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CRTC

The CRTC is currently in the late stages of its review of basic telecom services, intended to “examine which telecommunications services Canadians require to participate meaningfully in the digital economy and the Commission’s role in ensuring the availability of affordable basic telecommunications services to all Canadians“. This review has been proceeding through written submissions for the past year, but is currently wrapping up the public hearings phase. You can watch these on CPAC through the video archives, or read transcripts of the presentations and the back-and-forth with the Commissioners.

What is all of this about?

Given the scope of the review, this is not an easy question to answer.  First of all, it has become blindingly obvious that some level of internet access is required to “participate meaningfully” in society. This “self-evident truth” was expressed by CRTC Chairman Blais early on in the hearings. The question of whether broadband is a “want” or a “need” has shifted to more detailed  questions around what sorts of minimum speeds (or other performance indicators) are needed, or what kinds of networks Canadians require. Should obligations to provide a certain level of connectivity be imposed on some intermediaries, or can we make do with “aspirational targets”? If obligations are imposed, who should be obliged, where, and to what standard? How much will it cost, and who should pay for it?

There’s been a lot of talk during the hearings about reaching those populations who face persistent challenges, including rural pockets that have been bypassed by the spread of connectivity. Connectivity for low-income populations has also been discussed repeatedly, since the digital divide carves through urban areas as well as the countryside. Surprisingly, digital literacy keeps coming up in questions from the Commissioners, an area that has rarely been a focus for providers, or covered by their support for MediaSmarts. All of this is interesting because the long-standing criticism of the digital divide concept was that it was overly concerned with the technical provision of access, and failed to consider the social obstacles, such as skills (digital literacy) and ability (including cost). Well, the CRTC is certainly thinking about these things, but actually regulating in these areas would be  something new for the Commission.

Perhaps the most remarkable thing about the hearings has been the diversity of the participants. Speakers have included major and minor connectivity providers, as well other stakeholders. Since the ultimate stake is connectivity for the nation,  the entirety of Canadian society is effectively a stakeholder, and written submissions have come from far and wide. The CRTC has agreed to hear presentations from advocacy groups, consumers, campaigners, policy wonks, not-for-profits, and populations at the thin edges of our networks. Some of these participants have appealed for very broad government interventions, and been pressed by Commissioners’ to comment on specific broadband targets or implementation strategies that the CRTC might actually have a role in.

Given my Alberta roots, it was especially interesting to see Axia’s Art Price present his regulatory vision, which understandably coincides with the business model the company is already pursuing in Alberta. Alberta’s SuperNet was held up as a model for the sort of “community interconnect grid” that could be pursued elsewhere. During the question-and-answer, Price noted the provincial government’s current lack of attention to issue, and sidestepped the question of what happens when a backbone is built but no one steps up for the last mile. Cybera’s presentation earlier today led to a more mixed view of SuperNet through the questioning of Commissioner Vennard, who has some experience with the history of this project.

It’s also been good to get a chance to hear from some of the hundreds of intermediaries scattered across the country, including ILECs, SILECs, IISPs, WISPs, cablecos, satellitecos, non-profits, regional networks, and co-operatives. I’ve tried to get a good sense of the diversity of these institutions through my research, but there’s still plenty of smaller ones out there that I’m obviously not aware of (like Chebucto Community Net). The incumbents and their facilities may be key to anything that results from this proceeding (because that is where new targets and obligations really matter), but it’s important not to overlook these more local institutions that have their own particular perspectives.

One remarkable part of the hearings was CRTC Chariman Blais’s address on April 18, in which he stated that the review might be the “last best chance to get it right – a chance to create, together, a coherent national broadband strategy“, and that the CRTC would be “taking some leadership on defining the strategy“. This is the sort of leadership that has long been lacking from the federal government, and indicates a role for the CRTC beyond simply tweaking existing rates, incentives, and obligations.

So where will all of this lead?

The range of actions the CRTC could decide to take (after the Commissioners have time to digest the whole process) is nearly as broad as the scope of the review. There has been some discussion online about what authority the CRTC could use to impose obligations for new networks, but various models for a way forward have been proposed by participants in the process, and any decision by the CRTC can generate years of dispute about its basis in regulatory law. The CRTC could also do nothing at all, and may feel like it has little ability to address these problems. After all, the Commission can’t fund the infrastructure itself, or ask the federal government to do so. The CRTC gets to set the rules under which intermediaries operate, through obligations and incentives, and it has never been the role of the Chairman to develop a “digital strategy” for the nation.

While we probably won’t end up with a government-funded open-access national fibre backbone, a new crown corporation, or obligations for incumbents to extend fibre across Canada’s north, it does seem that the CRTC will at least do something that looks significant. Given the comments of the Chair, and the Commissioners’ demonstrated understanding and recognition of connectivity problems, continuing with the status quo doesn’t seem to be an option. There will have to be a move that promises to address at least some of the remaining technical (territorial) gaps in connectivity.  However, any action that’s truly ambitious here will mean the CRTC carving out a new role for itself. I think that without Cabinet support, a new national strategy or a new leadership role for the CRTC just doesn’t seem that likely.

Telecom Responsibilization: Internet Governance, Surveillance, and New Roles for Intermediaries

I’ve just had my most recent article published in the Canadian Journal of Communication. From the abstract:

This article foregrounds internet intermediaries as a class of actors central to many governance and surveillance strategies, and provides an overview of their emerging roles and responsibilities. While the growth of the internet has created challenges for state actors, state priorities have been unfolded onto the private institutions that provide many of the internet’s services. This article elaborates responsibilization strategies implicating internet intermediaries, and the goals that these actors can be aligned toward. These include enrolling telecom service providers in law enforcement and national security-oriented surveillance programs, as well as strategies to responsibilize service providers as copyright enforcers. But state interests are also responsive to pressures from civil society, so that “internet values” are increasingly channelled through the formal political processes shaping internet governance.

