Room, an online portal designed to make its films more readily accessible to Canadians and interested viewers around the world.  To meet its objective, it committed to be as open, transparent, and accessible as possible, including making the films freely available and embeddable on third party websites.

Canadian officials travel to Guadalajara, Mexico this week to resume negotiations on the still-secret Anti-Counterfeiting Trade Agreement.  The discussion is likely to turn to the prospect of supporting three-strikes and you’re out systems that could result in thousands of people losing access to the Internet based on three allegations of copyright infringement. Leaked ACTA documents indicate that encouraging the adoption of three-strikes - often euphemistically described as "graduated response" for the way Internet providers gradually send increasingly threatening warnings to subscribers - has been proposed for possible inclusion in the treaty.

While supporters claim that three-strikes is garnering increasing international acceptance, the truth is implementation in many countries is a mixed bag.  Countries such as Germany and Spain have rejected it, acknowledging criticisms that loss of Internet access for up to a year for an entire household is a disproportionate punishment for unproven, non-commercial infringement.

The new year is less than three weeks old, but the Canadian Internet story of 2010 may have already taken place. Ridiculed by political parties and analysts, the growth of the Canadians Against Proroguing Parliament Facebook group, which now has more than 200,000 members, provides the clearest indicator yet of how poorly the Canadian political community understands social media and digital advocacy.

When the Prime Minister announced he was proroguing parliament in the midst of the holiday season, political commentators applauded the tactic, confident that few Canadians would notice or care.  In less than three weeks, Christopher White, a university student from Alberta, proved the experts wrong, building the largest Facebook group in the country, one that's the focal point for national discussion and voter discontent.  

As the group began to take flight, it was surprising to see political leaders and analysts blithely dismiss the relevance of Facebook advocacy. Editorials pointed to other large groups to demonstrate the group's irrelevance, noting that joining a Facebook group was too easy - just click to join - to mean much of anything.

This represents a shocking underestimation of the power of digital advocacy, which today is an integral part of virtually every political or business advocacy campaign.

Last month, the Canadian delegation at the Climate Change Conference in Copenhagen found itself targeted by the Yes Men in a widely publicized hoax.  The well-known activists satirized the Canadian government’s position on the environment by launching a pair of phoney websites that looked official but promoted different policies.

The hoax attracted considerable media attention, prompting Prime Minister's Office spokesman Dimitri Soudas to label it a childish prank.  Soon after, Canadian officials quietly set out to shut down the two websites.  

What followed creates a cause for concern, because Environment Canada appears to have misrepresented the harms posed by the sites in an effort to force them offline without a court order.

Predictions about future technology law and policy developments are always fraught with uncertainty, yet identifying the key players is a somewhat easier chore.  Although Parliament is not scheduled to resume until March, the following 10 are likely to lead the way in Canada in the coming year.

Tony Clement, federal Industry Minister.  From anti-spam legislation to the national copyright consultation, Clement demonstrated a keen interest in technology issues during his first year as industry minister.  2010 should be no different, with privacy reform legislation, a new copyright bill, and rules for another wireless spectrum auction all on the agenda.  To top it off, Clement has sent strong signals that he wants to forge ahead with a long-overdue national digital strategy.

James Moore, federal Canadian Heritage Minister.  Young, bilingual, and tech-savvy, Moore broke the mould for a minister of Canadian heritage. This year will present Moore with at least two highly contentious issues likely to leave many unhappy: copyright reform and fee-for-carriage for television broadcast signals.

The past twelve months in law and technology were exceptionally active, with new legislation, Canadian Radio-television and Telecommunications Commission hearings, national consultations, and very public battles over digital issues. A look back at 2009 from A to Z:

A is for the Anti-Counterfeiting Trade Agreement, the secret copyright treaty that generated opposition at home and abroad as details on proposed language leaked out.

B is for Chet Baker, the former jazz great and current lead plaintiff in a $6 billion copyright class action lawsuit filed against the Canadian recording industry for its failure to pay artists for the use of their work.

C is for the Conference Board of Canada, which withdrew three intellectual property reports after acknowledging they contained plagiarized material.

D is for drugs for Africa legislation, which unexpectedly passed second reading in the House of Commons and will be considered by a committee next year.
 
E is for eBay power sellers, who faced an aggressive campaign by the Canada Revenue Agency to collect unpaid GST.  The campaign followed a successful legal effort to force eBay to disclose the sellers' identities.