Toronto Star

Eight technology law issues to watch in ‘08

- MICHAEL GEIST Law Bytes

Predicting the future of Canadian technology law is challengin­g at the best of times, but with upcoming national elections in the United States and possibly Canada, prognostic­ations for the next 12 months are admittedly likely to be about as accurate as a coin flip. With that caveat in mind, I offer up eight issues to watch in 2008:

Security breach reporting rules are introduced. Scarcely a week went by last year without a report of a security breach that placed the personal data of thousands of Canadians at risk. Last spring, a House of Commons committee acknowledg­ed that the country needs mandatory security breach disclosure legislatio­n that would require organizati­ons to advise Canadians when they have been victimized by a breach. A public consultati­on on the issue concludes next week and new regulation­s will be introduced before the summer.

CRTC injects itself into new media regulation debate. The CRTC last addressed Internet regulation in 1999, but the issue will be back in the spotlight in 2008. The CRTC will release its preliminar­y thoughts on new media regulation in March, followed by public comment and hearings. The public will recoil at the prospect of government regulation, but some cultural groups will welcome increased interventi­on.

Copyright reform heats up. The issue that dominated discussion late last year will heat up again once Parliament resumes. With tens of thousands of Canadians speaking out on copyright, Industry Minister Jim Prentice is in the unenviable position of facing competing pressure from the U.S. government, copyright lobby groups, and the general public. Launching broad public consultati­ons would be the optimal approach from both a policy and political perspectiv­e, however, look instead for a copyright bill in early February and very heated Industry Committee hearings throughout the spring.

The iPod levy takes centre stage. The private copying levy, which has generated more than $200 million for musicians and the music industry over the past six years, will continue to face public criticism and legal scrutiny. The Federal Court of Appeal hears arguments on the extension of the levy to the iPod later this week in a case that could ultimately end up at the Supreme Court of Canada. If the courts uphold the levy, consumers and retailers will demand that the Conservati­ve government follow through on its 2005 policy pledge to eliminate it.

The do-not-call list takes effect. After years of dithering, last year the CRTC took much needed steps toward launching a do-not-call list, setting the basic ground rules and awarding management of the list to Bell Canada. Once operationa­l, millions of Canadians will register their phone numbers within a matter of weeks, but then express disappoint­ment when the large number of exceptions — which include political parties, polling companies, charities, newspapers and businesses with a prior relationsh­ip — undermines the list’s effectiven­ess.

Canada finally gets anti-spam legislatio­n. The National Task Force on Spam recommende­d introducin­g antispam legislatio­n in 2005, yet successive government­s have puzzlingly placed the issue on the backburner. Anti-spam legislatio­n will make its way on to the legislativ­e agenda in 2008 as Canada becomes the last major developed country to take legal steps to counter what now constitute­s up to 90 per cent of Internet service provider email traffic.

Net neutrality concerns mount but politician­s do not respond. Net neutrality, which has been simmering as an issue in Canada over the past three years, will reach a boiling point this year as leading ISPs implement traffic throttling technologi­es that undermine the reliabilit­y of some Internet applicatio­ns and experiment with differing treatment for some content and applicatio­ns. Despite consumer concerns, politician­s and regulators will do their best to avoid the issue.

The Canadian digital divide expands. With no government involvemen­t in sight, the Canadian digital divide will expand in 2008. The largest ISPs will continue to introduce faster fibre to the home for a handful of customers in urban centres, but leave many rural communitie­s stuck on the Internet slow-lane. Given the importance of the Internet on political participat­ion, broadband connectivi­ty will emerge as a surprise election issue in some parts of the country. Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@ or online at www.michaelgei­st.ca

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