This particular work took more time and revision than anything else I’ve had appear in print. I began working on it prior to my PhD research (and before Snowden), germinating in a conversation I had with my supervisor. I was trying to explain some of my interests in how intermediaries end up serving state surveillance and security objectives, and how “deputization” didn’t seem to be an adequate way of describing the process. He proposed I look at the notion of “responsibilization”, even if what I was describing ran counter to some of the neoliberal logic often associated with the concept.

In the end, the article became a way for me to engage and disengage with different theoretical commitments, while working through some particular cases of intermediary obligations that I was interested in (graduated response, lawful access, interconnection). I’m using the piece as a way to talk about something that many people have pointed out: the importance of intermediaries in contemporary power relations. However, my focus is not just on the power that these companies have over our lives, but the potential for intermediaries to become instruments of power. This leads numerous actors (state and non-state), with particular visions of how to shape or order society, to treat intermediaries as “points of control” (Zittrain, 2003).

The idea of responsibilization is a useful way to understand certain relationships between state and private actors, but it is a concept that deserves some elaboration and careful qualification. Responsibilization has frequently been presented as an aspect of neoliberal governance, corresponding with an emphasis on individual responsibility for one’s conduct and well-being, and the increased involvement of private actors in domains that were previously a responsibility of the state (Burchell, 1996, p. 29). Under this definition, the state’s enlistment, partnering with, or outright deputizing of intermediaries can be seen as a way to devolve state responsibilities and regulatory powers onto private actors. Yet there is nothing particularly new about telecom providers being aligned toward state goals, or accepting obligations towards some sort of public good (security, surveillance, universal service). Also, rather than a shrinking neoliberal state transferring responsibilities to the private sector, responsibilization can actually represent an extension of state power — reaching deeper into civil society by enlisting key network nodes.

Responsibilization and Social Theory

If we understand responsibilization as a technique of government that can be independent of neoliberalism, we can think about how it might be compatible with more generalizable social theories. Originally, I was interested in exploring how the responsibilization of intermediaries could be treated as a combination of Castells’s “programming power” and “switching power”. Abandoning Castells, I then moved further in the direction of governmentality literature and the work of Mitchell Dean. Dean’s work became invaluable as I was thinking through the role of state power and its relationship to all that we now sometimes refer to as civil society. In particular, I was strongly influenced by Dean‘s analysis of what he calls “liberal police”, which operates (in part) through an “unfolding” of governmental programs into civil society.

In regards to surveillance studies, responsibilization seems quite compatible with Haggerty and Ericson’s (2000) well-known idea of “the surveillant assemblage”, referring to the “disconnected and semi-coordinated character of [contemporary] surveillance” that allows actors to “combine and coordinate different monitoring systems that have diverse capabilities and purposes” (Haggerty and Ericson, 2006, p. 4). Responsibilization describes one important means by which the surveillant assemblage can become coordinated, and while Haggerty and Ericson tend to emphasize the decentralized and diffuse character of contemporary surveillance, they also recognize that “powerful institutions” can remain “relatively hegemonic” to the extent that they can “harness the surveillance efforts of otherwise disparate technologies and organizations” (Haggerty and Ericson, 2006, p. 5). The state remains in a privileged position to coordinate various aspects of the surveillant assemblage, whether through the force of law or less coercive means (such as moral suasion and appeals to patriotic duty).

Where else might the idea of responsibilization bear fruit? The distinctions I make about different types of responsibilization in the published article may certainly be applicable beyond telecom, and I think we can find plenty of examples of responsibilization operating as a technique of governance if we detach the concept from certain presumptions about neoliberalism.

In summary…

Our daily experiences are increasingly being governed through intermediaries, often in ways that we don’t appreciate. Proposed solutions to social problems, threats, immorality, and disorder now often argue for better governance of intermediaries. Battles over the shape of digital society often come in the form of battles over the responsibilities we should impose on intermediaries, or debates about the responsibilities that intermediaries should willingly accept.

 

Still sorting out the post-Snowden balance

The ongoing fight between Apple and the FBI, in which a growing number of companies have declared their own interest and support, is the latest constitutive moment for what it means to live in the “post-Snowden” era. This is because the fight is a direct consequence of changes made by Apple following the Snowden disclosures, and because it is now being used as a way to stabilize some sort of “balance” between government and industry, after the massive shake-up of this relationship in late 2013/early 2014. The shift that occurred included major tech companies treating their own government as an adversary to defend against. Now, Apple has reportedly decided that its own engineers must also be part of this threat model. After Snowden, the company decided that it no longer wanted to be able to unlock phones for the government. Now, the challenge is to develop security that the company cannot even help the government break through some indirect means.

The term “post-Snowden” has gotten a lot of use in the last couple of years, but the Apple-FBI battle demonstrates the real shift to which it refers. Perhaps in a few years, the impact of the Snowden disclosures will be forgotten, in much the same way as the crypto war of the 1990s faded from memory as the relationship between industry and government got cosy after 9/11. But the world did change in a variety of substantial ways as a consequence of Edward Snowden’s actions, and we are still grappling with the legacy of those changes.

The Snowden disclosures were a truly international story with many local manifestations. Just as NSA-affiliated surveillance infrastructure had been extended around the globe, scandal touched the various nations implicated in the documents, and opened the door to local investigations. News stories broke one after another, with governments as either targets or practitioners of surveillance. Canada, as a member of the exclusive “Five Eyes” surveillance club, was reminded that it too had an agency with a mandate similar to the NSA (CSEC, now CSE). More clearly than ever, citizens understood that the surveillance infrastructures of intelligence agencies had global reach. Canada hasn’t seen public battles between government and industry like the one currently involving Apple, and discussions of government surveillance have been more muted than in the US, but a series of Snowden-related stories in this country have also fed into long-standing concerns about surveillance and privacy.

I want to spend more time on how the Snowden disclosures impacted Canada in a later post, but for now I’ll just briefly reflect on my own experiences studying the telecom industry during this period.

