 to be here and as was noted it's fantastic to get to be here in person again with these kinds of events. It's been a long time and it's great to have the opportunity to again get back to face to face. So I focus on sort of the intersection between law technology and policy. There is a lot happening right now in Canada and what I wanted to do was use my time to try to bring you up to speed on what is happening, alert you to the kinds of changes that have been taking place because there have been some pretty big ones in terms of where the Canadian government is at and in a sense urge you, this community, to become actively engaged because these are issues that I think directly affect all of us, certainly direct all Canadians but particularly those coming from the security, technical, privacy, online communities the implications of some of these policies I think are profound and it is essential that our policy makers, our politicians and others better understand some of the implications of what they are deciding. So I titled as you can see what lies behind Canada's internet regulation reversal and when I refer to a reversal I would take us back quite a while back to the late 1990s when our broadcast and telecoms regulator the CRTC was first thinking about the internet and whether or not there was or what the role might be from a regulatory perspective. They took the position that they had the power to regulate online services, we didn't have Netflix at that point in time but they took the position that the broadcast act would cover those kinds of things but that it wasn't in the public interest or within the policy interest to do so. That led to some pretty innovative if somewhat controversial services, I don't know how many people remember this service here iCraveTV, it was in a sense the YouTube before there was YouTube where this service was able to take over the air television streams, rebroadcast them so that people on their 56k dial up modem could try to watch this little box of television. Television broadcasters and others thought this was outrageous, nobody would ever or should ever be able to watch video on the internet they thought and so tried to find ways to stop services like this but the Canadian policy was largely designed to facilitate that kind of innovation and it was that approach that was pretty consistent for many years. We can go back a number go forward I suppose a number of years later some of you may recall this incredibly cheesy video that then Prime Minister Harper put forward when he declared that there would be no Netflix tax he loved Breaking Bad was the television show he decided to talk about and that there would be no there would be no internet taxation or no Netflix taxation in fact even in fairly recent times under the liberal government we had then heritage minister Melanie Jolie look at this issue and come to the conclusion that Canada was better off working with many of the large internet services like Netflix rather than moving towards mandated regulation in fact this picture here which would be unthinkable in the current environment is not didn't take place that long ago this was the launch of the sidewalk labs so-called smart city project in Toronto the smart city proposal between waterfront Toronto and and Google I was I served actually as waterfront Toronto's the chair of their digital strategy advisory board but the launch of this event which of course includes the Prime Minister includes the then Premier of Ontario Kathleen Wynn the mayor of Toronto and Google executives Justin Trudeau doesn't want to be in the same city as a Google executive right now much less appear on the same stage as one I'm not I'm not sure that that's right I don't think that's that's that's the kind of policy positions we ought to be taking but that is where we stand now and even as recently as the trade agreement between Canada the United States and Mexico there was policies put into that trade agreement that were consistent with sort of pro internet pro innovative approach that's eschewed some of the regular regulations that we're starting to see now so for the better part of two decades in Canada we had a largely hands-off pro innovation type approach one in which that those kinds of policies were imbued within our trade agreements within the kind of regulations we saw whether that was on broadcast or telecom copyright a whole range of different things well where are we now and why the change because there has been a significant change the kinds of things that we see being focused on right now either past or debated right now in the House of Commons in the Senate include changes to our elections act changes to taxation related policies and a series a trio of bills bill c11 which deals with online streaming c18 which is described as the online news act and one further bill that we isn't a bill yet but will be one in the not too distant future dealing with online harms or now the government has framed it as online safety I think it's worth noting what's not on that list so for example privacy a key issue that we want to talk about on this in these groups of talks is not or has not been a top government priority there was a piece of legislation that sought to reform Canadian privacy law introduced in the last parliament but it went absolutely nowhere I pretty much at this stage talked about as much about the bill here as they talked about it in the House of Commons it was brought forward they had scarcely any debate it never went anywhere despite the fact that I think there's a lot of people that would say that privacy ought to be one of the core priorities so too with competition law concerns around the role that some of the largest internet platforms play and trying to ensure that our competition laws ensure a pro competitive environment where there's no abuse of dominance and the like yet that hasn't been a major priority Taylor Owen from McGill argues that the kinds of approach that we see both in terms of what's on the list but notably what's not highlights a government that seems to often be focused on symptoms rather than the cause the the problems that we see whether that's some speech related concerns or are some of the kind of competitive concerns we see around content tend to be symptoms of a broader problem not