by Sharon Polsky
President and CEO — AM¡NAcorp.ca
National Chair — CAPAPA
The recent discussion about Usage Based Billing being a ‘cash grab’ has generated much debate: Is a cash grab warranted? Should Internet users have to pay according to the volume they download?
Does UBB discourage innovation?
The simple answer to the underlying question is:
ISPs and telcos need a way to fund
the Internet monitoring functions required by
the Anti Counterfeiting Trade Agreement (ACTA) and Canada’s Investigating and Preventing Criminal Electronic Communications Act (Bill C-52).
To understand the real impact, though, it is important to view UBB in context with other issues, which together:
- jeopardize the sovereignty of our nation,
- have a chilling effect on freedom of expression, and
- threaten the privacy and democratic freedoms traditionally enjoyed in Canada.
It can be argued that these measures do nothing to protect Canada or Canadians from the threat of terrorism (real or perceived), US protectionism or other economic threats, or future retribution by the Department of Homeland Security or other agencies.
UBB In Context
ACTA (the Anti-Counterfeiting Trade Agreement) is an international agreement to protect intellectual property and guard against piracy. It was hammered out by a handful of countries and requires signatories to have civil and criminal law that complies with it. Canada may have bargained away our ability to create independent legislation simply by being a party to ACTA, with terms allowing Canada to pass laws more stringent than required, but depriving us of the authority to create laws that contravene ACTA. This clearly undermines Canadian sovereignty.
ACTA was Negotiated in Secret
The US declared the draft ACTA text to be confidential as a matter of national security (the economy is a matter of ‘national security’ in both the US and Canada) so negotiation of the international scheme to guard against piracy and copyright infringement was done in secret, with a level of secrecy that excluded input from Canadian citizens, consumer and human rights groups, or Canada’s Information and Privacy Commissioner; yet the draft was circulated amongst rights-holder lobbyists (generally from the recording and motion picture industries). Many experts consider this to be an unprecedented degree of secrecy for a set of copyright protection rules.
Once approved, ACTA member countries are expected to put pressure on their trading partners to have them join the treaty — of course, after ACTA is finalized, so the newcomers will have no option but to accept the terms set by the original negotiating parties.
Prosecution, Remedies and Penalties under ACTA
Under ACTA, allegations advanced by rights holders lead to prosecution, remedies and penalties decided by judicial or ‘administrative’ authorities, with restitution and “lost profits” calculated by the rights holder. Although an alleged infringer can be ordered to reimburse the rights holder for the retail price and “lost profits”, legal expenses, court costs, and other amounts, as well as bearing the expense of destruction of allegedly counterfeit products, if it’s ultimately found that there was no infringement, the alleged infringer can ask for damages, but no process or formula is articulated.
Border officials will be compelled to carry out injunctions obtained in other countries, even if legal in the border official’s country. ACTA will also:
- facilitate seizure of off patent medicines in the country of production and export,
- empower member countries to seize and destroy exports while in transit to other countries
- encourage countries to seize and inspect personal devices for any pirated material
The costs will be born by the individual being searched or the sender of the seized goods.
Privacy invasive provisions require release of personal identity information about alleged infringers, and information about any party who might be associated with alleged infringers are included in ACTA.
Third parties (i.e., distributors, NGOs, public health authorities) are put at risk of injunctions, provisional measures, and even criminal penalties, including imprisonment and severe economic losses:
- Suppliers of active pharmaceutical ingredients used for producing generic medicines;
- distributors and retailers who stock generic medicines;
- NGOs who provide treatment;
- funders who support health programs; and
- drug regulatory authorities who examine medicines
could be implicated under ACTA. Ascertaining the third party involvement will require inspecting digital records; and ACTA compels disclosure and international sharing of that information.
Potential repercussions may well deter direct or indirect involvement in research, production, sale and distribution of affordable generic medicines.