I began attending meetings of network operators and engineers in 2012. The first of Snowden’s revelations hit in June 2013, and by the fall of 2013, the topic of state surveillance was a regular part of conference conversations and presentations, if not the actual topic of presentations themselves. At the October 2013 NANOG conference, the internet’s North American engineers cheered the resistance of Snowden’s email provider to disclosure demands by the US government (Ladar Levison had built what was meant to be a secure email provider, but the FBI ordered him to hand over the encryption keys. Attendees applauded his efforts to make the FBI’s job as difficult as possible). At the IETF in Vancouver the following month, participants overwhelmingly voted to treat pervasive surveillance by state intelligence agencies as a technical attack on the internet, and debated how to protect against it. At a Canadian industry conference in April 2014, an executive with an incumbent ISP argued that service providers had an opportunity to gain a competitive advantage by offering better security, and showed a photo of Snowden as an answer to the question of why we care about privacy and security. Interestingly, Canadian government agencies reportedly joined Canadian companies in touting the country’s privacy and security advantages to customers concerned by surveillance in the US.

After Snowden, corporate management and operational decisions took time to shift, but the change in discussions and governance forums was more immediate. It wasn’t just that private intermediaries suddenly had a new threat to worry about, but that the nature of their role, and their relationship to their users/customers had changed. Snowden’s revelations included the fact that the NSA had been undermining the very internet infrastructure that the agency had been tasked with protecting, but also the suggestion that it had done so with intermediaries acting as private partners. Best exemplified by early reports of the PRISM program, some intermediaries were now seen as complicit in this global spying apparatus. As a consequence, companies began limiting cooperation with government agencies and issuing transparency reports about the nature and extent of their information disclosures.

The Snowden disclosures contributed to cynicism and distrust of both government and private industry, and trust is key for companies that have built a business model around securing personal information. Companies such as Apple are positioning themselves as trusted stewards of personal information, with the recognition that customers often do not trust government assurances that they will only access such data in limited and justified circumstances. The most recent moves by Apple are an attempt to move data even further out of the reach of these providers themselves. Such an approach will not be possible for companies that depend on access to this data as part of their business model (for advertising purposes), but for those selling hardware and online services, building walls against governments is now often more desirable than negotiating access.

From one perspective, the Apple-FBI fight is about setting a precedent for government power in the post-Snowden era. But I would say that it is an indicator of a loss of government power, a shift in the orientation of the US tech industry to the state, and one of the continuing consequences of Snowden’s decision to shake up the world.

Telecom Companies as Privacy Custodians (Rogers and Telus tower dumps)

Yesterday, Justice Sproat of the Ontario Superior Court released a decision in a case involving Rogers, TELUS, and the Peel Regional Police. Back in 2014, the police force had requested “tower dump” data from these companies in order to identify some robbery suspects. The orders were so broad (the broadest ever, to the knowledge of the TELUS deponent) that the telecom companies opposed them in court. Despite the fact that the production orders were then withdrawn by police, the judge heard the case anyhow, and was able to offer guidance for police and telecom companies dealing with similar cases in the future.

David Fraser has provided a legal analysis of the decision, which found that “the Production Orders were overly broad and that they infringed s. 8 of the Charter” [42]. For me the most interesting aspects are what this decision tells us about the roles and responsibilities of intermediaries as privacy custodians. The decision states (on the issue of whether the companies have standing in the case) that Rogers and TELUS “are contractually obligated” to “assert the privacy interests of their subscribers” [38]. That is to say, the relationship these companies have with their customers creates obligations to protect subscriber information, and this protection includes defending subscribers against unconstitutional court orders. It is not reasonable to expect individual subscribers to defend their privacy interests in such cases — the intermediary should stand between the individual and the state as a privacy custodian (and this means making determinations about which police requests and court orders are unconstitutional).

Also of particular interest is the judge’s recommendation that police should request “a report based on specified data instead of a request for the underlying data itself”, unless this “underlying data” is required for some reason [65]. This means that instead of asking companies such as Rogers and TELUS for the personal information of tens of thousands of subscribers, so that the police can determine which subscribers to investigate further (presumably those in the proximity of more than one crime scene), the telecom companies could do this work themselves, and disclose only the information of subscribers that meet particular criteria. In effect, this type of practice would require and entrust intermediaries to do as much of the initial investigatory work as possible, handing over only the information that police need to proceed further. This particular guideline is meant to limit the privacy impact of such disclosures, since the judge notes that personal information in the hands of police can be vulnerable to being “hacked” [20], and that police in possession of such data are not subject to conditions on data retention [59-60].

For me, the unanswered question is: why Rogers and TELUS? There are larger players than TELUS in Ontario, but this is a company that has pushed back before against such overreach. If the police had no idea who the suspects or their mobile providers were, did they obtain production orders for all mobile providers, and only Rogers and TELUS pushed back? If so, did other companies fail their customers as privacy custodians by not opposing such orders?

Digital Sovereignty

In the 1990s, it became quite common to hear arguments about the ‘decline of the state’, and the accompanying loss (or diffusion) of sovereignty. Evidence for such arguments included the end of the Cold War, globalization, the growth of corporate power, and the internet. Today, many people still see the internet as an ungoverned, lawless place that no government can control, but academics have been arguing against this notion long before the Snowden disclosures. Today, the idea that the internet is immune to state sovereignty is presented as a ‘cyber-utopian’ fantasy that can be dispelled with countless examples of government power from around the world.

In Canada, IXmaps was born of pre-Snowden revelations of mass internet surveillance by the NSA on US soil. It has long been clear that the NSA has secretly exercised sovereignty over internet traffic which passes through the US, but might originate or terminate elsewhere (including Canada). One response has been to call for Canada’s federal government to promote “national network sovereignty”, which would “repatriate” the data of Canadians by keeping it within the nation’s borders. The Snowden disclosures have certainly strengthened desires to keep data contained by territory, but the idea of a sovereign Canadian network seems about as likely as a national broadband utility or Canada leaving the Five Eyes.

