After Removing US From Negotiating Process, Now Trump Suddenly Wants US Back In TPP

from the say-what-now? dept

The Trans Pacific Partnership (TPP) Agreement is deeply unpopular with Americans for a variety of reasons (some of which we'll discuss below). Because of its unpopularity, both Donald Trump and Hillary Clinton denounced the agreement during their campaign for the Presidency. Trump's denunciation seemed a lot more genuine -- he's argued against free trade and in favor of protectionism for quite a long time. Clinton's denunciation was highly suspect, as she had long been a supporter of the TPP, and many people expected that, if elected, she'd flip flop back to support the agreement. Of course, she didn't get elected... but now it's apparently, Trump who has flip flopped to now supporting TPP.

President Trump, in a sharp reversal, told a gathering of farm-state lawmakers and governors on Thursday morning that the United States was looking into rejoining a multicountry trade agreement known as the Trans-Pacific Partnership, a deal he pulled out of days after assuming the presidency.

Mr. Trump’s reconsideration of an agreement he once denounced as a “rape of our country” caught even his closest advisers by surprise and came as his administration faces stiff pushback from Republican lawmakers, farmers and other businesses concerned that the president’s threat of tariffs and other trade barriers will hurt them economically.

We spent years explaining the many, many problems associated with TPP. While we tend to be supporters of free trade, the problem with the TPP was that it wasn't actually a free trade agreement. Yes, a few parts of it included lowering tariffs and opening borders to trade (and those parts were, for the most part, pretty good), but the bigger part of the agreement was that it was an "investment" agreement, rather than a trade agreement. And thus it included two parts that were really problematic.

First, was an intellectual property section which was the exact opposite of "free trade." Rather it required higher barriers to trade, creating mercantilist barriers to information and ideas, in locking up "intellectual property" under ever more draconian terms. The second part was what we've referred to as the "corporate sovereignty" section, which is officially referred to as "Investor State Dispute Settlement" provisions or (ISDS). This is a system by which companies can effectively take governments to a private tribunal, who will determine if their regulations cut into the expected profits of the company. The original idea behind such corporate sovereignty provisions was to deal with the situations in which, say, a big company invested in an economically developing country, and that country's leadership suddenly decided to seize the factory or whatever. But, as we've seen, over the years, is that ISDS/corporate sovereignty has mainly been used as a tool for corruption.

Given all of that, we were happy that one of President Trump's first moves in office was to drop out of the TPP, even as we noted that he was clearly doing so for the wrong reasons (his stated reasons being wishing for more protectionism, when it was the lowering of trade barriers that we found to be the only good parts of the TPP).

With the US out of the TPP, the remaining countries picked up the ball and ran with it -- under the leadership of Canada who agreed to remove the intellectual property section. An agreement was reached earlier this year without the awful copyright and patent provisions, but with corporate sovereignty still in there. It's ironic that Canada took over the leadership role, since it was actually a late entrant into the TPP after the US bent over backwards to keep Canada out of the agreement, partly in the belief that it would push back on things like the draconian intellectual property section.

So... given all of that it seems doubly ironic that Trump now apparently says he wants back in. His tweet on the subject is, as per usual, somewhat nonsensical.

Claiming he'd only rejoin the TPP if the deal is better than what Obama negotiated is a reasonable enough claim to make, but if that was the case... why did Trump completely drop out of the negotiations and let the other countries conclude all of the negotiations without any US influence at all? Reopening such negotiations at this point seems like a total non-starter, and even if it happened, the US would be at a distinct disadvantage, given that everyone else has already agreed to nearly everything.

And, of course, there's little to suggest that the attempt to rejoin now is to get rid of things like corporate sovereignty, or to do the actual good stuff around lowering trade barriers (this is coming just weeks after Trump announced plans to put in place tariffs on certain Chinese products) and soon after the dubious claim that winning trade wars is "easy."

As far as I can tell, this appears to be Trump trying to make a group of people he was talking to happy, and not really understanding the details:

As he often does, the president started to change gears after hearing complaints from important constituents — in this case, Republican lawmakers who said farmers and other businesses in their states would suffer from his trade approach since they send many of their products abroad.

That, of course, seems like an odd way to lead. Or to negotiate.

Chances are nothing significant comes of this -- certainly not a wholescale renegotiation of the TPP. Instead, we've just got yet another political mess.