the cause of the problem yet the approach we've seen to date tends to focus on those symptoms I like to think of this approach more as the government viewing the internet as a policy ATM where there's plenty of money to be taken out just about all the legislative initiatives that we see envision new payments coming from the big tech companies in order to fund government policies and in fact they want the tech companies to fund the regulatory processes as well now there's a compelling argument that those companies need to contribute more but at a time when we are concerned I think or many are concerned about our dependence on those companies establishing structures in which our policies are dependent on those very companies only makes them more powerful and our dependence increasingly notable so why has all of this happened I'd highlight I wanted to highlight just a couple of things and then I will get into what has been taking place so that if these are issues of interest hopefully you can become more actively engaged I think there's several points that sort of had events that took place over the years that began to spark a shift certainly not just in Canada but in other countries but I think most know it's certainly notably here one of course if you think about some of the election related stuff that I'll talk about in a few moments had to do of course with the 2016 election in the United States and concerns about Russian government interference and the use of internet platforms and doing so in Canada alongside many other countries race to try to find ways to address some of those issues on the culture side with respect to broadcast and content I think it's fair to say that Melanie Jolie's proposed approach with respect to Netflix fell flat particularly in this province and the message that the government took away from that was that an approach that sought to work with these companies even as some of those companies invest hundreds of millions of dollars wasn't the way to go that a sharper edge was needed one in which a more hardened regulatory approach was the one that the public was looking for globally events took place whether in Europe or in Christchurch or elsewhere that I think sparked in many a rethinking around some of the harms that were taking place online and the view that there needed to be a more proactive regulatory approach by the government here's Canada joining the Christchurch call to deal with terrorists and violent extremists online now those are some of the external events I did for just a moment they'll want to highlight one other event or individual that was the target of some just awful misogynist content and targets online and that's Catherine McKenna a former cabinet minister and I mentioned this because when you talk to members of parliament from all parties not just the current government but opposition parties as well when they saw what McKenna experienced it personalized these issues in a way that I think in many ways it hadn't previously now I don't think it should take attacks against one individual for politicians to begin to realize that it's important to have appropriate policies but I don't think there's any doubt that when many politicians look at what takes place online they look at look at it through that framing and have the view that they need to be doing something about it well what is it that they have said needs to be done on the election side they've already done it and it's actually proven to be fairly successful the view was the best way to deal with concerns around electoral interference online was greater transparency if we better understood who was advertising and how they were doing so on the large platforms that kind of opening them up providing some sunlight into those activities that would have the effect of either doing away with some of the more problematic stuff or at least allow the public to better understand what was taking place and so we passed legislation in Canada that required the large platforms the Facebooks and the Google's if they accepted electoral advertising to create a transparency database in which anyone can go take a look to see who was engaged in that advertising now the response from some was to say well we're going to just walk away from this altogether so Google said our response if the requirement is to build this is this infrastructure and create all these new rules we're just happier washing our hands of this advertising all together and we will simply block electoral advertising during the particular period Facebook on the other hand actually did create the database the so-called now meta ad library and it is a fascinating experiment in the way transparency can have a real world impact you can go on this and see whether or not whether or not your local member of parliament has used Facebook to advertise how much they've spent if they have who they've targeted in the like it's all available there and what we learned was that when you make this kind of information more transparent it doesn't necessarily stop politicians from advertising on platforms in fact it doesn't stop them from doing it at all this kind of advertising often works but what it does do is often stop some of the third party a bit more sketchy kind of advertising that in the past might have been disguised harder to actually identify and find suddenly once it becomes outed it becomes transparent the impact that it had is diminished and much of that kind of advertising largely went away now it's open to debate the extent to which a foreign government was looking to interfere anyway but regardless the approach that we took one that didn't come in with high-handed regulations but said transparency can be effective actually was a fairly effective approach but that was an early approach and as we'll see in a moment the approach we've seen in other areas I think is quite different quickly on taxation as many of you will know by now in Canada digital taxation is here in a number of different ways it's certainly here in this province it's now here it's now nationally with respect to digital services so there have been two core arguments around taxation one has been the question of whether or not there should be sales taxes so to speak HST QST GST on digital digital services whether that's Netflix or