by David Jones
In the battle over Canada's broadcasting airwaves,
protecting freedom of choice for individual Canadians
is an emerging theme,
despite efforts to the contrary by government and police.
In the battle over Canada's broadcasting airwaves, protecting freedom of choice for individual Canadians is an emerging theme, despite efforts to the contrary by government and police.
Canadian direct-to-home satellite television services are non-existent, despite broadcasting licenses being granted by the Canadian Radio-television and Telecommunications Commission (CRTC) to five companies: PowerDirecTV, ExpressVu, HomeStar, StarChoice, and AlphaStar. Only AlphaStar has started broadcasting, but with only 6,000 customers, its parent company, Tee-Comm Electronics, is now in receivership.
The absence of a viable homegrown service hasn't prevented an estimated 300,000 Canadians from watching satellite TV being broadcast by American companies like DirecTV and EchoStar, who provide `grey market' TV services to Canadians through U.S. postal addresses.
In addition, several Canadian companies, have been providing `black market' TV services by selling `pirate' computer cards that allow viewers to hack into DirecTV signals, without paying any subscription fee -- much to the embarrassment of News Datacom who are responsible for encrypting the signal.
With the apparent aim of protecting Canadian corporate interests, at the expense of the rights of individual citizens to view television programs of their own choosing, Industry Canada has mounted an active misinformation campaign designed to terrorize consumers -- creating a climate of fear and confusion, just long enough for one of the Canadian broadcasters to get their act together.
Acting as little more than hired goons for California-based DirecTV, the Royal Canadian Mounted Police (RCMP) have executed search and seizure warrants at dozens of small businesses across Canada that sell `pirate' computer cards for `black market' TV.
All this changed on May 16th, when Mr. Justice John Klebuc of Saskatchewan Queen's Bench ruled that Canadians can legally watch `grey market' or even `black market' satellite television. Industry Canada's propaganda was wrong and the police searches were "excessive and unreasonable". The police have been ordered to return all seized materials, plus pay legal costs of companies that were victimized, like Kerrobert Satellite & Cellular of Saskatchewan.
Other lower court judges have also tossed these satellite cases out of court, but this is the most authoritative ruling yet.
The key laws under scrutiny in the recent case, and cases like it, were sections 9(1)(c) and 10(1)(b) of the Radiocommunication Act, and section 327 of the Criminal Code. In short, these laws make it an offence to "decode an encrypted subscription programming signal", or to "manufacture, import, distribute, lease, offer for sale, sell, install, modify, operate, or possess" (phew!) any device intended for that purpose, unless the lawful distributor of the signal gets paid.
DirecTV is not a lawful distributor, since it is not licensed by the CRTC to offer satellite service in Canada.
"That was interpreted by Industry Canada as meaning that if there is no Canadian distributor, then there is an absolute prohibition on receiving the signal", says Ian Angus, the lawyer who successfully argued the case before Judge Klebuc.
"But these court cases are turning that around and saying: sure, stealing a signal from a Canadian distributor is an offence, but these laws are not about targeting people who are receiving something from outside of Canada when there is no Canadian alternative", he explains.
"There was a charged atmosphere in the courtroom when the truth came tumbling out", says Angus.
"The police allowed somebody from DirecTV and News Datacom into the search and seizures, who were transmitting evidence from the search site back to the United States, where it was being used as the basis for a civil suit."
"There were all sorts of extraordinary actions", recalls Angus. "The RCMP were abominable. The police closed down businesses, kept all these things which they seized for months on end, didn't lay any charges, and didn't know when, if ever, they would lay any charges!"
"It became clear they were being financially supported by DirecTV and News Datacom", says Angus, referring to testimony presented in a Vancouver case. "They were `cops for hire'."
"I wonder if this investigation is in the public interest of Canada", said Judge W. Craig of B.C. provincial court upon learning of the RCMP's actions, "or whether it's really in the interests of News Datacom and DirecTV".
Wade Randall runs PAS Technologies, based in Burlington, Ontario -- one of several small businesses now legally able to sell `pirate' satellite TV services. He sells an all-inclusive package for $1,200. That's a dish, receiver, decoder -- installed -- and it comes with a specially modified smart-card that enables you to receive DirecTV and USSB channels for free.
With Randall's background in computers, he says that hacking the encoded satellite signal was relatively easy. "The encryption keys are right in the data stream", he says.
The `pirate' card he sells customers contains a "reprogrammed EEPROM" that fools the receiving and decoding circuitry into thinking you're a valid subscriber. Precisely how it is programmed, however, is a trade secret.
That's partly because the `pirate' cards that were the subject of the recent court cases don't work anymore. "The Green cards are toast", says Randall, who explains that once DirecTV got their hands on the source code, they devised a way to disable the cards.
"I use their own technology against them", says Randall. "They can't disable my cards."
DirecTV is in the midst of upgrading their system with newer cards, but "they've already been hacked", says Randall, who offers customers a 3-month guarantee, after which he says he'll charge $25 to update any cards that become outdated.
"Our cards have been working since January", says Randall, who is confident his customers will enjoy free satellite TV for some time to come, since DirecTV has more than 2 million customers in North America, and "it's expensive for them to upgrade their cards".
So where will this recent court decision lead?
"Satellite broadcasting is, like the Internet, a barrier free medium", observes Ian Angus. "The CRTC is going to find itself unable to continue with its present policy of setting out what it is that Canadians may watch and listen to. Under the current regulatory environment, we are only allowed, in their minds, to watch what they approve. That is going to have to change."
"What started as a definition of what these laws are supposed to be regulating or making an offence, is now developing into a more fundamental question of why these things ought not to be considered an offence, and the underlying rationale is freedom of expression protection in the Charter.
Canadian couch potatoes rejoice!