Filed Under: canada, china, copyright, corporate sovereignty, donald trump, free trade, isds, negotiations, patents, tpp, trade agreements

Canadian Music Industry Confirms Once More That For Copyright Companies, Enough Is Never Enough

from the sounding-like-a-broken-record dept

One of the striking features of copyright is how over three centuries, it always seems to become longer, broader and stronger. Just as a matter of probabilities, you might expect copyright to become a little shorter once in a while, but strangely that doesn't appear to happen. One consequence of the copyright ratchet is that the public is often cheated. Copyright is based on a bargain: that a time-limited, government-backed intellectual monopoly will be granted to creators in return for allowing the work to enter the public domain at the end of that limited period. Instead, what has happened repeatedly is that the copyright term has been extended before works enter the public domain, thus denying society its promised payback. If anything deserves to be called "copyright theft", it is this.

The copyright ratchet is on display once more in a new op-ed Michael Geist has written for The Globe and Mail. He reports on some documents obtained under Freedom of Information laws, including a 30-page reform proposal from the Canadian Music Policy Coalition, an umbrella group representing 17 music associations. It's a submission to the Canadian government regarding a copyright review that is currently underway in that country. According to Geist, the document calls for:

radical changes that would spark significant new consumer fees and Internet regulation. The plan features new levies on smartphones and tablets, Internet service provider tracking of subscribers and content blocking, longer copyright terms, and even the industry's ability to cancel commercial agreements with Internet companies if the benefits from the deal become "disproportionate."

You can read the full details of how the Canadian music industry wants to ratchet copyright up a notch or two in Geist's post. With remarkable honesty, the report is entitled "Sounding Like a Broken Record", and the familiar demands to make copyright longer, broader and stronger are indeed tiresomely repetitive and anachronistic. But what makes those one-sided proposals to demand more money from the public, while depriving them of basic rights like privacy and freedom of speech, even more outrageous is the fact that the Canadian music industry is thriving under the current legal framework:

The Canadian music market is growing much faster than the world average, with Canada jumping past Australia last year to become the sixth largest music market in the world. Music collective SOCAN, a coalition member, has seen Internet streaming revenues balloon from [Canadian] $3.4 million in 2013 to a record-setting $49.3 million in 2017.

Moreover, data confirms that music piracy has diminished dramatically in Canada. Music Canada reports that Canada is below global averages for "stream ripping", the process of downloading streamed versions of songs from services such as YouTube. Last month Sandvine reported that file sharing technology BitTorrent is responsible for only 1.6 per cent of Canadian Internet traffic, down from as much as 15 per cent in 2014.

Since shrinking markets and increasing levels of unauthorized downloads are routinely used to justify a strengthening of copyright legislation, it seems only fair that the public should be allowed to argue that copyright law in Canada can be dialed back now that the reverse is taking place. But the music, film and publishing industries and their lobbyists would scream in horrified outrage if such a thing were even whispered. After all, everyone knows that when it comes to copyright, enough is never enough.

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Filed Under: canada, copyright, music industry

Canadian Government Leaning Towards A Right To Be Forgotten It Can Enforce Anywhere In The World

from the I-for-one-welcome-our-new-Canadian-overlords dept

It looks as though the "Right to Be Forgotten" will be crossing the Atlantic and setting up shop just north of the United States. The Canadian Privacy Commissioner has already stated existing Canadian privacy laws allow for this, but there's been no statutory adoption of the Commissioner's theory.

The idea that Canadians should join their European counterparts in being able to selectively erase personal information continues to be pushed by the Privacy Commissioner. Speaking at a recent conference in Toronto, Privacy Commissioner Daniel Therrien reiterated his belief Canadians should be offered this dubious "right."

Therrien said he continues to support the concept of “the right to be forgotten” — which has been adopted in other jurisdictions through the European Union’s General Data Protection Regulation.

“[I]nformation about individuals is much easier to find with the internet, thanks to search engines and other functions. The information that is found will often be taken out of context. It is easily replicable and is very difficult to delete,” said Therrien.

“All to say that information that went to reputation before the internet, that may be information known to a small circle of people, with the internet, is now potentially known to many, many people. Out of context, that information may be inaccurate and, moreover, may create real consequences for people. Reputation matters.”

