Canada’s Cyber Security Seeks Public Input — Here’s Mine

cybThe Government of Canada is carrying out a public consultation on cyber security. Specifically, the consultation is being administered by Public Safety Canada’s National Cyber Security Directorate (NCSD). NCSD’s role is sometimes described as cyber policy and coordination, such as designing and implementing Canada’s Cyber Security Strategy, and the consultation asks for the public’s help in addressing some really thorny cyber security challenges.

On its face, it’s hard to know what to make of this consultation. PSC/NCSD wants to hear from “experts, academics, business leaders, and provincial, territorial and municipal governments” on the topic, but they also want “all citizens to get involved in a discussion about the security and economic dimensions of Canada’s digital future.” There are four main topics the government is consulting on, and a workbook has also been created to accompanies the process. The workbook breaks the consultation down into trends, themes, and related questions for consideration, but the contents seem designed to steer answers in particular directions, and the one topic that doesn’t include any specific questions is Canada’s “way forward”, the outlines of which seem to have already been decided.

Some of the questions in the workbook are ones that I imagine Government would love an innovative answer for (How can public and private sector organizations help protect themselves from cybercrime… and what tools do they need to do so?), while others seem loaded to produce a particular response (with “example” answers provided). I only hope that the responses to this consultation won’t be quantified as statistics (since this isn’t a methodologically-sound survey), or used to support decisions that have already been made. So let’s give them the benefit of the doubt and assume that NCSD really does want some help from Canadians in dealing with one of society’s most important challenges, and they’re open to all sorts of ideas.

To that end, I’ve provided my response to the consultation’s four “topic areas”:

The Evolution of the Cyber Threat
I think a lot of this has been covered in broad strokes by Canada’s Cyber Security Strategy and related documents. The threat has certainly evolved, in terms of actors, motives, and potential harm. State actors are increasingly involved around the world, and there are dedicated industries of criminals profiting from vulnerabilities. The most interesting way that I think the cyber threat has evolved in recent years is a recognition of the Five Eyes (Canada’s alliance with the US, UK, Australia and New Zealand) as a security threat. This recognition has certainly not come from the Canadian government, or even much of the Canadian population (as we really have yet to talk about this issue). Instead, the changing nature of the threat has been expressed most publicly by the likes of Microsoft and Google, after they learned through the Snowden documents that the Five Eyes were compromising their infrastructure and the relationships of trust these companies have established with their users.

The Increasing Economic Significance of Cyber Security
I don’t consider this to be much of a topic in need of public consultation, since it seems like Public Safety is already aware that cyber security is vital to the economy. It’s hard to put a dollar value on security, but it’s pretty obvious that the value of maintaining information security and the “losses” that result from various kinds of threats are enormous. Huge numbers are estimated and cited to justify the need for cyber security,  and I’m not sure that we need more accurate numbers (since we know they’re big), or that bigger numbers will compel action. We can talk about how better to communicate the seriousness of the issue, but I’m more interested in finding perspectives other than the economic lens to talk about threats. Government ideas about the value of the internet in Canada too often lapse into talk of the “digital economy”, and harms that don’t involve children are often expressed in economic terms. As people like Ron Deibert point out, we need to think more about the democratic/political dimensions of cyber security. This means articulating the value of connectivity in a way that doesn’t translate into dollars, but instead relates to our values as Canadians (like those “rights and freedoms” mentioned at the end of the workbook).

The Expanding Frontiers of Cyber Security
While the workbook discusses this in terms of the need for “cyber security [to] evolve at the same rate as new technologies” (p. 17), I want to use this topic to discuss the expanding scope of cyber security.

cyber

The workbook defines cyber security as “the protection of digital information and the infrastructure on which it resides. Cyber security addresses the challenges and threats of cyberspace in order to secure the benefits and opportunities of digital life” (p. 5). The first part of this definition is relatively straight-forward, and encompasses the domain of IT security. However, cyber security is not limited to these concerns, and Canada’s closest allies have used the language of cyber security to justify creating and preserving technological vulnerabilities in the service of strategic objectives. Meanwhile, it seems that Public Safety Canada considers “threats of cyberspace” to include more than just threats to digital information and infrastructure.

Internationally, cyber security now includes a variety of concerns, including over public order and morality. For instance, in Canada cyberbullying is sometimes listed as a cyber security threat alongside phishing and malware (particularly in Get Cyber Safe resources). Cyberbullying can certainly involve personal information being compromised, but it can also refer to the hateful and abusive comments found in many online media. The danger is that cyber security can be equated with online “safety”, which can mean safety from content that might insult, harm, or disturb.

