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Technology law column by Michael Geist

The Letters of the Law: The Year in Tech Law from A to Z

The past 12 months in law and technology were exceptionally active, with legislative battles over privacy and copyright, near-continuous controversy at the CRTC, and an active Supreme Court of Canada docket. A look back at 2011 from A to Z:

A is for the Amazon one-click patent, which is at the centre of a long running fight over the validity of business method patents in Canada.

B is for Baglow v. Smith, an Ontario Superior Court decision which ruled that comments on a blog should not necessarily give rise to a claim in defamation, when the person alleging defamation has a right of reply in the same blog.

C is for Century 21, which won a major case over Rogers Communications and its real estate search site Zoocasa. The case included important findings on online contracts, trespass, and copyright.

D is for the digital television transition, which finally occurred on August 31st.

E is for eHarmony, the online dating site that was the subject of a privacy commissioner investigation leading to changes to its customer data deletion practices.

F is for false news, which erupted as a controversy after the CRTC quietly proposed a significant change to the rules on false or misleading news broadcasts on radio or television.

Vic Toews' Lawful Access Deception

Early next year the government will introduce lawful access legislation featuring new information disclosure requirements for Internet providers, the installation of mandated surveillance technologies, and creation of new police powers. Public Safety Minister Vic Toews, the chief proponent of the new law, has defended the plans, stating that opponents are putting "the rights of child pornographers and organized crime ahead of the rights of law-abiding citizens."

Toews’ stance in the face of widespread criticism from the privacy community and opposition parties is likely to be accompanied by a series of shaky justifications for the legislation.

For example, the bill will mandate the disclosure of Internet provider customer information without court oversight - that is, without a warrant. Under current privacy laws, providers may voluntarily disclose customer information but are not required to do so.  Toews has argued that the mandated information is akin to "phone book data" that is typically publicly available without restriction.

Copyright in the Balance This Week at the Supreme Court of Canada

For most of the past hundred years, the Supreme Court of Canada heard the occasional copyright case with significant cases popping up once every ten or twenty years. That started to change in 2001 with a big case reaching Canada's top court every year or two. While that seemed like a busy schedule, it is nothing compared to the coming week, where the court will hear an unprecedented five copyright cases over the course of two packed days.

The cases feature a who's who of the Canadian copyright and communications world with the Entertainment Software Association of Canada (ESAC), Canadian Recording Industry Association, Apple, Bell Canada, Rogers Communications, and leading copyright collectives such as SOCAN and Access Copyright among the litigants.

The common theme among the cases is that they all originate with the Copyright Board of Canada. Whether the board is asked to establish tariffs for the communication of music or the copying of materials in schools, its decisions have become highly contested and invariably subject to judicial review.  

It is possible that the Supreme Court is chiefly interested in the administrative law issues raised by the board rather than substantive copyright questions. Should it choose to wade into the copyright concerns, however, two issues jump out as the key ones.

Digital Economy Strategy Has Become Government's "Penske File"

Earlier this month, Industry Minister Christian Paradis held a press conference to launch the Digital Technology Adoption Pilot Program, which will provide $80 million to small and medium sized businesses to integrate digital technologies. Paradis described the program as an important component of the government's digital economy strategy.

While the program may create some useful incentives for technology adoption, it was Paradis' reference to a digital economy strategy that attracted the attention of policy watchers. The digital economy strategy has emerged as the government's "Penske File", the source of considerable discussion and much "work" but thus far few tangible results (for non-Seinfeld watchers, the Penske file has become synonymous for a non-existent work project).

Most of Canada's trading partners have had digital economy strategies in place for years, using the policies to set goals for connectivity, guide investments in networks and digital infrastructure, as well as establish legal frameworks to provide privacy protection and enhance consumer confidence in electronic commerce.

Will Paradis Fail To Can Canadian Spam?

Last year, a Quebec court upheld the largest spam damage award in the world, ordering Adam Guerbuez, a Montreal-based email marketer, to pay Facebook $873 million dollars for sending millions of spam messages to users of the popular social network. Two months later, the Conservative government passed long overdue anti-spam legislation that finally established strict rules for electronic marketing and safeguards against the installation of unwanted software programs on personal computers, all backed by tough multi-million dollar penalties.

Then-Industry Minister Tony Clement promised that the law would "protect Canadian businesses and consumers from harmful and misleading online threats," but nearly a year later, the law is in limbo, the victim of an intense behind-the-scenes lobbying campaign that threatens to water-down the legislation such that Guerbuez, who maintains an active online presence, has publicly thanked the lobby groups for helping to keep him in business.