Reputation does matter. That's the problem with the RTBF. While there are legitimate uses, there are also plenty of people willing to abuse it to obtain an unearned reputation. Fortunately, this abuse is routinely called out by press outlets hit with RTBF requests to delete unfavorable coverage or criticism.

The Privacy Commissioner's pitch continues and the Canadian Parliament seems amenable to the idea. The committee handling privacy, information access, and ethics has issued a report nudging the Canadian government towards the adoption of the Right to Be Forgotten. But its conclusions are somewhat contrary to the Privacy Commissioner's assertions. The committee likes the idea but points out these protections are not built into Canada's existing privacy laws.

The Committee’s first finding in this regard was that when online reputational damage occurs in the context of personal relationships rather than commercial transactions, PIPEDA does not apply (since the latter only applies to the collection, use and disclosure of personal information in a commercial context).   Moreover, the Committee noted that the Criminal Code treats a number of related offences, such as regards the publication of intimate images without consent. Accordingly, the Committee clarified that the scope of their analysis was limited to the protection of privacy and online reputation in the context of commercial transactions.

With this, the committee appears to believe it can amend PIPEDA to include a "right to be forgotten," but one more expansive than the European model. According to this, it would appear to cover things like revenge porn.

As regards the right to erasure, the Committee noted that PIPEDA does not expressly contain such a right, although the principles of “consent”, “limited retention” and “accuracy” may be applied in some instances to give effect to a limited right of erasure in certain circumstances.

For example, according to Principle 4.3.8 of Schedule 1 to PIPEDA, an individual has the right to withdraw consent to the collection, use and disclosure of his/her personal information. If this is then combined with the limited retention principle, pursuant to which an organization may only retain personal information for so long as it is necessary for the fulfilment of the purposes for which it was collected, then (in some circumstances) an individual may successfully argue that, upon withdrawal of their consent, the organisation that holds their information should destroy it.

[...]

In this context, several of the Committee witnesses argued that PIPEDA should be amended to create a more comprehensive right of erasure (to address situations of cyberbullying or revenge porn, for example) that would be similar in scope to the right of erasure found in the GDPR.

It's not that revenge porn and cyberbullying should be ignored. It's more of a question whether amending the law will fix the problem without a lot of collateral damage. Fortunately, some of the committee members have expressed this exact concern, noting the potential PIPEDA amendments would likely adversely affect Canadian freedom of expression.

Unfortunately, there's a larger problem that's not discussed in the report: the recent Equustek decision. In this lawsuit, Canada's top court declared delisting orders issued in Canada were valid worldwide. Google challenged this decision in the US (Equustek did not make an appearance), obtaining a judgment finding the Canadian decision could not be applied extraterritorially. The committee believes the ruling could be read as covering personal information, not just trade secrets (which were central to the Equustek case). It also appears to indicate that any delisting requests can be enforced worldwide, no matter where the recipient of the order resides.

Further, the committee apparently believes the tech companies that will be delisting info aren't properly equipped to evaluate the public's interest in removal/non-removal when handling requests. This suggests the Canadian government may take a more hands-on approach if it decides to create a Right to Be Forgotten. Fortunately, some of the committee comments suggest they fear over-compliance rather than under-compliance, which may mean the Canadian government's involvement may actually include policing requests for abuse of the law.

Even with these cautionary comments, the concern remains that Canada will create its own version of RTBF, but with the added nasty side effect of the nation's highest court declaring orders issued in Canada must be executed by companies located in other countries. The committee's report [PDF] spends no time discussing this unfortunate ruling or its adverse effects if the world's tech companies are subjected to extraterritorial delisting orders. But that's what will happen if PIPEDA is amended: Canada will be giving its citizens the opportunity to engage in worldwide censorship.

Filed Under: canada, right to be forgotten

Subject Of Unflattering News Story Gets Journalist Arrested For Criminal Harassment

from the cops-just-doing-their-job-because-someone-else-was-just-doing-his-job dept

Oh, good. Someone's trying to make journalism as dangerous as security research. A Canadian journalist who did something journalists do all the time is now facing the possibility of criminal charges for doing his job.

A Radio-Canada investigation, with a team including reporter Antoine Trépanier, revealed that the executive director of the Big Brothers Big Sisters chapter in Gatineau, Que., falsely portrayed herself as a lawyer and practised law without a licence.

Yvonne Dubé told Radio-Canada she knew nothing about the case and insisted she never represented anyone as a lawyer.

