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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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About the Other Day: Lawful Access and ISPs in Canada

The other day I pounded away madly on the keyboard about global internet regulation. I was perturbed by the preliminary ‘e-G8’ meetings convened by President Sarkozy that seemed mostly designed to push a regulated Internet on the basis of bringing order to a disorderly and criminal Internet. It was a bad idea I said.

Here, though, I want to speak about the push for similar measures in Canada. As I see things, an open network is caught in the cross-hairs of several forces at the present moment:

  • first, we have the well-known issues of UBB and bandwidth caps that are transforming the open and user-centric Internet into the pay-per Internet;
  • second, we have the copyright industries pushing for ISPs and search engines to become extensions of the copyright enforcement regime;
  • third, each of the ‘big six’ ISP’s ‘acceptable use policies’ contain extensive measures that constrain what people can and cannot do with their Internet connections;
  • fourth, proposals in the Investigative Powers for the 21st Century Act (Bill C-51) introduced in the last Parliament and set to be reintroduced with the new Government’s omnibus crime bill sometime soon aim to retool communication networks in Canada for greater surveillance capabilities and to make it mandatory for telecoms providers, ISPs and search engines to disclose subscriber information, including name, address, IP address, and email address law enforcement official without court oversight.

This post focuses on the latter initiative, and what is known as ‘lawful access’. As with the rhetoric mobilized by Sarkozy, underpinning the push for greater surveillance power and easier access to records of Internet users is the idea that the Internet is disorderly and unruly place.

Yet, we must remember that in Canada, the Criminal Code already covers the Internet and crimes in real space are also crimes in cyberspace, notably child pornography, ‘hate crimes’, and obscenity. In other words, the Internet is not the wild west without the rule of law in place.

The Government wants to, it says, simply update and ‘modernize’ the existing arrangements with the Investigative Powers for the 21st Century Act (Bill C-51), a move which they say is long overdue because the existing laws were put into place when there was no such thing as the Internet. The Canadian Internet Policy and Public Interest Centre (CIPPIC) offers a good historical review of the current bill and its predecessors here.

In some ways, the Government claim is true. Public communication networks have always been intertwined with the interest and operations of the nation-State. That was as true for Roman roads and Venetian canals in the past, as it has been for the telegraph, postal and other media networks that have evolved up until today.

From emergency 911 services, spectrum grants to police and firefighters, and the Defense Early Warning (DEW) line in Northern Canada during the Cold War (and lucrative development ground for what eventually would become Nortel, before it crashed and burned on the embers of dot.com stupidity), the state and communications providers often work hand in glove. Silicon Valley North, as some in Kanata like to say, ain’t next to Ottawa (and the DND, or CSIS, or the Communication Security Establishment) for nothing.

In the past, some heterodox media political economists such as Dallas Smythe and William Melody complained that building networks to high-end national security, military, law enforcement and business needs created gold plated networks that were effectively subsidized by the general telephone subscribers.

Yet, just because there is nothing new in telecoms companies being deeply involved in matters of the state and law, this does not mean that there is not a lot that is new in the Government’s proposed legislation.

The new legislation:

  • is not based on compelling arguments that it will deal better with crimes in cyberspace — child pornography, ‘hate crimes’, and obscenity –than the Criminal Code, without unduly stifling the free of expression in network media spaces.
  • would require telecoms providers, ISPs and search engines to adopt expensive ‘network upgrades’ that expand their capacity to collect and retain ‘general contact data’ for all of their subscribers and even for specific contents of our online communications.
  • to disclose this information to law enforcement and national security agencies upon request.
  • to do so without a court-authorized warrant.

A few journalists and bloggers have issued alarmist calls that the new legislation would effectively outlaw anonymity and certain kinds of hyper-linking. I don’t think so.  Michael Geist and the legislative review of the Investigative Powers for the 21st Century Act done by the Library of Parliament show convincingly enough that that’s not likely to happen.

It will, however, implement several new measures that will skirt, or bypass existing practices: no court orders, wide-scale implementation of news surveillance technologies, and procedures that have left all of Canada’s provincial Privacy Commissioners and others strongly opposed to the Conservative’s proposed new law.

One virtue of the Investigative Powers for the 21st Century Act (Bill C-51) is that it will bring out into the open and formalize in law a set of ‘voluntary’ practices that are already used to combat ‘cybercrimes’, but currently conduced behind closed doors.

Project Cleanfeed, for instance, involves ISPs working hand-in-hand with police to identify and block problematic URLs, mostly for the purposes of blocking access to child pornography and to facilitate investigations of such activities. The RCMP works hand-in-hand with the Immigration and Customs Enforcement (ICE) in the United States and thirty some odd similar agencies worldwide to disable access to ‘illegal websites’, so-called ‘domain name seizures’. The new law would match up with the facts on the grounds as they’ve already been established by ‘the State’.

The problem, however, is enrolling telecoms providers, ISPs and search engines in such processes to begin with. Up until now, ISPs act in tandem with the police through secret lists, no CRTC oversight, no court orders, etc. in Project Cleanfeed. Formalizing the requirement that they continue to take on this role, and to do so at the beck and call of national security agencies and cops rather than a court authorized warrant, takes a very bad route to a potentially good thing. Legalizing ‘rough justice’ and a murky role for ISPs does not sound like a good idea to me.

As I said earlier, telecoms companies have always had to build their networks equipped for national security and law enforcement purposes, and to comply with court orders when they are presented with them. That should continue to be the case today, with more candour and conformity to the concerns of privacy raised by, among others, all of the Provincial privacy commissioners pointed to above.