The more concerning expansion of cyber security is as a justification for whatever actions serve national security or the priorities of state agencies. This is a worry because the goals of some state “partners” in cyber security are not to provide the public with the most secure technologies. In the US for instance, secret efforts to make commercial technologies (the same technologies widely used by Canadians) more vulnerable and less secure were justified as part of an ostensibly-defensive cyber security program (the CNCI). As discussed below, there is no reason to believe that Canadian agencies are an exception to the same tendencies demonstrated by their closest international allies in cyber security.

One the few things that all cyber security threats have in common is that they all involve a computer, or digital networks. Since we are supposedly moving towards a world covered in networked computers, the potential for cyber security’s expansion is a major cause for concern. I feel a lot more comfortable talking about information (IT), network, or computer security, because at least there the subject matter is relatively defined. Cyber security is more of a mixed bag, and I hope that the Government of Canada will keep the expansionist tendency of cyber security in check. Focus on the threats we know and are having difficulty defending against, don’t go looking for new forms of troublesome conduct involving a computer that can be listed as a cyber security threat, and let’s talk about whether the government’s idea of cyber security includes purposefully maintaining certain kinds of insecurity.

Canada’s Way Forward on Cyber Security
As part of Canada’s way forward, we need to take an explicit position on the extent to which we want to promote information/IT security at the expense of other conceptions of security, particularly those  favored by police and national security agencies. It seems disingenuous to promote the security of information and infrastructure, without acknowledging the limits that government agencies are comfortable allowing such developments. Police in Canada and around the world are well aware of this conflict, particularly after the Snowden revelations led to widespread adoption of more secure technologies, which are now an obstacle to their ability to investigate crime. The recent showdown between Apple and the FBI is a recent manifestation of this tension, and Canada should not simply sit on the sidelines and wait for these new “crypto wars” to play out in the US and Europe.

We also need to discuss our membership in the Five Eyes, because Canadians have never had a real opportunity to do so. Predicated on a secret treaty, the Five Eyes often acts as a coordinated group and an exclusive club, supposedly based on its members’ “common Anglo-Saxon culture, accepted liberal democratic values and complementary national interests”. Originally formed to further intelligence collection and the sharing of information in the interests of national security, today the Five Eyes also includes collaboration of a more defensive nature in the realm of cyber security. We know that Canada’s membership in the Five Eyes can be a privacy threat to Canadians, because of last year’s revelation that CSE had for years violated the law by sharing Canadians’ personal information with these allies. We know that the Five Eyes can pose a security threat to our information infrastructure, because of documents revealed by Edward Snowden showing how the NSA worked to weaken the security of commonly-used systems in order to more easily obtain intelligence (efforts in which Canada appears to have been complicit).

In the US, the Snowden disclosures resulted in the President’s Review Group on Intelligence and Communications Technologies recommending the separation of the NSA’s offensive and defensive roles, through the creation of a new agency to take over the NSA’s defensive “information assurance” mission. Canada has yet to acknowledge the contradiction at the heart the Five Eyes – where government agencies work simultaneously (or at cross-purposes) to both secure infrastructure and make it more vulnerable. In the US, the NSA is currently merging its offensive and defensive capabilities. This NSA reorganization contradicts the recommendations of the President’s Review Group, strains trust with non-government partners, but is at least being openly acknowledged and discussed. In Canada, a similar process of merging offensive and defensive capabilities may very well be underway at CSE, but this is just what we can deduce from five-year old Snowden documents, and the government’s position on this topic is limited to CSE’s statements about the same news story.

Can the Canadian government be a trusted partner in cyber security when it has never even acknowledged its role (or the conduct of its closest allies) in making information infrastructure less secure? Is it permissible to have one cyber security agency (CCIRC) responding to threats and vulnerabilities, some of which may have been created or kept secret by CSE and its Five Eyes allies? These are not hypothetical questions — just last week CCIRC issued an advisory to correct a vulnerability that the NSA had likely exploited for over a decade. If the attributions of security experts are correct, this means that the Canadian public is being notified about a security vulnerability that was kept secret and exploited by our closest cyber security ally, and we are learning about it through foreign actors whose motivations are unknown, but presumably do not include a desire to make our infrastructure more resilient.

