It s stated goal is to give people the power to share and make the world more open and connected.

Transcription

1 BALANCING INDIVIDUAL RIGHTS WITH THE SOCIAL AND ECONOMIC BENEFITS OF A DIGITAL ECONOMY INTRODUCTION The World Wide Web and advances in broadband technology have presented enormous opportunities for economic and social activity. At the same time, these advances challenge legal norms that protect the privacy of individuals and raise issues of social and economic justice relating to access to this technology. In my presentation I am going to discuss some of the privacy issues that arise in the context of social media, Internet management and cloud computing. I am then going to discuss some of the issues that have arisen in a recent regulatory proceeding in Canada on the issue of universal access to broadband services. 1. PRIVACY ISSUES Privacy issues are at the heart of many new developments in communications technology. Examples include: Social media XCP Digital rights management technology Cloud computing Traffic management/net neutrality Many countries have enacted legislation to address privacy issues related to new technology. In Canada, we have the Personal Information Protection and Electronic Documents Act known as PIPEDA for short. Pursuant to that Act, we have The Office of the Privacy Commissioner of Canada (OPC) that investigates complaints and issues rulings. In the past couple of years the Commissioner has been very active in investigating Internet-related complaints. 2. FACEBOOK Facebook is reputedly the world s largest social networking site. It s stated goal is to give people the power to share and make the world more open and connected. Facebook collects and stores a considerable amount of information about its 500 million plus users. A fully completed Facebook profile contains over 40 pieces of personal information, including a full name, birthday, political and religious views, contact information, gender,

2 sexual preference, relationship status, education, employment history and at least one photo. Following a complaint regarding Facebook s privacy protection and policies the OPC conducted an extensive investigation which resulted in agreement by Facebook to make a number of changes to the ways that it collects, stores and shares personal information. Corrective measures that Facebook agreed to make included: Improving default security settings on a user s profile Increasing transparency about advertising Better informing users of the circumstances in which their personal information can be shared. 3. ADVERTISING In reviewing complaints related to Facebook s use of user information for advertising. The OPC distinguished between two types of targeted advertising: Advertising to users; and social advertising. The OPC found that use of aggregated user information to advertise to users on the Facebook site was a legitimate use of personal information because the site was free to users and it was a condition of becoming a Facebook member to agree to receive such advertising. However, social advertising was found to be more problematic. Social advertising uses the individual s actions, thumbnail photo and name to promote certain products or services. For example, if a user announced himself to be a fan of a particular restaurant on his Facebook page, this action would be posted to his friends news feeds and, if the restaurant purchased advertising from Facebook, the user s name and picture could accompany the ad endorsing the restaurant to his friends. In effect, the Social Ad takes on the appearance of an endorsement of the product by the user. While Facebook permitted users to opt out of this use of their information, there was no explanation of what social ads meant and the OPC favoured a requirement for positive consent following proper disclosure. Many of the OPC s concerns with Facebook s use of personal information related to consent. It is not sufficient to provide users with a negative option in the fine print of a contract. For consent to be informed, there must be a clear explanation of what is being agreed to and a requirement for a positive consent to use of the information. A Page 2 of 5

3 general consent to the terms and conditions of use of a website might not be sufficient to support use of user s personal information for targeted marketing, product endorsements or other marketing purposes. 4. STREET VIEW Google s Street View website also gave rise to privacy concerns in Street View enables users to view street-level imaging of neighbourhoods across Canada, as well as certain other countries. 28 million images were viewed in Canada on the first day after launch. This service captured certain personal information of individuals, such as vanity licence plates, images of people etc. without their permission, which reportedly gave rise to some embarrassing situations. The OPC took the view that individual consents were required to use this information. This prompted Google to develop new software to blur these types of images. Google has also committed to remove any image within 24 hours of receiving a complaint. 5. Cloud Computing Cloud computing raises different concerns. Cloud computing offers great benefits to consumers and businesses in terms of file storage, social networking sites, webmail and online applications generally hosted on remote computers. However, precisely because these services are provided off-site, the individual may lose control of the personal information provided. Data may be stored in different countries where different laws apply. Even if the contract with the service provider purportedly provides protection of individual information, local laws may override this protection. In Canada, the OPC has required that organizations within Canada provide a comparable level of protection to that imposed within Canada when personal information is processed outside the country. Since many such services are provided on a North American-wide basis, questions have arisen in Canada about the ability of U.S. Governmental authorities to access personal information of Canadians under the Patriot Act. 6. Internet Traffic Management/Net Neutrality In October, 2009 the national telecommunications regulator in Canada, the CRTC, issued its policy on the traffic management practices of Canadian Internet providers. Page 3 of 5