Basic rule in all of these cases, and regardless of whether it is the state or market interests that are bending basic networks and functionalities (i.e. search, storage, surveillance, etc.) to their purposes, is that gateways (telecom networks and ISPs) should never be gatekeepers. The goal should be to minimize rather than to maximize surveillance and ‘gatekeeper’ powers.

The idea of badly authorized and murky intelligence operations running roughshod on the public Internet is not a dystopian and remote fantasy. Over three quarters of U.S. military communications runs on the public netowrk. All submarine cables landing on U.S. shores must be equipped with electronic surveillance capabilities built to the specs of the U.S. state. Aspects of the common carrier/network neutrality obligations for telecoms and ISP providers in the U.S. were traded off in 2005 in return for major telecoms providers upgrading their networks in line with the asserted needs of a ‘post 9/11 world’.

Under the guise of the ‘global war or terrorism’, all of the major US telecoms and ISPs — AT&T, Verizon, SBC, Sprint, etc. (except, to its credit, Qwest) turned over these capabilities to the National Security Agency to eavesdrop on telephone, email and Internet communications between people in the US and elsewhere in the world. Again, while the objectives may have been legit, the operation skirted the existing laws and the courts found such activities illegal and claims that President Bush had unbound ‘wartime powers’ unjustified as New York Times’ reporters James Risen and Eric Lichtenblau revealed in December 2005 — albeit, after the New York Times had sat on the article for a year.

Congress rewrote the law in 2008 to bring the law into line with the facts that the Bush Regime had established on the ground. The new law also gave AT&T, et. al. retroactive and future immunity from prosecution when dealing with similar requests. A Second Circuit Court of Appeal in New York put the issues back into play recently when it reinstated a lawsuit by human rights groups, journalists, media organizations, labour unions and others who argue that Internet and telecoms surveillance violates their rights to privacy and freedom of expression (See here for a fuller treatment of the issues).

I am concerned that, from the general drift of things in the Investigative Powers for the 21st Century Act, as well as the lessons from the past decade in the U.S. and the choir of voices coming from the G8 last week about the need to ‘civilize’ cyberspace, point in the wrong direction: a more tightly regulated, closed and murky Internet. Basic standards of judicial oversight are removed and capacities expanded. There are pressing issues at hand, but they need to be handled with dexterity rather than the iron-fist of the national security state.

Just for fun, let me point to just one alternative way of doing things: the Icelandic Modern Media Initiative, a drive to adopt the most open and freedom of the press and communication-friendly environment in the world. Here’s a Youtube video outlining some of its ideas and ideals. Imagine. .

Global Internet Regulation: Tightening the Screws?

Last week in the run-up to the G8 leaders meeting in France, French President Nicolas Sarkozy convened a conference among prominent media and Internet types. The goal: how to ‘civilize’ the Internet.

As Sarkozy said,

The internet is the new frontier, a territory to conquer. But it cannot be a Wild West. It cannot be a lawless place, where people are allowed to pillage artistic works with no limits.

And you know what, he’s right. The Internet should not be a lawless frontier disconnected from the real world, and it is not. It is already deeply shaped by the same legal, political, economic and social forces that govern our actions daily.

That said, the crux of the approach being advocated by Sarkozy, and perhaps to come out in a communique at the end of the G8 meetings, is that Internet Service Providers, search engines and others are being ‘deputized’ to act on behalf of law enforcement officials and vested interests in the entertainment and ‘copyright industries’ (see the New York Times story as well). That is, they are being turned into adjuncts of both the state and vested interests to deal with matters that are, some more than others, sordid ones indeed: child pornography, money laundering, counterfeit goods and software and, of course (and in some instances) large-scale enabling of copyright infringement.

Of course, I’m the last to stand in support of child porn, money laundering, industrial scale piracy, and so forth. However, I am opposed to the full-court press that is now coming from three directions that aim to turn ISPs and search engines from being ‘gateways’ to the Internet to ‘gatekeepers’.

First, and largely since 2008, ISPs have come under a full-court press by the Recording Industry Association of America and the International Federation of Phonographic Industries (IFPI) to adopt a notice and take-down procedure. In this situation, once notified of allegations of copyright infringements, ISPs would block Internet users access to such content and, in some cases, cut off repeat offenders. Search engines would essentially make such content disappear by turning up a blank when suspect sites were queried.

The problem with this is already well-known: the gap between what is allegedly an infringement and what the law in each country actually determines to be so is big indeed. What typically happens is that private contractors using automated ‘notice and take-down’ systems take a shotgun approach, capturing much that is on the side of right in the process.

People caught in the cross-hairs have a steep hill to climb to prove their innocence. That is wrong because it turns presumptions of innocence on their head. Here’s a link to the Electronic Frontier Foundations “Takedown Hall of Shame” to get a sense of how overly-broad notices also curtail freedom of expression.

Second, Digital Rights Management (DRM) technologies began to go out of favour in the last few years, but as they were being abandoned, after 2008 the RIAA and its international counterparts were signing new memoranda of understanding with ISPs that enrolled the latter in the effort to combat piracy. The RIAA and IFPI have also pushed hard for national laws to accomplish the same ends. In other words, the RIAA is using technology, States and Markets to accomplish its goal of clamping down on content.

Sarkozy and the French Government were early and enthusiastic endorsers of such efforts and the three strikes law in France is considered by most to be particularly draconian. The IFPI has also chalked up several wins for such measures in other countries as well, including Sweden, South Korea, Taiwan and the UK, among a few others (see pp. 25-27).

Now, however, and at least in Britain such measures are under severe challenge in the courts by way of initiatives launched by two of Britain’s biggest ISPs, BT and TalkTalk, and in the court of public opinion, where they are losing badly. Yet, just as such measures come under severe criticism and challenge in some countries, they are being expanded in others.
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