Deep Packet Inspection (DPI) of online activity is already being used to identify alleged infringements. DPI has been in use by Canadian ISPs and telcos for some time. In August 2009, Canada’s Privacy Commissioner ruled on DPI used by Bell/Sympatico (Case Summary #2009-010). The Commissioner recommended that Bell Canada inform customers about Deep Packet Inspection, but did not prohibit its use.
“It is relatively easy to paint a picture of a network where DPI, unchecked, could be used to monitor the activities of its users.”
Financial Impact of Bill C-52
Bill C-52: An Act regulating telecommunications facilities to support investigations
— referred to as the “Investigating and Preventing Criminal Electronic Communications Act” — is only one of the many ways that Canada is giving force and effect to ACTA.
C-52 is intended “to ensure that telecommunications service providers have the capability to enable national security and law enforcement agencies to exercise their authority to intercept communications and to require telecommunications service providers to provide subscriber and other information” upon request.
No warrant is necessary.
C-52 also requires the telcos and ISPs to provide the transmissions in an unencrypted form and to “comply with any prescribed confidentiality or security measures“.
to provide “any information in the service provider’s possession or control respecting:
- the name,
- telephone number and
- electronic mail address of any subscriber to any of the service provider’s telecommunications services and the
Internet protocol address,
- mobile identification number,
- electronic serial number,
- local service provider identifier,
- international mobile equipment identity number,
- international mobile subscriber identity number and
- subscriber identity module card number that are associated with the subscriber’s service and equipment”.
Under current Canadian law, Internet Service Providers who have the means to spy on their customers (Deep Packet Inspection capability) can be asked to do so by the government, but they cannot be compelled to have such means.
Under C-52, Telcos are required to have and bear the cost of the equipment necessary to comply; and the equipment can be specified by the government or enforcement agencies. The cost of actually determining and providing the information to law enforcement will be billed to and paid by the requesting agency — with our tax dollars.
Usage Based Billing could well pay the costs of the Government mandated spyware that will be required should Bill C-52 become law. Not only will citizens find themselves stripped of privacy and spied on but we will be overcharged to pay for it.
The Future of ACTA
The ACTA text was finalized in November 2010, and the US and Canada (quietly) asked for feedback to be submitted by February 15th, 2011. The request was visible on the DFAIT website for a short time.
ACTA participants successfully completed a legal verification of the finalized ACTA text at a meeting in Sydney, Australia between November 30 and December 3, 2010.
The Standing Committee on Canadian Heritage met to discuss ACTA and other matters on January 31, for 2 hours, and was scheduled to meet again on February 7, 2011.
The final ACTA text includes mechanisms to amend the agreement. That provides a ‘back door’ to get acceptance of the most contentious issues (such as the three strikes rule) that were rejected during the negotiations.
Even before the three strikes rule is adopted, the scope of ACTA provides the latitude that permits individual member nations to impose a three strikes rule.
So between ACTA and other laws, international agreements, and multilateral treaties to share information it’s easy enough to circumvent the provisions of Section 8 of Canada’s Charter of Rights and Freedoms and to circumvent the protections embodied in all of Canada’s various privacy laws.
Canadians’ most intimate information can be sent outside of Canada to be examined, and then the results back into Canada. Canada and the US have been known to do that on occasion, typically to protect ‘national security’ or guard against the perceived threat of ‘terrorism’.
Stripping Canadian Law of citizen protection measures that have evolved over hundreds of years has not been shown to protect citizens from terrorism, but rather to open up new avenues of compromising and removing the Rights and Freedoms Canadians expect to enjoy under our democratic system.
Guest blogger Sharon Polsky is the President & CEO of AM¡NAcorp.ca as well as the National Chair — CAPAPA More background can be found in Anti-Counterfeiting Trade Agreement (ACTA) Highlights
Canadian Charter of Rights and Freedoms: “Every Canadian Needs A Copy” released under a Creative Commons Attribution 2.0 Generic (CC BY 2.0) licence by Bitpicture on Flickr