The Chinese state, which provided some of the earliest examples of just how sovereignty could be exercised over the internet through its “Great Firewall”, is now strengthening calls for “cyber sovereignty”. By this, President Xi Jinping means the “right” of each nation to govern its own patch of the internet, free from interference by other states.

Meanwhile, in the US and UK (and to a lesser extent, Canada), governments, police, and security services have complained about their inability to access communications — because of encryption. While the word ‘sovereignty’ is rarely used, the argument is that law and order in today’s society extends only as far as the state’s ability to access data. If a court orders that data should be accessible to police, but encryption makes this technically impossible, then the law becomes powerless in the digital age. Just as state sovereignty has traditionally meant a domestic monopoly over violence, sovereignty today has been equated with a monopoly over secrets. Only the state has the ultimate right to secrecy. The rest of us can maintain secrets, but only if government has a means to demand access.

Companies like Apple and Google, (whom some have called “internet sovereigns”) have pushed back, and in the US and UK their arguments have either been quite persuasive, or government arguments for backdoor access have not been persuasive enough. The limits of state sovereignty against encryption, originally tested by the controversy over the Clipper Chip in the 1990s, have largely held firm. While according to Mitchell Dean, the liberal order presupposes state sovereignty (and not the sovereign rights of service providers), sovereignty remains “an aspiration, a more or less accomplished fact” (p. 140). In regards to the internet and encryption, state sovereignty has been accomplished to a much more limited degree than many governments would like. But this has less to do with the incompatibility of state sovereignty and the internet, than with the fact that sovereignty is “an always open question, a matter of historical, political, linguistic and symbolic construction and contestation” (p. 141).

The current period seems to be a critical time for such contests, and as with the Clipper Chip, the outcome won’t be determined by the question of whether state sovereignty is fundamentally compatible or incompatible with a given technology.

Copyright trolls and online identification

My previous post dealt with copyright surveillance and algorithmic judgement, and here I want to focus on a particular kind of copyright surveillance and enforcement that has achieved a special sort of notoriety in recent years: copyright trolling.

Some of this is based on my most recent article, The Copyright Surveillance Industry, which appears in the open-access journal Media and Communication. I’m  also working on a future piece that deals with copyright enforcement, privacy, and how IP addresses and persons become linked.

Why this matters

First, copyright trolling is having an enormous impact, with hundreds of thousands of defendants named in US and German lawsuits in just a few years. Precedent-setting cases in other countries (such as Australia and Canada) have been determining whether this practice (sometimes called “speculative invoicing”) can spread into new jurisdictions. Some legal scholars have described copyright trolling as a “blight“, an abuse of the legal system, or a kind of “legal ransom“. Defendants must choose whether to pay what the troll demands, or face the prospect of an expensive (and sometimes embarrassing) legal fight. Balganesh makes a strong argument that this exploitative, profit-based use of the legal system disrupts the traditional “equilibrium” of copyright’s underenforcement.

Studying copyright trolling cases can also help us come to terms with the question of personal identification and attribution on the internet – what it means to connect traces of online activity to human bodies and the devices with which they interact. The thorny question of how to link persons to digital flows has been a topic of intense interest for a variety of surveillance institutions, including advertisers and intelligence agencies. Legal institutions around the world have been struggling with related questions in trying to assign responsibility for data communicated over the internet. Copyright trolling is just one example of this problem, but it’s one that is currently playing out in a number of countries on a massive scale.

What is a copyright troll?

Copyright trolls are the products of contemporary copyright regimes, internet technologies, and creative legal entrepreneurs. No one self-identifies as a troll, so the label is pejorative, and used to criticise certain kinds of copyright plaintiffs.

The term is derived from “patent trolls”: patent-owning entities that demand payments from companies allegedly infringing their patents. Like patent trolls, copyright trolls demand payments following alleged infringement of copyright. The difference is that a typical patent troll does not produce anything of value, and simply generates income through settlements and lawsuits. While the term “copyright troll” is usually reserved for law firms engaging in “trollish” practices, these firms represent copyright owners that do produce creative work for sale. It is typically the law firms that drive trolling practices. Some reserve the term “troll” strictly to describe those legal firms that acquire the ability to sue from copyright owners under certain terms (namely, to pass along a percentage of any settlements received to the copyright owner). The law firms can then exercise their copyright enforcement power autonomously.

The line between what is and is not a troll is more difficult to draw in copyright than patent law, since the law firms involved can point to a legitimate business that they are protecting and particular works being “pirated”. This has not stopped a number of authors from trying to come up with a workable way of delineating trolls from other plaintiffs, but these definitions end up encompassing only a particular slice of trolling operations (given their variability and opportunistic adaptability). There are varying degrees of autonomy that trolling law firms exercise: while some have a free hand in pursuing their legal strategies, others take direction from copyright owners. Because of this, I avoid labelling any specific companies as copyright trolls. Instead (and largely in agreement with Sag, 2014), I refer to copyright trolling as a practice – one that threatens large numbers of individuals with copyright infringement claims, with the primary goal of profiting from settlements rather than proceeding to trial on the merits of a case (see Curran, 2013, p. 172).

How copyright trolling works

In theory, copyright trolling can develop wherever a copyright owner stands to profit from initiating lawsuits against alleged infringers. The now-infamous Righthaven attempted to build its business model around suing people who were sharing news articles. Currently, Canadian government lawyers are accusing Blacklock’s Reporter of being a copyright troll, after the site filed suit against several departments and agencies for unauthorized sharing of the site’s articles. My focus here will be on the most common form of copyright trolling — suing people accused of file-sharing copyrighted works. Because the defendants in these cases are listed as “Does” until identified, and plaintiffs typically file suit against multiple (sometimes hundreds or thousands) of defendants at once, these cases can be called Multi-defendant John/Jane Doe Lawsuits. They begin with the collection of IP addresses tied to alleged infringement, proceed to the identification of internet subscribers assigned those IP addresses (discovery), and conclude with claims made against these subscribers in the hope of reaching settlements or (if defendants do not respond) default judgements.