4 The CRTC described the objective of its policy as balancing the freedom of Canadians to use the Internet for various purposes with the legitimate interest of ISPs to manage traffic thus generated on their networks. In its ruling, the CRTC found that Canadian ISPs were engaged in traffic shaping, throttling and other traffic management activities but were not giving preferential treatment to their own traffic over that of their competitors. The CRTC ruled that it was legitimate for carriers to slow down Internet speeds for high use applications such as Bit Torrent services that consume large amounts of bandwidth in peak periods to the prejudice of other users. However, ISPs are prohibited from slowing down services in a manner that impedes real time communications. In its policy, the CRTC imposed a number of consumer protection measures on ISPs. Principal among these is a requirement to provide disclosure of Internet traffic management practices and the impact of those practices on transmission speeds in advance of entering into a contract. The CRTC also prohibited all primary ISPs from using personal information collected for the purposes of traffic management for any other purpose or disclosing such information to third parties. 7. Universal Access to Broadband Services One of the socio-economic issues presented by the digital economy is how to ensure that all segments of the population can participate in it. The digital economy can be an important enabler of regional economic expansion. However, to realize that potential, broadband infrastructure must be accessible in all regions at affordable rates. In 2010 the CRTC initiated a proceeding to consider: whether to include broadband access as part of basic service; whether to require carriers to build out their broadband networks; and whether to create a new subsidy system to fund such a build out. At the present time in Canada, 95% of the population has access to broadband service. This statistic excludes broadband satellite services, which provides 100% coverage of the country. The 5% of the population that do not have access to either wireline or fixed wireless broadband services reside in rural and remote areas of the country characterized by Page 4 of 5

5 extremely low population densities, and in some cases, challenging geographic and climatic conditions. The CRTC proceeding raised some difficult public policy questions among them whether the regulator should introduce a universal service scheme into what is a very competitive market or leave it to the government to subsidize specific service extensions out of general tax revenues. Some incumbent telephone companies favoured a regulatory subsidy scheme to extend wireline or fixed wireless services to all parts of Canada. However, as was revealed during the public hearing, this would require a $5 billion subsidy and would still not serve some of the most remote areas of the country. This proposal was opposed by many of the carriers, including broadband satellite providers who had already invested private capital to serve these areas using new high throughput satellites that are coming on stream in the next few months. They argued strenuously against using public subsides to essentially over-build their networks. Among the issues to be resolved are: Will satellite technology offer sufficient band-width at low enough prices to provide a comparable level of broadband service to that which is available in urban areas? What is the appropriate bandwidth and at what price? Is it appropriate to set bandwidth targets that may quickly become inadequate or should the market be left to respond to demand? The CRTC has yet to release its decision but it appears from a pragmatic point of view, that the appropriate technology will inevitably vary depending on the demographics of the region in question and climatic conditions. I am going to finish up with a few photographs that were presented at the CRTC hearing by some of the telephone and satellite service providers that serve the more isolated and remote parts of Canada. These slides help to explain the challenge of providing affordable broadband services to these regions and why the capital cost per NAS can exceed $30,000 using wireline services. [Run through pictures.] Finally, I have included a chart that was presented at the public hearing by a satellite service provider called Barrett Xplore. It depicts how best fit least-cost, technology will vary depending on demographics of the region being served. [Show graph] Page 5 of 5