Trépanier had talked to Dubé over the phone Monday, eventually offering a formal interview request for the story before it was published earlier this week.

After initially accepting the interview, she declined it at the last moment. She instead spoke by phone.

The next day, ​Trépanier sent an email reiterating the offer for an interview.

Subsequently, Dubé contacted Gatineau police and made a complaint of criminal harassment against Trépanier.

Trépanier was arrested Tuesday evening and he signed a promise to appear in court.

Another chilling sentence follows.

The Crown has not yet decided if charges will proceed.

It seems like there should be nothing to decide. Obviously Dubé had zero interest in commenting on a story about her alleged impersonation of a licensed lawyer. Fine, but this scenario absolutely reeks of vindictive bullshit from a person who couldn't stop a negative story from being posted and felt she should spread the misery around.

Needless to say, Trépanier's employer, Radio-Canada, is deeply concerned with this turn of events. The director of its French services says he's never seen anything like this in three decades of journalism. The police likely haven't either, but they're sticking to their guns.

Gatineau police held a media briefing early Friday afternoon, where the force's director, Mario Harel, said "we have the obligation to listen to the victims ... regardless if [the accused] is a journalist, a politician, a star or an ordinary citizen."

All well and good, but requests for interviews or comments are not anywhere in the neighborhood of "threats" that should make someone "fear for their safety." It's just part of the business. Sure, it's often an unpleasant part for those who'd rather not comment on articles uncovering their misconduct, but it's not even close to criminal harassment.

If a journalist wants comments and a person doesn't feel like giving them, "no comment" is a great way to terminate these communications. A phone call and an email are pretty mild compared to hordes of journalists camping out on your street or chasing you around from place to place with a microphone in their hands. I can see how some journalists might cross the line into harassment on occasion, but the underlying facts don't suggest Trépanier did anything other than repeat his request once, using another form of communication.

Even if charges are dropped, light bulbs are going off over heads of subjects of unflattering new stories. Why not subject your perceived tormentor to a little ride and possible rap? That an arrest was the immediate result of this complaint is enough to make journalists have second thoughts about contacting story subjects for comments or interviews. When subjects start complaining they weren't contacted before publication, they have Yvonne Dubé to thank for the new normal.

Filed Under: antoine trepanier, arrested, canada, harassment, interview request, journalism, yvonne dube

TPP Is Back, Minus Copyright Provisions And Pharma Patent Extensions, In A Clear Snub To Trump And The US

from the canada,-leader-of-the-free-world? dept

As Techdirt noted back in November, the Trans Pacific Partnership (TPP) agreement was not killed by Donald Trump's decision to pull the US out of the deal. Instead, something rather interesting happened: one of the TPP's worst chapters, dealing with copyright, was "suspended" at the insistence of the Canadian government, which suddenly took on a leading role. At the time, it wasn't clear whether this was merely a temporary ploy, or was permanent. With news that the clumsily-named "Comprehensive and Progressive Agreement for Trans-Pacific Partnership" (CPTPP) has been "concluded", it now seems that the exclusion of both copyright and pharma patent extensions is confirmed. As Michael Geist writes:

the IP chapter largely reflected U.S. demands and with its exit from the TPP, an overhaul that more closely aligns the agreement to international standards was needed. Canada succeeded on that front with an agreement to suspend most of the controversial IP provisions including those involving copyright term, patent extension, biologics protection, and digital lock rules.

That's the good news. But there's still plenty of bad stuff in the CPTPP, a sample of which is listed here by The Atlantic:

A controversial arrangement whereby companies can sue countries over their domestic laws, known as the investor-state dispute settlement [ISDS -- corporate sovereignty] system, remains in a reduced fashion. Labor and environmental protections are largely unchanged [and unsatisfactory]. The EFF's [Jeremy] Malcolm pointed to e-commerce provisions that provide only weak privacy protections, among other issues, as still being problematic. But overall, the new deal is so similar to the original that Canadian labor unions are furious that their government is still advancing it, just as labor groups in the U.S. objected under Obama.

