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Code Yellow: Threats to Freedom of Expression, Online and Off, in Canada

This morning the Huffington Post published an article I wrote for PEN Canada as part of its ‘Non-Speak Week’, “a string of events and exchanges exploring the state of freedom of expression here in Canada”, according to the group. The original version of the piece, with links, is reproduced below.

We reach certain points in time, what the critical media scholar Robert McChesney calls “critical junctures”, or that the sociologist and media historian Paul Starr calls “constitutive moments”. Now is one such moment, and choices and decisions made nowcould tilt the evolution of the network media ecology in Canada toward a more closed, surveilled and centralized regime instead of an open one that strives to put as much of the internet’s capabilities into as many people’s hands as possible. The latter approach maximizes the diversity of voices and is essential to any free press — digital, networked, or otherwise — and to the role of communications media in a democracy.

Threats to an open media and internet ecology, and thus to creative and expressive freedoms in Canada, are unlikely to arrive outfitted in jackboots. Instead, they will arise from the slow, cumulative outcome of decisions that will affect levels of media and internet concentration, internet surveillance for law enforcement and national security reasons, and a concerted push to turn internet service providers (ISPs) and digital intermediaries such as Google and Twitter into agents on behalf of the entertainment and software industries’ copyright maximalist agenda.

In terms of media and internet concentration, Canada already has some of the highest levels of concentration and cross-media ownership in the world. The ‘big four’ telecom-media-internet (TMI) giants – Bell, Shaw, Rogers and Quebecor Media Inc. – already control roughly half of the network media economy in Canada. This is set to get much worse if the CRTC gives Bell’s bid to take-over Astral Media the green light in a decision expected later this year.

The problem of media and internet concentration is crucial to freedom of expression for many reasons. First, large TMI conglomerates are often rickety enterprises that spend more to pay down the debt incurred by acquisitions and mergers than good journalism, investment in new technology and infrastructure, or supporting open media.

Second, these same entities have turned to soft tools of censorship such as usage-based billing and bandwidth caps to protect their investment in legacy media and which are transforming the user-centric internet into the pay-per Internet. Such measures constrain what we can and cannot do with our internet connections. They privilege incumbents’ own online video services while discriminating against other sources. Bandwidth caps are not unique to Canada, but the fact that they are near universal among the big players and set at very low levels with high prices relative to global standards, does set us apart from the rest of the world.

Lastly, a small number of massive integrated media and internet companies are more regulable than many entities of different stripes and sizes. In short, a few big firms make for juicy targets for those who see them as potential tools in their own efforts to push either a law and order agenda, as was the case last year with the Investigative Powers for the 21st Century Act (Bill C-51), or part of the arsenal of a strong copyright enforcement regime, as some sought but did not fully achieve with the Copyright Modernization Act passed earlier this year.

I think we need to push back against the tide. As part of my efforts to do so, over the past year I joined with the Digitally Mediated Surveillance research project and the New Transparency Project to create a video to discuss why internet surveillance and the Harper Government’s proposed lawful access bill specifically are bad for privacy, democracy, civil liberties and an open internet.

That bill died last Parliament and was to be reintroduced with the Government’s omnibus crime bill passed earlier this year. Its essential aim was to have ISPs and telecommunications providers retool their networks with far greater surveillance capabilities and to require telecoms providers, ISPs and search engines to disclose subscriber information, including name, address, IP address, and email addresses, to law enforcement officials without court oversight.

Fortunately, this aspect of the omnibus bill was stripped out at the last minute in the face of withering public criticism led by groups such as Open Media, dissent within the ranks of the Conservative Government, and even a broadside against it in one of Rick Mercer’s famous rants.  The victory is significant, but a similar bill sits in the wings waiting for an opportune moment to be reintroduced. Moreover, University of Ottawa law scholar Michael Geist observes that telecoms providers and ISPs already comply with over 90% of requests from law enforcement requests for information about their subscribers without a warrant.

As I said earlier, a few massive firms are more likely to be pliable entities than recalcitrant ones. This example shows that this is, in fact, the case. Such murky ties outside the formal rule of law do not bode well for freedom of expression in Canada, online or off. For an open network media ecology and citizen’s rights to autonomy and to express themselves freely to flourish, the collection, retention and disclosure of personal information between private media companies and the state should be minimized, not maximized.

The final factor in this trilogy of forces bearing down on an open internet is the copyright maximalist agenda. A strong version of this was visible earlier this year in the United States with the Stop Online Piracy Act, or SOPA. SOPA would have required: (1) ISPs to block access to ‘rogue websites’, (2) search engines to make such sites disappear from their results, (3) payment providers like Paypal and Visa to cut-off payments, (4) and advertisers to cut-off suspect sites from advertising placement, among other things.

The fundamental remaking of the Internet such activities contemplated unleashed a firestorm of protest, ultimately leading to a tactical withdrawal of SOPA. Yet as SOPA was being withdrawn in the US, copyright maximalists here in Canada were on a roll.

They deployed their hyperbolic rhetoric that carved up the world into good guys and bad guys, with repeated references to “wealth destroyers”,  “parasites”, “rogues” and “pirates” to make their case for why Canada needs strong digital locks, longer copyright protection terms, and for ISPs and search engines to step up to the plate on their behalf.

Copyright maximalists spurned claims that their agenda had anything to do with freedom of expression, but last year a United Nations’ report on internet and human rights argued exactly the opposite point of view:

“. . . [C]utting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, [is] disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights” (p. 21).

Article 19, in case you didn’t know, sets out freedom of expression and opinion as a fundamental human right at the global level and calls on the 167 countries that are party to it to promote and protect such rights to the fullest extent possible.

In a powerful testament to the ability of “the Public” to influence arcane matters of policy and law, the copyright maximalist’s got only a fraction of what they wanted: digital locks yes, but no term extensions or requirement that ISPs, search engines and other digital intermediaries serve as tools on their behalf.

These examples suggest that when it comes to freedom of expression, there will be no smoking gun, just a slow tilt biasing the evolution of the telecom-media-Internet infrastructure in favour of greater control on behalf of incumbents, the state and copyright maximalists. For freedom of expression to flourish, we need to keep our eyes wide open to such efforts by stealth that seek to transform the network media ecology into one that is more closed, controlled and regulable.

(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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