Certainly, most Canadians have more to fear from more mundane threats, like phishing, ransomware, and others listed as part of the government’s consultation. But I wanted to focus on the Five Eyes because these are precisely the sorts of blind spots that need to be uncovered through public consultation. If government agencies will not acknowledge this threat, either because of secrecy or the failure to recognize what those outside government perceive, then it becomes the responsibility of Canadians to point out how the government’s version of reality is different than the one we are reading about in the news. However, at that point we are no longer having a shared discussion of cyber security, but two parallel discussions, with very different ideas of what constitutes a cyber threat.

These tensions at the heart of cyber security are not going anywhere, but by acknowledging them, the Government of Canada can at least take an explicit policy position, rather than the implicit one we can deduce from its former conduct. The Government of Canada has already taken the historic step of suspending metadata sharing with the Five Eyes until it is confident that this no longer threatens the privacy of Canadians. Before Canada resumes its full participation in a secretive alliance that works to both strengthen and weaken the security of systems we depend on, we need a stated position on such conduct. Specifically, are security vulnerabilities ever acceptable or desirable? Is it ever appropriate for government agencies such as CSE and the RCMP to use vulnerabilities that might otherwise be disclosed and corrected? What should we do when our closest cyber security allies are repeatedly found exploiting vulnerabilities and weakening security?

In response to the last of these questions, I would answer that Canada needs to either openly declare its support for government efforts to compromise security, including any limits or conditions, or it needs to publicly oppose these efforts. Only by working to strengthen IT security against all threats can the Government of Canada be a trusted partner in cyber security. To take no position at all by failing to acknowledge the issue is untenable, will weaken trust in government, and will continue the post-Snowden bifurcation of security into two separate discussions — one that includes government as a partner and one that does not.

Watching Six Years of the Regulatory Blockbuster

Regulatory

I spent a weekend re-watching videos of the “Regulatory Blockbuster” from the yearly Telecom Summit. The Summit is a major industry get-together, taking place over a couple of days in a Toronto convention center, with presentations, networking and deal-making opportunities for significant players in the telecom industry. I’ve only been able to attend once, but luckily if you’re interested in public policy the most interesting event at the Summit can be streamed on CPAC, where you can watch the last six years of the Regulatory Blockbuster.

The Blockbuster features an hour and a half of telecom industry lawyers (typically from incumbents Bell, TELUS, Rogers, a smaller provider or two such as WIND or TekSavvy, and John Lawford from PIAC) discussing the regulatory issues of the day. In previous years, each participant would get a few minutes at the outset to present what they thought were the most important regulatory topics, followed by questions from the moderator (cartt.ca‘s Greg O’Brien) or the audience. Sometimes the discussion gets a little heated, and it’s worth remembering that the people on the stage can be embroiled in disputes with one another at the CRTC or before the courts. It’s common for participants to point out the self-serving nature of rivals’ arguments, to allege hypocrisy or inconsistency, and to present themselves as disadvantaged victims of government regulation (or lack thereof).

As an observer, it helps to understand the underlying conflicts and regulatory proceedings being discussed. However, even without knowing the nuances of CRTC procedure or regulations, the Blockbuster provides a sense of what kinds of issues are keeping industry lawyers occupied. It’s also an opportunity for participants to air their complaints with the existing regulatory regime.

The Mandated Access Regime

In the previous five years, the dominant issue at the Blockbuster has been how government regulates relationships between competitors in the industry, specifically through mandated access to incumbent facilities and wholesale connectivity. Other regulatory issues come and go as they pass on and off the federal government and CRTC’s agenda — lawful access, spectrum auctions, reviews of basic services. But mandated access has endured and expanded since the late 1990s, causing no end of complaints from both incumbents and the smaller competitors it is intended to benefit. In 2010, participants in the Blockbuster offered some analogies of how we might understand obligations under the regime. One likened it to a system in which airlines must reserve a certain number of seats for passengers of competing airlines, or parcel delivery companies are obliged to deliver the parcels of smaller competitors. In Canadian telecom, these obligations generally mean that the large incumbents (including Rogers, Bell, Shaw, TELUS) must allow “independents” (TekSavvy, Distributel, and many other smaller players) to use incumbent infrastructure and to purchase wholesale connectivity at set rates. These rates are meant to ensure that incumbents can profit from this arrangement, but the result is a system where small providers depend on large providers, and both compete for the same customers.

The conflicts that result are quite predictable. Small players argue that wholesale rates are too high for them to compete or expand their business, while large players argue the rates are just right, too low, or that mandated wholesale should be eliminated. Because the so-called independents are actually highly dependent on incumbent infrastructure, they must rely on their larger competitors to connect customers and resolve technical issues, such as network outages. Incumbents are therefore obliged to help their smaller competitors address customer concerns, and complainants at the CRTC have argued that incumbents treat competitors’ customers differently than their own.