That anger means that even in the absence of the copyright and pharma patent extensions, there is still likely to be some resistance to the new deal, and not just in Canada. For example, economists estimate that the CPTPP will boost Australia's economy by only 0.04% per year -- a negligible amount that will be swamped by fluctuations in other factors. Some Australian businesses warn that the continuing existence of bilateral trade deals with eight of the CPTPP countries will lead to a complex "noodle bowl" of rules and regulations that could make it harder, not easier, to conduct business with them. In New Zealand, a long-standing critic of TPP, Professor Jane Kelsey, is particularly worried about a chapter on electronic commerce. And in Malaysia, a consumer group has urged the government there not to sign the deal, which it said would be "even worse" than TPP for the country.

Although we still don't have the final details of the deal, and the lingering presence of corporate sovereignty is regrettable, the CPTPP signals a hopeful shift away from the usual intellectual monopoly maximalism. The omission of copyright and patents from the new deal is a significant defeat for the US, which has been the main driving force behind their routine inclusion. And the fact that the CPTPP is going ahead at all without the US is a clear snub to Trump and his rejection of such multilateral trade negotiations.

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Filed Under: canada, corporate sovereignty, cptpp, donald trump, isds, tpp, trade deals, trade negotiations, us

Canadian Government Looking To Step Up Domestic Surveillance, Scale Back Intelligence Oversight

from the if-you-like-your-surveillance-state,-you-can-keep-it dept

Canada has its own PATRIOT Act -- one that was supposed to be fixed by its new heartthrob PM, Justin Trudeau. As Cory Doctorow points out at Boing Boing, Trudeau promised to fix it in post, but that's not what's happening.

Back in 2015, Canada's failing, doomed Conservative government introduced Bill C-51, a far-reaching mass surveillance bill that read like PATRIOT Act fanfic; Justin Trudeau, leader of what was then a minority opposition party, whipped his MPs to vote for it, allowing it to pass, and cynically admitting that he was only turning this into law because he didn't want to give the Conservatives a rhetorical stick to beat him with in the next election -- he promised that once he was Prime Minister, he'd fix it.

Now the Trudeau government has introduced Bill C-59, which is meant to correct those deficits. Instead, it makes them far, far worse.

Security research group Citizen Lab have done the heavy lifting Trudeau seems uninterested in doing. A comprehensive report [PDF] detailing everything wrong with the bill (along with 54[!] recommendations for fixes) has been published by the group. In it, Citizen Lab notes C-59 expands domestic surveillance, lowers standards for surveillance deployment, and trims back government oversight.

Dozens of problems have been found in the draft bill by Citizen Lab. The bill Trudeau was supposed to fix is instead morphing into a surveillance state blank check. The Lab finds a whole lot that's unlikable in the legislation.

Longstanding problems with the CSE’s foreign intelligence operations, which are predicated on ambiguous and secretive legal interpretations that legitimize bulk collection and mass surveillance activities.

The complete lack of meaningful oversight and control of the CSE’s activities under the proposed active and defensive cyber operations aspects of its mandate.

The absence of meaningful safeguards or restrictions on the CSE’s active and defensive cyber operations activities, which have the potential to seriously threaten secure communications tools, public safety, and global security.

The absence of meaningful safeguards or restrictions on the CSE’s activities more generally. As drafted, the CSE Act appears to include a loophole which would allow the Establishment to cause death or bodily harm, and to interfere with the “course of justice or democracy,” if acting under its foreign intelligence or cybersecurity powers while prohibiting these outcomes under its new cyber operation powers.

Concerns regarding the framework for the CSE’s acquisition of malware, spyware and hacking tools, which may legitimize a market predicated on undermining and subverting, rather than strengthening, the security of the global information infrastructure.

Weak and vague protections for the privacy of Canadians and persons in Canada, alongside an abject disregard for privacy rights as an international human rights norm.

Extraordinary exceptions to the CSE’s general rule against “directing” activities at Canadians and persons in Canada significantly expand the CSE’s ability to use its expansive powers domestically.

Deep tensions at the core of the CSE mandate, which requires the Establishment to both protect and defend against security threats while simultaneously exploiting, maintaining, and creating new vulnerabilities in order to further its foreign intelligence agenda. These tensions are exacerbated by the introduction of new offensive powers and the two new aspects of its mandate.

So, how do you fix it? Well, 54 recommendations are laid out by Citizen Lab, approximately 54 of which supporters of the bill will find unfeasible. The recommendations would put all the stuff back in legislators left out in their desire to expand government power under the cover of national security. More oversight. Fewer powers. Refined definitions. More public reporting. These are all enhancements Canada's intelligence agencies are unlikely to find beneficial.