A copyright surveillance company is used to monitor file-sharing networks (principally BitTorrent), where IP addresses of those engaged in file-sharing can be recorded. Just as the activities and IP addresses of downloaders and uploaders are largely visible on BitTorrent, so are the activities of copyright surveillance companies. This is because collecting information on file-sharing cannot be achieved without some level of interaction: connections need to be established with file-sharers so that their IP addresses can be recorded. Once a copyright surveillance company has collected the IP addresses involved in sharing a particular file, it hands them over to a law firm. While there are allegations that a particular German-based copyright surveillance company has been the driving force behind many US copyright trolling cases, typically the surveillance company exits the picture once IP addresses have been collected.

The next step is to identify the persons “behind” these IP addresses, and the only way to make this link is through the cooperation or forced compliance of an ISP. Since blocks of IP addresses are assigned to particular ISPs, a law firm can determine which ISPs’ customers to pursue by checking their list of recorded IP addresses. Copyright trolls have to be selective, targeting particular ISPs on the basis of geography (jurisdiction) or other factors. ISPs vary in their levels of cooperation with copyright owners that seek to identify allegedly infringing subscribers. In some cases it has been possible to get an ISP to forward a settlement letter without disclosing the identity of the subscriber (for instance, by abusing Canada’s notice-and-notice system), but in general the troll must obtain a court order for the ISP to identify its subscribers. In the UK and Canada, a court order used in a lawsuit to compel information from a third party like an ISP is known as a Norwich order. In the US, courts can issue subpoenas for ISP records.

It is this “discovery phase” of a lawsuit that has generated the most public information about how copyright trolling operates, since as previously mentioned, the plaintiffs in these cases generally avoid proceeding to trial. Instead, they use the legal system to identify individuals who can credibly be threatened by a large penalty if they do not settle an infringement claim. ISPs are effectively caught between the plaintiff and the alleged infringers during the discovery phase, and can behave in a number of different ways. In the US, Verizon has recently opposed a particularly burdensome subpoena from Malibu Media. In Australia, a group of ISPs have jointly opposed efforts to identify thousands of their subscribers in a precedent-setting case that continues to unfold. In Canada, Bell, Videotron and Cogeco complied with a court order to identify subscribers in 2012, but TekSavvy took a different approach in a subsequent case involving the same copyright owner — Voltage Pictures. TekSavvy claimed it could not oppose the motion to identify its subscribers (an argument disputed by Knopf), but it did go further than the Canadian incumbents in the previous case, and CIPPIC was granted intervenor status to argue against disclosure and for the privacy interests of subscribers.

Once IP addresses have been linked to subscriber names and addresses, the trolling operation can begin collecting settlements from defendants. Subscribers who ignore the copyright owner’s demands may end up subject to a default judgement, and those who protest their innocence may end up in a lengthy back-and-forth with lawyers, which in the US has included forensic examination of computers and polygraph tests.

IP addresses

In copyright trolling, the main challenge is linking IP addresses to corresponding subscriber information, which often requires a court order. But once this link is made, what does it mean? Is it evidence that the subscriber infringed copyright?

In criminal internet investigations (such as child pornography), IP addresses are only ever used as supporting evidence. IP addresses do not identify people, but they do become a crucial piece of information in tying people to digital flows and fragments. In a criminal case, the knowledge provided by this association can open the door to a further search of a property and computer hardware, ultimately leading to a conviction. It a copyright trolling lawsuit, an IP address leads to the disclosure of subscriber information, which leads to the subscriber receiving a settlement offer/demand (unless the copyright owner chooses not to send one, after discovering the subscriber’s identity). It is all well and good to argue that an IP address does not identify a person, until you are a person at the receiving end of one of these letters. At that point, you, as an identified person, have some decisions to make.

I will spend more time talking about IP addresses specifically in a subsequent post, as these digital identifiers are important in a variety of contexts besides copyright trolling. In the meantime, I’ll be paying attention to the drawn-out saga of the Teksavvy – Voltage case and how courts around the world learn from each other in dealing with copyright trolling.

The Copyright Surveillance Industry

My most recent publication The Copyright Surveillance Industry, appears in a special surveillance-themed issue of the open-access journal Media and Communication. In it, I examine the industry that has developed to monitor the unauthorized use and distribution of copyrighted works online. The same companies often help to facilitate copyright enforcement, targeting either allegedly infringing content, or the persons allegedly engaged in infringement. These enforcement actions include sending vast numbers of algorithmically-generated takedown requests to service providers, blocking uploaded content that matches the characteristics of certain files, or the lawsuits filed by “copyright trolls” and law firms engaged in “speculative invoicing”.

The scale and scope of the copyright surveillance industry

An interesting fact about the copyright surveillance industry, given the scale of its interventions (for example, hundreds of millions of Google takedown requests and copyright trolls targeting hundreds of thousands of defendants in both the US and Germany) is the industry’s relatively small size. It is certainly much smaller than the multi-billion dollar industry which develops technological defenses against infringement (known as digital rights management [DRM]), or the billions of dollars flowing through police, security, and military-serving surveillance companies. Copyright surveillance companies with just a handful of employees can leverage algorithmic methods to achieve online coverage on a massive scale. While some of their methods are closely guarded (notably, copyright trolls typically avoid proceeding to trial where their evidence would be subject to scrutiny), small teams of academics working with limited resources to track online file-sharing have achieved similar results.