The spring election delayed the introduction of draft regulations for the anti-spam legislation, but since they were posted in early summer, lobby groups have used the process as an invitation to re-open the legislation and delay any implementation for months or even years. 

The CRTC’s Declaration of Independent ISP Independence

Last week, the Canadian Radio-television and Telecommunications Commission released its much-anticipated usage based billing decision. While the ruling only focused on the use of data caps (or UBB) as between Internet providers, the issue garnered national attention with over 500,000 Canadians signing a petition against Internet data caps and the government providing clear signals that it would overrule the Commission if it maintained its support for the practice.

The resulting decision seemed to cause considerable confusion as some headlines trumpeted a "Canadian compromise," while others insisted that the CRTC had renewed support for UBB. Those headlines were wrong. The decision does not support UBB at the wholesale level (the retail market is another story) and the CRTC did not strike a compromise. Rather, it sided with the independent Internet providers by developing the framework the independents had long claimed was absent - one based on the freedom to compete.

All Your Internets Belong to U.S.

The U.S. Congress is currently embroiled in a heated debated over the Stop Online Piracy Act (SOPA), proposed legislation that supporters argue is needed combat online infringement, but critics fear would create the "great firewall of the United States."

SOPA’s potential impact on the Internet and development of online services is enormous as it cuts across the lifeblood of the Internet and e-commerce in the effort to target websites that are characterized as being "dedicated to the theft of U.S. property." This represents a new standard that many experts believe could capture hundreds of legitimate websites and services.

For those caught by the definition, the law envisions requiring Internet providers to block access to the sites, search engines to remove links from search results, payment intermediaries such as credit card companies and Paypal to cut off financial support, and Internet advertising companies to cease placing advertisements.

While these measures have unsurprisingly raised concern among Internet companies and civil society groups, the jurisdictional implications demand far more attention. The U.S. approach is breathtakingly broad, effectively treating millions of websites and IP addresses as "domestic" for U.S. law purposes.

Net Neutrality Enforcement Put to the Test

The enforcement of Canada’s net neutrality rules, which govern how Internet providers manage their networks, was in the spotlight earlier this year when documents obtained under the Access to Information Act revealed virtually all major Canadian ISPs have been the target of complaints, but there have been few, if any, consequences arising from the complaints process.

The documents painted a discouraging picture, with multiple complaints against Rogers Communications due to the throttling of online games going seemingly nowhere, while a complaint against satellite Internet provider Xplorenet languished for months until the Commission threatened to launch a public proceeding.

In the aftermath of document disclosures, there has been slow but steady change.  In September, the Canadian Radio-television and Telecommunications Commission, the agency that established and enforces the net neutrality rules (known as Internet traffic management guidelines) issued a new advisory on responding to complaints and enforcing the rules.

Anti-Spam Law In Limbo As Lobby Groups Seek New Exceptions

Last December, the government celebrated passing eight bills into law, including the long-delayed anti-spam bill. Years after a national task force recommended enacting anti-spam legislation, the Canadian bill finally established strict rules for electronic marketing and safeguards against the installation of unwanted software programs on personal computers, all backed by tough multi-million dollar penalties.

Then-Industry Minister Tony Clement promised that the law would "protect Canadian businesses and consumers from harmful and misleading online threats," but nearly a year later, the law is in limbo, the victim of a fight over regulations that threaten to delay implementation for many more months.

Although support for anti-spam legislation would seemingly be uncontroversial, various business groups mounted a spirited attack against the bill during the legislative process, claiming requirements to obtain user consent before sending commercial email would create new barriers to doing business online.

Passing the anti-spam legislation ultimately proved far more difficult than most anticipated with groups seeking to water down tough provisions and greatly expand the list of exceptions to the general rules on obtaining user consent.

Is the Government’s Open Initiative Now Closed?

The Canadian government unveiled its open government initiative amid considerable fanfare earlier this year. Just days before the spring election, then-Treasury Board President Stockwell Day announced specific commitments to open dialogue and open government involving three separate streams.

First, an open data stream, in which government data would be made openly available to the public so that it could be leveraged for new purposes without the need for prior permission. Open data initiatives by governments around the world have generated dozens of commercial and non-commercial websites that add value to the government data. Some make the data more understandable by using interactive maps to provide visuals about where activities are taking place (e.g. government spending projects). Others make the data more accessible by offering services to customize or deliver government information (e.g. postal codes to allow public interest groups to launch advocacy campaigns). The crucial aspect behind these initiatives is that the government makes the data available in open formats free from restrictive licences so companies and civil society groups can create innovative websites, tools, and online services.

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