With a great deal of editing, C-59 could become a streamlined, responsible answer to the national security question. Instead, it's hardly better than the atrocity it's replacing, despite Trudeau's pre-campaign promises.

Filed Under: canada, justin trudeau, patriot act, surveillance

Canadian Supreme Court Says Privacy Protections Apply To Sent Text Messages Obtained From The Recipient

from the fresh-take-on-stale-privacy-laws dept

In the US, the Fourth Amendment protects the privacy of conversations… up to a point. The government can't open mail or intercept phone calls without a warrant. Thanks to a fairly recent Supreme Court decision, the government can't access the contents of a person's phone -- home to a great many conversations -- without a warrant.

But the Fourth Amendment only covers so much. It doesn't stop the recipient of communications from revealing them to anyone else, the government included. Any person can hand over communications to the government voluntarily even if the sender of those messages assumed -- or stated -- they were supposed to be confidential. This is part of the reason why the "going dark" problem has been overstated. The government has multiple ways to access communications without having to crack open a cell phone.

Communications are only as private as all participants feel they are. That's the way the Fourth Amendment has been read in the US. In Canada, there's an equivalent protection under Section 8 of the Canadian Charter of Rights and Freedoms. Contents of communications require warrants to access and the searches themselves must be "reasonably" supported by probable cause.

Canada's highest court has found, in contrast to US judicial views, an expectation of privacy can still be found in messages sent to someone else -- even if those messages are retrieved from the recipient.

In a potentially significant 5-2 ruling*, the high court set aside the convictions against Nour Marakah, whose messages were found by Toronto police on the mobile phone of an alleged accomplice.

The court said Marakah had a reasonable expectation of privacy concerning the messages, meaning he had a right to challenge the police search of the phone as a violation of his guarantees under the Charter of Rights and Freedoms.

In her reasons for the majority, Chief Justice Beverley McLachlin noted that Marakah was the author of the text messages introduced as evidence against him, that he expected the electronic conversation to remain private and that he asked recipient Andrew Winchester numerous times to delete the messages.

*[Note: Ruling not provided by the Globe and Mail for whatever reason. -1 to G&M's JOURNALISM skill.]

There's no bright line being drawn, despite initial appearances, but it will make it much easier for defendants to challenge evidence obtained without a warrant from the recipient of messages. The court [PDF] has this to say about the bar defendants must reach to basically challenge warrantless searches performed on someone else.

Text messages that have been sent and received can, in some cases, attract a reasonable expectation of privacy and therefore can be protected against unreasonable search or seizure under s. 8 of the Charter. Whether a claimant had a reasonable expectation of privacy must be assessed in the totality of the circumstances. To claim s. 8 protection, claimants must establish that they had a direct interest in the subject matter of the search, that they had a subjective expectation of privacy in that subject matter and that their subjective expectation of privacy was objectively reasonable. Only if a claimant’s subjective expectation of privacy was objectively reasonable will the claimant have standing to argue that the search was unreasonable.

The court says there's perhaps nothing so inherently private as a text message -- a conversation that can't be overheard by anyone in close proximity nor even observed with any certainty by those in the immediate vicinity.

The millions of us who text friends, family and acquaintances may each be viewed as having appropriated a corner of this electronic space for our own purposes. There, we seclude ourselves and convey our private messages, just as we might use a room in a home or an office to talk behind closed doors.

Because texting is an inherently private act, the court finds privacy cannot be dispelled simply by approaching other participants in a private conversation.

An individual does not lose control over information for the purposes of s. 8 of the Charter simply because another individual possesses it or can access it. Nor does the risk that a recipient could disclose an electronic conversation negate a reasonable expectation of privacy in an electronic conversation.

The government obviously did not expect the Supreme Court to reach this conclusion. It made a significant concession which has come back to haunt it.

The Crown concedes that if M had standing the search was unreasonable. The text messages are thus presumptively inadmissible against him, subject to s. 24(2) of the Charter.

That concession, along with actions the police took to access the messages, sees the Supreme Court tossing the obtained evidence along with the conviction.