The first wave of copyright surveillance companies were founded in 1999 and 2000, during the rapid rise of Napster. As file-sharing moved to other platforms, new firms sprang up and some were bought out by larger players. In 2005 MediaDefender (one of the more notable firms at the time, with major music, film, and software clients) was bought for $43 million. Another notable surveillance company, Media Sentry, was bought for $20 million in the same year. This appears to have been a time when enthusiasm for the industry was high. Four years later Media Sentry was sold to MediaDefender’s owner for less than $1 million. Subsequent acquisitions have involved undisclosed amounts of money, but this is generally an industry that deals in millions and tens of millions of dollars, and in which a large company might have several dozen employees.

Today, larger and more notable copyright surveillance companies include Irdeto and MarkMonitor – both the product of industry mergers and buyouts. MarkMonitor, which bought the prominent tracking firm DtecNet in 2010, was reported to have 400 employees in five countries in 2012. Irdeto entered the copyright surveillance market in 2011 when it bought the monitoring firm BayTSP and its 53 employees. These companies offer copyright monitoring and enforcement as just part of their “anti-piracy” or “brand protection” services. There are also smaller and more dedicated companies such as Evidenzia in Germany and Canipre in Canada, and more shadowy players such as Guardaley and its various alleged “shell companies“. Copyright owners (or the law firms that represent them), will seek out and hire these firms. Alternately, surveillance companies drum up business by approaching content owners, informing them that their content is being “pirated”, and offering their services.

Algorithmic surveillance

I’ll discuss copyright trolling and identification based on IP addresses in a subsequent post, but I want to take this post to discuss the sort of algorithmic surveillance commonly used in copyright enforcement. We see algorithmic surveillance wherever there is lots of data to scan and not enough discerning sets of eyeballs to go around, but the copyright surveillance industry has, since its beginnings, been driven by the need to comb through vast online domains, and to do so quickly and inexpensively (ideally, with as little human intervention and supervision as possible).

Much of what is reported, removed, blocked, or flagged as a result of these algorithms is rather uncontroversial from the perspective of copyright law. That is to say, a court might support the algorithm’s judgement that a particular act or piece of content counts as copyright infringement. But algorithms inevitably make mistakes, some of which are so ridiculous that it is clear no thinking human was involved in the process. These include misidentifying promotional content such as official websites and advertisements as copyright infringement. In at least one instance, a copyright enforcement company misidentified their own notices of infringement as actual instances of infringement and issued a takedown notice for them, resulting in a sort of algorithmic feedback loop. These automated misidentifications also result in removing legitimate content belonging to other copyright owners. In one 2011 case, Warner Brothers was accused of repeatedly and willfully issuing mistaken takedown requests. In response, the company essentially argued that it believed its identifications were accurate at the time, and mistakes were not willful because the volume of infringement meant that human beings were unable to fully supervise its automated monitoring.

While there are plenty of examples of algorithms behaving badly in the world of copyright enforcement, it is important to remember that what counts as copyright infringement is often not an easy determination to make. Courts continue to struggle with copyright law’s grey areas, with judges disagreeing on a variety of issues. This is particularly the case with various kinds of “user-generated content“, such as mashups, home videos, or parodies uploaded to YouTube. To make things worse, copyright owners often tolerate or even encourage unauthorized uses of their work (such as fan videos and other forms of fan culture) online. Expecting algorithms to adjudicate what counts as infringement in these circumstances has more to do with the business models of the web and media industries than copyright law. The same can be said for the expectation that users can identify which of their actions count as infringement in advance, and that users who are mistakenly targeted can appeal algorithmic errors when they occur. Ultimately however, copyright law supports and legitimates these practices, given that the potential penalties for not playing ball with copyright owners far exceed the consequences for abuse or automated carelessness in copyright enforcement.

Internet and digital technologies have opened new possibilities for individuals to create, consume, and distribute content. However, areas of contact between individuals and copyright owners have also increased. Legal and extra-judicial copyright enforcement mechanisms are being employed on a mass scale, based on questionable identifications of individuals and content, and often with limited recourse for those affected. We are likely to see continued calls to make the algorithms involved more accountable, and for ways to determine who can be held accountable for an algorithm’s decisions.

Canada’s cyber security and the changing threat landscape

My article, Canada’s cyber security and the changing threat landscape has just been published online by Critical Studies on Security.

Broadly, it grapples with what cyber security has come to mean in the Canadian context. The article deals partly with Canada’s Cyber Security Strategy, the operations of the Canadian Cyber Incident Response Centre (CCIRC) between 2011 and 2013 (a time of great concern over hacktivism [Anonymous] and Advanced Persistent Threats [China]), and what we can say about Canada’s cyber security orientation in the “post-Snowden era”. It is based on publicly-available texts and several years of Access to Information requests (the requests were informal, for documents already released to other people, giving me several thousand pages to work with).

What is cyber security, and why should we care?

Cyber security emerged from a narrow set of concerns around safeguarding information and networks, but in recent years it has become intimately tied to foreign and domestic political objectives. This means that cyber security cannot be defined and delimited in the same way as the field of information security (as protecting the confidentiality, integrity, and availability of information). Instead, cyber security is a collective endeavor, typically tied to the larger project of national security, but also encompassing a broader set of social and ethical concerns. This is why hateful messages sent by teens are now treated as a cyber security problem, while Canada’s government fails to acknowledge the international cyber threat posed by its foreign allies.

One of the key effects of cyber security strategies and classifications is that they specify the boundaries of what is to be secured. As the line between ‘cyber’ and ‘non-cyber’ continues to blur, the scope of cyber security’s concerns can expand to cover new kinds of threats. If it is true, as the opening of Canada’s Cyber Security Strategy 2010 declares, that our “personal and professional lives have gone digital”, that we now “live, work, and play in cyberspace”, then cyberspace is not just a new domain to be secured, but a fundamental part of our lived reality. This means that it is now possible to conceive of cyber threats as existential threats of the highest order, but also that the project of cyber security will have deepening implications for our daily lives. Some of these implications can only be discussed by referencing the work of security professionals – work which typically takes place out of public view.

