Technology in Government
March, 1999
page 23

Keeping a close eye on Big Brother

Internet regulation, privacy legislation are among EFC's priorities this year

by Kady O'Malley, kde@storm.ca

As president of Electronic Frontier Canada, McMaster University computer science professor David Jones spends his off-hours keeping a close eye on Big Brother. With new privacy legislation, continuing controversy over Ottawa's cryptography policy and the daunting prospect of a possible power play by the CRTC into the Internet regulation arena, he's going to have his hands full keeping track of what's happening on the Hill this year. He took some time to give correspondent Kady O'Malley EFC's watch list for 1999.

TIG: What do you see as the major focus for EFC in the coming year?

JONES: I think one of the big things is the CRTC and the whole issue of Internet regulation. Another thing on the list is the issue of protecting Internet service providers from the actions of customers. In the U.S., ISPs have relief from liability for actions of customers; this is a very good move, and it's something we should have here. Not having it creates an uneven playing field — companies operate in an atmosphere of uncertainty, constantly worrying about these kinds of legal concerns. Now that Internet service is a big industry, in the same way we protect telephone companies from being viewed as responsible when customers make death threats, I think we need to have similar protections for Internet service providers. ISPs want to remove the uncertainty, without worrying about whether the RCMP is going to back up a van to their company, take away their machines, and disconnect 60,000 Canadians from the Internet.

TIG: You mentioned the CRTC hearings on the regulation of the Internet — from what you've seen so far, what are your thoughts?

JONES: The trouble is there is such a diversity of players that are expressing a point of view, and the CRTC's own terms of reference were so broad and ambiguous and unclear, that the discussions haven't been terribly focused. One example is the focus on the phrase 'new media': the CRTC is holding new media hearings, and they don't even define what new media is. They suggest it probably includes the Internet, or some aspects of the Internet, but not necessarily all. Before the hearings, they stressed that they didn't want to define what the new media is, and would like public to help define it, but it's a recipe for confusion to have hearings on something that isn't even defined.

I was also disturbed at the level of willingness to be regulated among the participants in the hearings, as long as they got something in return. Various groups want handouts — tax incentives, development funds, protection — it's "Give me something, and I won't complain too much if you regulate some aspect of the Internet, or new media, or whatever is included." I was distressed at the level some groups were welcoming regulation.

There's another round in February, and we'll be keeping an eye on that. I think it's a wild card. I heard Industry Minister John Manley give a talk just before the OECD meeting in October, where he expressed what is apparently his opposition to CRTC regulation of the Internet. Among our elected officials, John Manley is one of the most astute when it comes to technology and the Internet. He gets it.

TIG: What about the government's new data protection legislation?

JONES: At a high level, it's a good move that we have the beginnings of some privacy legislation that applies to the private sector too. Of course, it's being revised, so there's a bit of give and take. One of our main concerns about the latest version is that investigations or audits would be complaint-driven. We'd like to see something like what we have in the public sector; a commissioner who can do audits without waiting for complaints.

Another big policy area that we're watching is cryptography. Domestically, Canada's policy is fine, you can use whatever level you think is appropriate. The problem is exports. I think Canada's export restrictions are unreasonable, and it hurts the privacy of Canadians and Canadian high tech companies that manufacture and sell software. It also puts financial institutions at risk when conducting international transactions, if they aren't protected from hackers or industrial espionage. I'm frustrated that Foreign Affairs doesn't have clear, specific answers on Canada's policy. I wanted to get an opinion on whether I could export some software I wrote that uses strong encryption. Plus, I'm a computer professor, so I teach students how to write programs using cryptography. If I teach foreign student to write programs utilizing strong cryptography, is that prohibited?

TIG: Are there other privacy-related concerns, apart from e-commerce issues?

JONES: There's a growing concern about e-mail privacy. I've heard, to my surprise, that some lawyers, perhaps those who work with law enforcement, have adopted a narrow definition for "interception." We have a law about intercepting personal communications, but when most people think of interception, they think about wiretaps, eavesdropping on telephone conversations. It's intercepted live, while it's happening — you intercept the signal in transit.

I think it would be equally wrong for someone to intercept e-mail or to see the contents of e-mail while it's between sender and recipient, but some legal mind thinks it's only interception if you interrupt the signal. When it's sitting on someone's hard drive, it's open season. That makes me worry that some law enforcement officials might take the view that, if they can persuade an Internet service provider to disclose someone's e-mail, that may be acceptable as an investigative tool. I'm not saying that should never happen, but we need an impartial judge to make a decision about a court order.

TIG: Are there any other public policy issues you're watching?

JONES: There are a couple, and they both have to do with Canadian Heritage Minister Sheila Copps. First, I think the split run ban legislation should be a non-starter, and I'm surprised that it's gotten this far. The Charter guarantees freedom of expression and association, and if the EFC wants to purchase advertising space in Sports Illustrated, government shouldn't be able to prevent me to do that. It's clearly unconstitutional.

Another thing I'm disappointed with Sheila on is the tariff on recorded audio media. I'm a professor and a researcher, so I use CD-ROMs to store data, and I'm being penalized.

TIG: What do you think about Year 2000?

JONES: What's the prospect of a disaster? It's equally likely there will be something like the Quebec ice storm or the Toronto blizzard. People should prepare thoughtfully — there might be loose services or transportation for a short period of time. Government should communicate to the public the steps that have been taken. Rather than be silent, it would serve the government well to educate people about the steps that have been taken to dispel the more outlandish claims.

Copyright © 1999 by Technology in Government. All Rights Reserved. Reprinted with permission.