From the outside, the whole setup looks ridiculous — as if it was designed to impose contradictory pressures and inevitable conflict amongst industry players (as well as endless proceedings before the CRTC). But to understand this regulatory regime, we need to consider that it was intended as a temporary framework to deliver us to the mythical land of facilities-based competition.

This image from the City of Calgary's November 28, 2014 presentation to the CRTC speculates what a future of competing fibre facilities would look like
This image from the City of Calgary’s November 28, 2014 presentation to the CRTC speculates what a future of competing fibre facilities would look like

Facilities-based competition remains a myth because the world it envisions has never been clearly spelled out. Instead, facilities-based competition reflects both the persistent drive to create something resembling a competitive market in Canadian telecom following the monopoly era, and a rejection of the sort of structural (and functional) separation practiced in other parts of the world (most notably, large parts of Europe). Facilities-based competition means a telecom marketplace populated by competing networks (facilities): the Bell network competing with Rogers, TELUS, Shaw, and whoever else can afford to build telecom infrastructure. It has never been clear just how many competing networks there should be (with the exception of wireless, where the previous government seemed committed to bringing about four national competitors). However, while incumbent participants at the Blockbuster love to emphasize just how hard they compete with one another, the CRTC has repeatedly indicated that the current state of competition leaves a lot to be desired. Although Canada has hundreds of service providers, their facilities often do not overlap. Incumbents are sometimes classified as operating either inside or outside of their “territory”, and are reluctant to “overbuild” facilities where these already exist in a competitor’s territory (hence, Bell and TELUS have been repeatedly criticized at the Blockbuster for “sharing” facilities in their respective territories). Smaller competitors have sometimes wondered just how many competing wires the world of facilities-based competition imagines going into each home, and where the money to build all of these competing wires is meant to come from.

The CRTC has tried to address the inadequate state of competition in Canadian telecom through the mandated wholesale regime. The original idea (known as the stepping-stone or ladder-of-investment theory) was that small competitors could use the facilities of incumbents until they grew to have competing facilities of their own. Once some adequate number of competing facilities had flowered, the hand of regulation could fall away, and the market would take care of the rest. However, this never happened.

Instead, mandated access seems to be here to stay, and regulators talk a lot less about facilities-based competition than they used to.

The 2016 Telecom Summit

You can see the changing view of the mandated access regime through the past six years of the Blockbuster. By this year’s event (concluded earlier this month), the legitimacy of the regime was hardly raised as an issue (although Ted Woodhead from TELUS did remind everyone that the job of the CRTC had been to promote facilities-based competition, and that’s what “got us to being a leading broadband nation in the world”). A somewhat bigger concern was whether the CRTC was flouting the “law of the land” by effectively ignoring the 2006 Policy Direction — a document that was in many ways the high-water mark for the idea of facilities-based competition. There’s some dissonance in a regulator that has to justify its actions with reference to a document from a previous era in policy. Since the Policy Direction still stands, every decision the Commission takes is haunted by the ghost of Maxime Bernier reminding Canadians that they live in “a capitalist country, a country of freedom, and that regulation must be as limited as possible, to allow market forces to play out, particularly in telecommunications.”

Since 2006, we’ve seen a decade of continued mandated access, and a gradual acceptance of the fact that this regulatory approach is here to stay, even if we’re not clear on what the outcome is meant to look like. The recent expansion of mandated access to fibre seems to aim for a world of competing “middle-mile” networks, since the CRTC recognized that competitors “cannot feasibly or practically duplicate” last-mile wired networks (the part of the network that physically runs into your home).

I should note that the ghost of Maxime Bernier haunting the CRTC is just the imprint of his time as Minister of Industry between 2006 and 2007. The man himself is very much alive, seeking the leadership of the Conservative Party, and also spoke at the 2016 Telecom Summit. There, he lamented that the CRTC “seemed to take the Policy Direction seriously for a few years” before it “reverted back to its old ways”. Echoing incumbent positions at the Blockbuster (and deploying the wisdom of Ronald Reagan), Bernier asserted that the CRTC had failed to recognize just how much competition there was in Canadian telecom, which led him to conclude that the Commission should get out of telecom regulation altogether.