Operational and Technocratic Discourse

My article began as a work of discourse analysis, but over time I turned increasingly to international relations (IR) and what has been called the “Paris School” of security studies. I found that previous analyses of cyber security discourse, influenced by the Copenhagen School, focused largely on public discourse, and how political actors work to get cyber security on the political agenda (as a response to new, existential threats). The Paris School meanwhile, emphasizes that new security issues can arise and be defined in the hidden world of security professionals and their technocratic practices. The volumes of internal threat reports, alerts, and government emails accessible through Access to Information became a rich source for this technocratic and operational discourse, providing a sense of how the moving parts of cyber security fit together in practice.

Hacktivism

Hacktivism is an interesting threat category to consider because, at least in Canada, it has never been subject to visible politicization. Unlike cyberbullying, no new laws have been proposed to deal with hacktivists, and public officials have avoided referencing the threat in their public proclamations. The Government seems more willing to deal with hacktivism quietly than to engage in a public fight against Anonymous, or to publicly condemn tactics that some see as a legitimate form of protest.

Nevertheless, hacktivism has become a major preoccupation for Canadian security agencies, as evident through volumes of operational discourse, including detailed reports and responses to hacktivist campaigns. Where cyberbullying can be reduced to a problem of ethical conduct, common forms of hacktivism such as DDoS reduce to a technical problem. A DDoS attack becomes hacktivism by virtue of its political motivation, and not its methods. While DDoS actions have typically been handled by CCIRC and CTEC as individual incidents, the operational threat category of hacktivism makes these events legible as part of a larger and pathological social trend, and the growing concern with hacktivism since 2010 indicates cyber security’s opposition to disruptive forms of online activism and politically-motivated hacking.

Advanced Persistent Threats (APTs)

As actors define and redefine cyber security’s terminology, they produce new conceptions, repurpose old ones, and experiment with metaphors. Sometimes, a term becomes a prolific ‘buzzword’, securing regular usage in cyber security discourse, and also inevitably becoming a point of contention. One of the best recent examples is the Advanced Persistent Threat (APT). This is the threat category that best represents cyber security’s oblique treatment of international affairs and the new strategic stakes of cyber security. Where hacktivism is the intersection of cyber security and protest in operational discourse, APTs bring cyber security into opposition against state actors. The term usually refers to a well-resourced threat actor willing to devote considerable effort to compromise a particular target, and is often understood to mean a state-backed attacker – sometimes becoming simply a shorthand for “China”.

In tracing the emergence and proliferation of this new threat category, it is possible to get some sense of the multiple constituents and channels of cyber security discourse. In this case, a category emerged in the operational discourse of the US military, spread rapidly through the North American security industry, and was adopted for internal use by CCIRC in the aftermath of a major security breach in 2011. Along the way it was used to classify a growing number of intrusions and data breaches, sell security products and services, and make intelligible a world of online geopolitical contestation. APTs could be invoked to specify a threat, while eliding the attribution problem and preserving nominal ambiguity in the international political arena. For CCIRC, APTs became an operational threat category at a time when Chinese hackers were widely suspected of compromising Canadian government systems, and the term proliferated into public discourse through Mandiant’s reporting of Chinese cyber espionage in 2013. Not long after, the Snowden disclosures had a dramatic impact on how we understand and talk about cyber security.

After Snowden

One of the most important revelations of the Snowden documents has been that the project of cyber security (at least as interpreted by signals intelligence agencies like NSA, GCHQ and CSE) can include compromising the very digital infrastructure it is tasked to protect. Domestic cyber security programs can become an “advanced persistent threat” – a term once reserved for foreign hackers. Given these developments, it is worthwhile to reflect on how the governmental project of cyber security has evolved in recent years, and what cyber security has come to mean. This is particularly important in Canada, a country closely implicated in US cyber security efforts, but where post-Snowden commentary has made comparatively little impact.

The lack of visible concern by Canada’s government about the security threat posed by its closest allies (a threat that Canada has apparently facilitated), speaks to how foreign policy shapes the nation’s cyber security priorities. It also sends the dangerous message that while Canada is unable to clearly define a vision of what it is trying to secure, cyber security is somehow compatible with pervasive surveillance and widespread hacking.

State cyber security agencies work to guard us from new threats, but seem blind to the possibility that they or their partners might also threaten our security. To paraphrase Google’s chairman, an attack is an attack, whether it comes from China or the NSA. For Canada’s CSE and the other Five Eyes members, the equivalence may not be as clear. If cyber security is subordinated to national security interests and compatible with government hacking, then threats will continue to be defined very differently by those inside and outside government. In addition to a broadening scope for cyber security’s concerns, the current trend is one of growing division between government cyber security efforts and more clearly circumscribed approaches to information security by private companies and civil society.

The idea that cyber security can be compatible with hacking domestic companies and maintaining vulnerabilities in commonly-used technologies might be seen as a continuation of the exceptional measures justified by 9/11. But more fundamentally, it reflects the technocratic imperatives of agencies tasked with gaining and maintaining access to communications infrastructure. The Five Eyes’ objectives go far beyond countering terrorism, and surreptitious access to communications infrastructure is increasingly part of the larger cyber security project. This dangerous vision of cyber security has evolved in secret, establishing procedures for who can be targeted, what can be collected, and where compromising security might help to make us safer. We did not learn of these measures through visible political discourse or securitizing rhetoric (the traditional focus of the Copenhagen School), but through operational documents and presentation slides from closed meetings of security professionals.

Measuring Canada’s Internet

For most people, internet performance is a mystery. Many subscribers do not even know the level of bandwidth they are paying for, let alone how to test if they are actually receiving the sorts of speeds their ISP advertises. Canadian regulators have often been in the dark as well, which is a problem when their decisions are supposed to take the availability and geographic distribution of broadband into account.