In considering whether this evidence should be excluded under s. 24(2), society’s interest in the adjudication of M’s case on its merits is significant. The text messages offer highly reliable and probative evidence in the prosecution of a serious offence and their exclusion would result in the absence of evidence by which M could be convicted. This favours admission. However, the police conduct in accessing and searching the electronic conversation through W’s iPhone without a warrant two hours after his arrest was sufficiently serious to favour the exclusion of the evidence. This breached s. 8 of the Charter not only because of the extent of the search, but also because of its timing. On the application judge’s findings, this simply was not a search incident to arrest. In addition, the police conduct had a substantial impact on M’s Charter-protected privacy interest in the electronic conversation. On balance, the admission of the evidence would bring the administration of justice into disrepute. It must therefore be excluded under s. 24(2).

With this unusual ruling, things will get more difficult or more streamlined for law enforcement access to communications, depending on how you view it. It will be more difficult because cops won't be able to perform warrantless searches of devices owned by text message recipients. But it will make law enforcement's job easier in a way. When targeting communications, warrants will be needed if the government wants to guarantee its evidence survives a challenge.

This ruling puts text messaging roughly on the same judicial grounding as wiretaps. In both cases, law enforcement is able to access communications between people, even if only one person is actually the investigation's target. The same thing happens here: if cops want complete conversations, albeit ones delivered through messaging services, they'll need warrants to access them from either end.

Things are shifting dramatically in the upper reaches of judicial systems as a response to a sea change in preferred communication methods. Wiretaps on landlines used to be the ultimate invasion of privacy, subject to multiple restrictions. Just because these communications have shifted from landlines to text messaging shouldn't mean they're afforded less privacy just because of the route they've taken.

Filed Under: canada, expectation of privacy, privacy, supreme court, text messages, third party doctrine

Canadian ISPs And Hollywood Agree On Plan To Make Themselves Judge, Jury and Website Executioner

from the who-needs-government? dept

If you take a quick look through the long history of posts we've done on the subject of site-blocking as a method for combating piracy, you'll notice that we've been fairly critical of the courts in various countries, which are issuing the blocking orders commonly. Here in America, the story is essentially the same, with only minor differences in the laws or lack of laws between each country causing barely different legal justifications for the censorship of sites that one entertainment group or another says is infringing. Too often, the courts appear to take plaintiff claims of infringement as gospel, where in some countries there is even a governmental framework that seems perfectly designed to abuse this process and have compliant courts exert as much collateral damage as possible. Our point all along is that there needs to be a refining of this process to keep the censorship out of the results and ensure that no speech that ought to be protected is caught up in the mix.

It should go without saying that the new plan being concocted by Canadian ISPs and various entertainment groups is not what we had in mind.

A coalition of movie industry companies and ISPs, including Bell, Rogers, and Cineplex are discussing a proposal to implement such measures. The Canadian blocklist would be maintained by a new non-profit organization called “Internet Piracy Review Agency” (IPRA) and enforced through the CTRC, Canadaland reports.

The new proposal is being discussed by various stakeholders including ISPs and local movie companies. As in other countries, major American movie companies are also in the loop, but they will not be listed as official applicants when the plan is submitted to the CRTC.

If something appears to be missing in all of that, it's probably because the plan doesn't make any room for anything resembling judicial oversight or the court system. Rather, this would all be implemented without any court orders or even filings from any actual copyright holder. Instead, rightsholders would inform ISPs that a site is "blatantly, overwhelmingly or structurally" built purely to engage in copyright infringement, and the ISPs would take it down. I'm sure the idea is to keep this to the most egregious of sites that are often quite bare of legitimate and protected speech, except we already know just how shitty ISPs are at being copyright cops, so it seems clear that they'll be relying almost exclusively on the word of rightsholders to implement these site-blocks.

Critics, including Michael Geist, are not pleased.

“Recent history suggests that the list will quickly grow to cover tougher judgment calls. For example, Bell has targeted TVAddons, a site that contains considerable non-infringing content,” Geist notes.

“It can be expected that many other sites disliked by rights holders or broadcasters would find their way onto the block list,” he adds.

Fortunately, all of this would have to go before the Canadian government before going into operations, and the CRTC doesn't seem to be all that enthused.

Thus far, the Government appears to be reluctant in its response. In comments to Canadaland spokesperson Karl Sasseville stressed that Canada maintains committed to an open Internet.

“Our government supports an open internet where Canadians have the ability to access the content of their choice in accordance to Canadian laws,” Sasseville says. “While other parts of the world are focused on building walls, we’re focused on opening doors‎.”

