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(Un)Lawful Access: Wiring Canada’s Networks for Control

The Conservative Government is off and running. A majority in hand, it is already driving through on its legislative agenda. An already in just the last week, we have seen several items of critical importance to the network media in Canada:

1.The Copyright Modernization Act (Bill C-11) was introduced Thursday last week, a copy of the bill that died when the election was called. The new bill was the third on list of items introduced by the government this session. Digital locks and new rules requiring ISPs to formally block certain websites under court order and to routinely take on ‘intermediary roles’ on behalf of copyright industry claimants are its irredeemable Achilles heal, despite the fact that there are some good measures on it.

I have had my say on this before, and you can see my views here. Michael Geist has a good sum of the implications of the new Copyright Modernization Act here. On ISP website blocking and intermediary roles, the Government’s explanation of the measures is clear enough and can be seen here.

2. Konrad von Finckenstein won’t be coming back to the CRTC after January 2012. The government wants to appoint someone more compliant. It will not have any problem in that regard, with a gaggle of the underserved far worse than KvF standing in line (i.e. the I-don’t-know-jack-about-media Harper appointee, T. Pentefountes; the wireless industry’s kingpin and ex-Conservative Premier of New Brunswick, Bernard Lord; Quebecor Media Inc’s (QMI) front man Luc Benoit; and former Minister of Foreign Affairs, Lawrence Cannon).

Just what we need, more political hacks overseeing the development of the network media in Canada at such a critical time. I called it crony capitalism a while back, and it looks like it’s about to get worse. An independent and network free press depends on autonomy from Government, not for supplicants from one government after another to be spread throughout the media system.

3. A third item has not yet appeared, to some people’s surprise, given that it was supposed to be a prominent piece of the Government’s omnibus crime bill: so-called “lawful access” legislation. While held back from the omnibus crime bill, you can rest assured that it will be coming back.

A cornerstone of this push last Parliament was the Investigative Powers for the 21st Century Act (Bill C-51), a bill which would make it mandatory for telecoms providers, ISPs and search engines to disclose subscriber information, including name, address, IP address, and email address, to law enforcement officials without court oversight. It would also require costly upgrades to these networks to enable new surveillance capabilities. The post I wrote on the topic can be seen here.

I have said for some time that ISPs and other network, search and social media providers should not be turned into gatekeepers acting on the behalf of either commerce or the state. Lawrence Lessig said the same thing ago in his classic, Code and other laws of cyberspace. This is a principle and one that should not be thrown under the bus. Creating an open network media system requires that the collection, retention and disclosure of subscribers’ personal information be minimized, not maximized.

Coupled together with the new requirements for ISPs to block websites and take on intermediary roles in the Copyright Modernization Act, the requirements included in the Government’s surveillance and lawful access legislative proposals to date cut intensive gatekeeper functions. Don’t look for a smokin gun, but a serious tilt slowly biasing the evolution of Canada’s telecom-media-Internet infrastructure in the favour of greater control and away from a transparent and open model of the open Internet.

We reach certain points in time, what the critical media scholar Robert McChesney calls “critical junctures”, or which the sociologist and media historian Paul Starr calls “constitutive moments”. We are in one such moment at present, I believe, and choices and decisions made now will tilt the evolution of the network media away toward a much more closed, surveilled and centralized regime than the open and distributed one, with the latter being the ideal because it strives to put as much of any networks’ capabilities at the ends of the networks and into as many people’s hands as possible. It is called maximizing the diversity of voices and it is a principle essential to any free press — digital, networked, or otherwise — and to the role of communications media in a democracy.

I think we need to push back against the tide. As part of my efforts to do so, over the past several months I joined with a number of groups and academics to produce a short video on the Conservative Governments proposed lawful access legislation. The efforts involved the Digitally Mediated Surveillance (DMS) research project (http://www.digitallymediatedsurveillance.ca/), the New Transparency project (http://www.sscqueens.org/projects/the-new-transparency/about), and features renowned Canadian academics discussing why cyber-surveillance and this lawful access legislation in particular is problematic for the future of privacy, democracy, civil liberties and the open internet.

The video is also part of a national campaign led by a coalition of academics and civil society groups, notably OpenMedia.ca, to on lawful access and cybersurveillance. One goal of that campaign was to have such legislations separated out from the Conservative’s Omnibus crime bill, and ensure the legislation receives full parliamentary debate (http://www.stopspying.ca/). That goal has been achieved. Now, it’s the tough part: the debate that will help determine whether networks will be designed and operated to minimize or maximize the collection and disclosure of personal information.

The full video, Unlawful Access: Canadian Experts on the State of Cyber-Surveillance, can be seen here:

An extended video interview with yours truly is available here:

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