Regulators have traditionally depended on information provided by industry as a basis for policy decisions, but this information can be inaccurate or incomplete. There are ample cases in the US and Canada where certain regions have been listed as having access to a certain level of broadband, or choice of ISPs, whereas the reality on the ground has been far less than what is supposedly available. This problem is not unknown to regulators. Network BC, working with Industry Canada and the CRTC, launched its broadband mapping initiative in 2014. This included consultations with the various ISPs spread across the province to determine what services where actually available in what locations, resulting in an interactive connectivity map. Industry Canada watched the efforts in BC closely, and is currently soliciting information from ISPs to carry out a national broadband availability mapping project. However, such efforts to not include any independent means of actually measuring internet performance in these areas.

Up until now, the go-to place for Canadian internet performance surveys that utilize a third-party service (that don’t on ISPs for information) has been averages of Ookla’s speedtest.net (see here and here), which is the same service typically used by individuals to see how their internet connections measure up. But the results are not really meant to be a basis for policy decisions, since the averages are not pulled from a representative sample, and the (mean) speeds are often higher than what is available to a “typical” internet subscriber,

The big news in recent weeks has been the entry of new players in the internet metrics game. First, CIRA kicked off its own broadband mapping effort, which anyone can participate in and provide information to (an appropriate browser/OS combo may be required to participate). The map is very much a work-in-progress, which will fill out as individuals add more data points, and as new features and methods are added. Not long after, the CRTC announced its own internet measuring initiative. This is new territory for the CRTC, which has never had much of an ability to independently investigate or collect data about the telecom industry it regulates. However, the plan has been in the works since at least 2013, and may be based on the FCC’s Measuring Broadband America project, which has been underway since 2011. As in the US (along with Europe, Brazil, Singapore, and other nations), the CRTC’s program depends on the use of the SamKnows “whiteboxes” deployed at participating locations (the CRTC is currently looking for volunteers to receive and set up the devices). These devices measure connectivity between the subscriber’s premises and major connection points between ISPs.

There are a number of concerns (see here and here) with the CRTC’s efforts. ISPs could try to “game” the metrics to make their network’s performance appear better (ISPs know which of their subscribers have the boxes, since they use this information to make sure the testing doesn’t contribute to a subscriber’s data cap). SamKnows might only measure internet performance in off-peak hours, when connectivity is less likely to be a problem, since the boxes are intended to operate when subscribers aren’t making full use of their bandwidth (on another page, the CRTC has gone even farther to say the information will be gathered “when users are not connected”). Not all ISPs are participating the program, raising the concern that smaller players and rural areas that are most disadvantaged in terms of connectivity are being left out. This last point relates to the importance of having a representative sample, which is a fundamental precondition for any survey that attempts to calculate meaningful (or generalizable) statistics. All of the above can be addressed with a properly designed methodology, full transparency of these methods, and careful qualification of the results. Here, the CRTC has plenty of international examples to draw from, and SamKnows has built its business around such openness, but we will have to wait for more details to weigh in on whether this particular partnership has done a good job.

Finally, it is important to realize that no test can ever truly gauge the speed of “the internet” from a given location. Typically, the best that can be achieved is a measurement from a subscriber’s home to a “major internet gateway”, where an ISP connects to the rest of the world. The ISP has no control over how fast the rest of the world’s internet is, and limited control over the performance of services that aren’t hosted on its network. Even the fastest gigabit networks are no faster than their connections to services “upstream,” like Netflix – a problem the FCC had to contend with as it tried to measure the performance of ISPs that were engaged in peering disputes that limited their connections to the streaming service.

Ultimately, all of this indicates a broader trend towards data gathering to erase some of the mystery about how the internet actually “performs”. For individuals, these are welcome steps towards becoming better informed about what one’s ISP actually provides, but also about what goes into determining internet speed or performance in the first place. For regulators, accurate and comprehensive information is a precondition for effective public policy, and it’s great to see Industry Canada and the CRTC taking steps to refine the picture they have of Canadian connectivity as they come to decide important questions about the future of Canada’s internet.

Positive and Negative Responsibilities for Internet Intermediaries

I’m interested in the responsibilities of various “internet intermediaries”. These might be internet service providers (ISPs), online service providers (like Google or Netflix), or increasingly, some combination of the two functions under the same organizational umbrella.

Regulations require these intermediaries to do certain things and avoid doing others. Child pornography or material that infringes copyright must be taken down, but personal communications or online behaviours cannot be tracked without consent and a valid reason. Certain protocols might be throttled where necessary for “network management”, but otherwise ISPs should not discriminate between packets. It strikes me that these responsibilities – duties to intervene and duties not to intervene – can be likened to the idea of positive and negative rights or duties in philosophy, where positive rights oblige action, and negative rights oblige inaction.

If notified of the presence of illicit content, a host must take action or face sanctions. This is a positive responsibility to intervene given certain conditions. Privacy protections and net-neutrality regulations are often negative responsibilities, in that they prevent the intermediary from monitoring, collecting, or discriminating between data flows.

However, as with positive and negative rights, it is not always easy to tease the two apart. Negative responsibilities can have a positive component, and the two are often bundled together. For example, the positive duty to install a court-ordered wiretap is typically tied to the negative duty of not informing the wiretap’s target. Non-discrimination is a negative responsibility, but US ISPs have been accused of discriminating against Netflix by not upgrading links to handle the traffic coming from the video services. Under this logic, an ISP has a positive responsibility to ensure its customers have adequate access to Netflix. Anything less amounts to discrimination against Netflix. In Canada, ISPs also have a negative responsibility not to discriminate against video services like Netflix, particularly since Netflix competes with incumbent ISPs’ own video offerings. However, the Canadian regulatory regime seems to be headed towards imposing the positive responsibility on these ISPs to make their own video services available through other providers under equal terms, under the reasoning that equal treatment and exclusivity cannot coexist.

I think the distinction between positive and negative responsibilities can be useful, particularly since the majority of the academic literature about internet intermediaries has emphasized their positive responsibilities. There has been less discussion of all the things that intermediaries could be doing with our traffic and data, but which they choose not to, or are constrained from doing.