The timing of this is also quite poor, given the unfortunate conversation about net neutrality that is occurring with Canada's sub-friendly neighbors to its south. See, site-blocking has never been fully conflated with net neutrality thus far, in large part because the courts have been an admittedly imperfect check on telecom industry power abuse. But in this plan there is no court to provide that check, only a loose government agency oversight twice separated from the ISPs actions by a newly crafted non-profit.

Meanwhile, of course, the very attempt to skirt any representatives of the democratic government and its court system is about as against the public interest as it gets, as Geist points out.

“The government rightly seems dismissive of the proposal in the Canadaland report but as leading Internet providers, Bell and Rogers should be ashamed for leading the charge on such a dangerous, anti-speech and anti-consumer proposal,” Geist concludes.

Here, here.

Filed Under: canada, copyright, due process, site blocking

With The US Out, Canada Gets Copyright Out Of TPP And Moves Closer To Agreement

from the but-we-thought-it-couldn't-be-done... dept

We've been talking about the Trans Pacific Partnership (TPP) agreement for many, many years. And one point that we've made over and over again about the TPP and other trade agreements, is that there actually is a lot of good and important stuff in those agreements, and we don't understand why the US (mainly) keeps insisting on two issues that don't belong in these agreements at all: (1) "intellectual property" chapters, which are almost always the opposite of "free trade" in that they focus on ratcheting up government protectionism and monopolies for a few specific industries and (2) a section on what we refer to as corporate sovereignty, which which the trade world calls "investor state dispute settlement" or "ISDS." That's where companies can demand an private tribunal judge if a country unfairly treated that company poorly and order the country to pay the company millions or sometimes billions of dollars.

Of course, the US has been a major driver of both of those provisions -- but over and over again we were told that these kinds of agreements were "impossible" without an intellectual property chapter and corporate sovereignty. Turns out, once you get the US out of the way, things aren't so impossible. Just a couple weeks ago, we noted that many countries around the world (including the new USTR, Robert Lighthizer) appear to be souring on corporate sovereignty provisions, but the really big news is the TPP.

Right after Donald Trump became President, the US officially dropped out of the TPP negotiations, leading many to believe that the entire process was dead. Instead, the other countries have continued to negotiate, and on Friday agreed in principle on key aspects of a deal, for the newly renamed Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)

One of the stumbling blocks, on which Canada allegedly played hardball, was removing much of the intellectual property chapter (including basically all of the really bad stuff). As Michael Geist notes:

The Liberal government demonstrated genuine leadership in demanding significant changes to the flawed TPP intellectual property chapter and refusing to back down under intense pressure from some of the negotiating parties. The result isn’t perfect, but the newly named Comprehensive and Progressive Agreement for the Trans Pacific Partnership (CPTPP), which still requires considerable negotiation, features a significantly improved IP chapter that suspends some of the most problematic provisions.

Weeks after the release of the TPP text in 2015, I wrote a lengthy series on the Trouble with the TPP.  Many of the most problematic provisions, including copyright term extension, digital lock rules, and intermediary liability have been suspended from the CPTPP at the insistence of the Canadian delegation. Their removal is a remarkable victory for those that argued against overbroad, restrictive copyright provisions in the TPP and maintained that there was no reason to include unbalanced copyright provisins in a modern trade agreement.

The new version also appears to remove some of the corporate sovereignty/ISDS provisions.

There's still a lot of work to be done on the agreement, but it certainly appears that Canada has taken the lead with the US out of commission. This is particularly amusing, as Canada was a late entrant into the TPP negotiations, and part of that involved the US demanding that Canada accept the text as it was and not reopen negotiations on key points already agreed upon. And now, the end result is that the US has withdrawn and Canada led the way in ditching some of the key provisions the US had demanded.

And, again, the current deal still has some serious problems. For one, it notes that it's possible that the worrisome intellectual property provisions could re-emerge, zombie-like, at a later date. It also notes that there's still enough of the corporate sovereignty provision to be worried about (and same with telecommunications services provisions). But, on the whole, it appears that the new CPTPP is moving in a much, much better direction, in large part by dumping the intellectual property elements.

Meanwhile, later this week, NAFTA renegotiations will be taking place and intellectual property issues are on the agenda. Perhaps Canada can do the same thing it did with the TPP and convince everyone else to take that issue off the table entirely.

Filed Under: canada, copyright, corporate sovereignty, cptpp, ip chapter, isds, patents, tpp