Illustration by Matt Daley

Why the Canadian government needs to hit refresh on its digital strategies

When former Public Safety Minister Vic Toews stood in the House of Commons and proclaimed that anyone who didn’t support the government’s new Lawful Access legislation was standing with the child pornographers, the Internet collectively decided he was being ridiculous. When MP Dean Del Mastro compared ripping a CD to buying socks and then stealing shoes (because, you know, feet), the Internet collectively decided he was being profoundly stupid.

The Internet wasn’t wrong.

And it’s not that Toews is a ridiculous guy or that Del Mastro is actually stupid, but there’s a disconnect between the digital policies they’re advocating and the way people actually use digital technology. Wanting privacy doesn’t mean you support molesting children and converting your music collection doesn’t make you a thief. Obviously.

This isn’t strictly an attack on the current Conservative government. Previous governments didn’t really have to deal with these issues. Consider how far we’ve come since Stephen Harper first came to power in 2006, before the iPhone was a thing or the words “big” and “data” had collided in a sentence. But newness doesn’t excuse the tenuous grasp elected officials like Toews and Del Mastro have on both the technical and cultural aspects of modern technology. Either they aren’t the right people to be working on these policies or, more frightening, it’s a problem that permeates the entire House of Commons—a group whose average age is 53, with only a handful of millennials (the only generation with the opportunity to have internalized so many digital issues) who all belong to the minority opposition.

Whether it’s age or politics, the sitting government has already repeatedly whiffed on digital policy. Most disappointing was when Industry Minister James Moore introduced Digital Canada 150 in April, a strategy document designed to put digital priorities front and centre, but was  panned for lacking any sort of real vision or concrete plans (Michael Geist called it a strategy document lacking much in way of actual strategy). It was a document that took a staggering four years to produce, which means much of the data used pre-dates the iPad and Netflix streaming and a lot of other things we take for granted today.

The shortcomings of Digital Canada 150 became apparent with subsequent legislation. Bill C-13, officially the Protecting Canadians from Online Crime Act, was supposed to be a huge step toward combatting cyberbullying. Unfortunately, it also includes a pile of provisions that have nothing to do with cyberbullying, and has been strongly criticized for allowing investigative overreach without judicial oversight, while stripping away the privacy protections many Canadians assume they have. It’s a wide-reaching bill that was heavily scrutinized by a small group of people who enjoy heavily scrutinizing these things, but was largely sold to the general public as something that would save our kids from the scourge of bullies on the Internet. In short, C-13 has never received the public discussion it deserves and, while not straight out of 1984, does have an Orwellian feel to it.

More curious than sinister was Bill C-23, the much discussed Fair Elections Act. In a world where we can pay bills, buy groceries, and file taxes online, C-23 offers substantial electoral reform without ever broaching the subject of online voting. In fact, the infrastructure needed to make online voting a reality isn’t really on anyone’s roadmap, which is crazy if you really think about it. (This isn’t just a Canadian problem and, oddly, it’s Estonia that leads the way with a comprehensive digital identification program that’s required at every level of government.)

Technology touches everything—justice, privacy, resources, copyright, access to information, entertainment, democracy itself—so robust and complex digital policies are necessary. It’s not just enough that our politicians understand this stuff, which they mostly don’t (if you don’t believe me, you haven’t listened to an MP try to clearly and accurately define “metadata” or “net neutrality”), they need to ensure we understand it, too. Balance on these issues is important: balance between companies and consumers, law enforcement and citizens, government and taxpayers. But keep in mind that half of all of those equations is people—we are the consumers and citizens and taxpayers. And, generally speaking, when an issue isn’t being widely discussed and properly understood, it’s the people that are getting screwed.

Industry Minister Tony Clement’s iPod contains 10,452 songs, he told reporters on May 26, most of them transferred from CDs he bought. It’s a widespread practice generally known as “format shifting,” and in Canada, it’s illegal.

The minister didn’t shamefacedly admit his crime in an embarrassing gaffe; he called a press conference and announced it in order to make a point. Copyright law in Canada has lagged behind social and technological reality for years now, impotently policing an extinct world of mimeographs and cassette tapes while the rest of us got on with things. Ever ripped a CD to your computer or MP3 player like Minister Clement did? Ever taped a TV show to watch later? Had a cellphone unlocked? All are currently illegal in Canada, even as they happen every day. So on June 2, Heritage Minister James Moore introduced the Conservatives’ latest attempt to update Canadian copyright, Bill C-32.

There is some good news. The bill proposes new freedoms for people to make copies of protected material in non-commercial ways: transferring that bought-and-paid-for CD to your iPod would be legalized, as will taping a TV show to watch later. There is a new provision for artists to use copyrighted material in parody and satire. And the bill would legalize the use of protected works in many educational contexts. These new rules will finally bring the law into some sort of alignment with reality.

But there is a glaring problem: all these new freedoms are overridden by the government’s total surrender on the matter of “digital rights management,” restrictive types of software that control our use of the e-books, DVDs, or video games we purchase—what devices we may use, who we may share with, and how many times. No one would stand for a shirt that self-destructed unless worn with a certain brand of jeans, but that is the essence of DRM—the things you purchase never belong to you. Under C-32 as currently written, circumventing any digital lock would be a crime, even if the purpose were legal. With this measure, the bill legitimizes the sinister notion that large corporate interests are entitled to broad, intrusive powers to control how individuals consume culture. That idea is dangerous.

Yes, artists need legal protections to ensure they are compensated for their work. But it is not in the interest of any Canadian—including Canadian artists—to shackle artworks to technology that invades our privacy and criminalizes the normal exchange of ideas that constitutes all culture. It may still be possible to reopen the digital lock provision; a strong and unambiguous public response is the key.

Today’s the day! Heritage Minister James Moore will apparently introduce new legislation to update Canada’s copyright laws this afternoon. Michael Geist, the usual go-to guy for all discussion on this topic, has a quick introduction on his site. Basically, fair dealing will remain pretty strict; Geist has complimentary things to say about how internet intermediaries like ISPs will be treated; and then we get to the mess that is digital locks and DRM:

Third, the bill will include digital lock provisions, known as anti-circumvention rules.  These rules, which will allow Canada to implement international copyright treaties it signed over ten years ago, was the most-discussed issue during the consultation.  Thousands of Canadians argued that Canada should adopt a flexible implementation that renders it illegal to “pick a digital lock” for the purposes of copyright infringement, but preserves the right to do so for legal purposes.

Sources say the government has rejected the flexible approach in favour of the U.S.-style ban on circumvention (subject to a handful of limited exceptions).  If true, the problem with the approach is that it undermines both the new and existing exceptions.  For millions of Canadians, that means that their user rights will be lost whenever a digital lock is present including for CDs, DVDs, electronic books, and many other devices.  In the process, the balance will tilt strongly away from consumers and their property rights over their own purchases.

In other words, any fair dealing privileges that you could have enjoyed previously can be revoked if publishers include some  lame, already-cracked DRM junk in their products.