At the 2016 Regulatory Blockbuster, there were no calls for the CRTC to get out of regulating telecom competition and wholesale access, but incumbent participants gave their usual warnings about the harms of regulation, and much of the discussion was about what the role of the CRTC should be in these times. The first set of opinions was on Chairman Blais’ remarkable statements about digital strategy during the Basic Services hearing. Then (after a suggestion for CRTC procedural reform floated by Mirko Bibic), discussion turned to Commission’s relationship to industry and the public. Incumbents expressed the desire for a better way to sit down and talk with the CRTC, and even PIAC’s John Lawford voiced agreement that things had gotten out of hand in recent hearings — with so many diverse voices pulling the discussion every which way. The Commission has tried to do a better job including the public, and recently numerous people have been engaging with the process for the first time. Admittedly, hearings would run more smoothly if there was a single voice speaking for the public interest, but that’s not the direction things are headed.

The rest of the time was spent discussing those topics that have come to the fore depending on the regulatory cycle and the whims of politicians. The biggest of these was the Basic Services review (and how to fill various gaps in connectivity), but Quebec’s Bill 74 also came up for discussion. While most Canadians haven’t heard of this issue,  telecom lawyers are seriously worried about what it means for a province block websites in order to maintain control over gambling.

Conclusion

So what do you learn from watching close to ten hours of Canadian telecom lawyers on a stage? First, as someone who tries to study changes in telecom policy, the archive of these videos is a very valuable resource, for which I’m grateful to the Summit organizers, CPAC, and the participants who put themselves up there each year.

Secondly, some new regulatory issues come into play at each Blockbuster, and some things stay the same. Facilities-based incumbents are going to keep advocating for facilities-based competition, but in 2016 this means pointing to a previous era in telecom policy. Incumbent representatives at the Blockbuster like to fondly remember previous iterations of telecom regulation (remember when government said it would let the market sort things out?), because today’s regulatory environment seems more hostile and just plain confusing.

What was once meant to be a temporary scaffold (mandated access) has become an enduring regime. Facilities-based competition was once the goal of regulatory liberalization, but at the CRTC it has now either shifted in meaning (from the last mile to the middle mile), or describes some competitive ideal that will always be out of reach. Since there seems to be no appetite for getting rid of mandated access regulation on the one hand, or for doing away with the goal of competing private networks on the other, this ambiguity seems set to continue for a long time.

Cabinet Rejects Bell’s Wholesale Appeal

DSCN5972cropToday, we learned what the Government of Canada thinks about Bell’s petition to overturn the CRTC 2015-326 Telecom Regulatory Policy, which will open fibre networks to wholesale access. I’m not sure if anyone is surprised by this decision, since there were no indications that the Liberal cabinet (namely, Navdeep Bains, Minister of Innovation, Science and Economic Development) was predisposed to favour Bell’s position. In fact, there hasn’t been much indication of what the Liberal government’s stance is on telecom policy, or how it differs from the previous government. As a result, many are looking at this decision as a “first hint” of what to expect.

So, let me join the speculation about what this 200-word government statement really means:

First, cabinet recognizes that “wholesale broadband is a proven regulatory tool for enabling retail competition in the Internet service market”. This aligns with the increased legitimacy granted to wholesale access by the previous government, along with the CRTC’s decisions in recent years. The wholesale access regime is no longer imagined as some temporary stepping stone to facilities-based competition; mandated wholesale is here to stay. If the CRTC wants to focus the scope of facilities-based competition on the middle-mile, that’s fine, but this government values retail competition and consumer choice.

This government also seems to be playing it safe and leaving its options open. Supporting the CRTC is the default choice for cabinet, and there’s no strong reason or principled policy here for doing otherwise. The language used by the Minister echoes the Conservatives’ consumer-focused telecom populism, but it also indicates that the government’s telecom policy boat is maintaining its current heading. If this continues, the Liberals could simply avoid leaving their mark on telecom policy and manage the file according to a familiar pattern: espousing the importance of competition, supporting access to incumbent facilities, and distributing one-time injections of funding to individual broadband projects.

The other option would be for the Liberals to do something distinctive, which is probably what CRTC Chairman Blais was hoping for when he brought up the lack of a broadband policy in this country. There’s still no reason for me to believe that any distinctive digital policy in the works, and if it is, it will likely be a long time coming as the Liberals have plenty already on their plate. In the short term, the Bell-MTS deal could be another opportunity for the government to spell out what its vision of a competitive telecom industry looks like. However, my guess is that we will learn more from the government’s decision in that deal than whatever brief statement accompanies it.

 

Essential Broadband

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.