some of the Apple services or Spotify and the like and increasingly over time as those services became more and more prominent in our lives constituted a more and more relevant part of the economy the argument was governments could no longer overlook the potential revenue benefits that would come from that much less the competitive implications of some services being required to collect and remit those taxes and other services being exempt if they were located outside the jurisdiction and so where we find ourselves now in Canada is in fact that these sales these taxes apply more interesting I think is the so-called digital services tax something that we don't have yet but it stems from the view that the large tech companies in particular don't pay enough tax on the revenues that they generate within this country and this isn't an issue that is playing out only in Canada it plays out in a great many jurisdictions around the world as countries look at these companies that are clearly doing exceptionally well for the most part and from a taxation perspective have often been able to structure themselves whether by way of the intellectual property that they run where they where they situate themselves from a corporate perspective and the like outside of jurisdictions to engage in tax minimization now of course every company every one seeks to engage in tax minimization but this has become more pronounced and so what we've seen is increasing number of countries established policies where they want to charge a sur-tax on tech companies called a digital services tax basically trying to tax some of the revenues they generate from our data and from some of the other benefits that accrue within the country there have been attempts to create a national agreement an international agreement on this issue and the approach that we are seeing right now is that Canada has said if this international agreement does not come to fruition is not implemented by 2024 Canada will begin to levy this tax so an attempt to make sure these companies pay it starts in 2024 let me in my last few minutes talk specifically about the legislation that is those are things that are basically done let's talk about a few things that are forthcoming first bill c now c 11 it used to be c 10 this is the now called the online streaming act and it has a fairly controversial history although it started life pretty uncontroversially back in november 2020 as bill c 10 essentially build as legislation designed to ensure that large streaming services like netflix and disney amazon prime made contributions to the canadian broadcasting system in much the same way that conventional broadcasters are required to now there is an interesting and i think important debate that we could have about the contributions those companies already do make in fact if you take a look at the funding for film and television production in canada right now you find the largest growing source indeed now almost the most important source other than tax credits is in fact foreign funding it's the netflixes and amazons that are paying for much of the production that takes place right now when there are claims that they don't fund canadian content that overlooks the fact that they can't when just a decline the film that netflix funded to create here in cobec with cobec crews cobec writing it ticks every single box that you would want to have about cancon but for the fact that netflix owns it and if netflix owns it it can't be cancon so when disney creates turning red based in toronto or amazon creates a mini series on the toronto may beliefs all of these things seem pretty canadian with canadian crews on the like yet they are not canadian for these purposes which is why you often hear these companies don't create any cancon it's because the system doesn't effectively allow them to even if they are providing big funding and doing so but nevertheless it's not all that controversial to say let's make sure that they provide these additional contributions where this became controversial was when the government said not only are we going to apply these rules to the big streamers we're going to apply them as well to user-generated content to you to the content that you and i create or that is being created right now let's say on the twitch stream that this that this talk is going out over the view of the government was all of that are programs that might also be or should also be subject to some form of regulation that sparked the fair amount of controversy the bill didn't pass it is now back as bill c11 and while the current heritage minister pablo rodriguez has said that he has fixed the issue just last night even the crtc chair ian scott said no yeah no the reality is the bill does give us the power to regulate user content frankly anyone that reads the bill can see that that's plainly the case well what does that mean we get into the issue of regulating user content in this world part of it means discoverability requirements where the crtc could go to youtube or tiktok or instagram and say we want to ensure that canadian content gets prioritized in what people see which sounds great unless you're a digital first creator and it's not even clear that you can be identified as canadian for the purposes of some of these services this isn't something that they typically even have information on but it gets worse for digital first creators especially those that generate most of their revenue outside of canada because the algorithmic choices that take place let's say on a service like youtube looks not only at what people click on but also what they choose not to click on and if people's youtube feeds are suddenly filled with content that is there not because the algorithm tells them that this is something they might be interested in but rather because a broadcast regulator says this is the kind of content that has to be included the likelihood of clicks is far lower than the kind of content they're looking for the problem here is that the message that sends to youtube and its algorithmic choices that this is content people don't like when they're presented with it they don't click on it and so what you end up with is more potential views in canada but the multi-billion person audience that is located outside the country that so many of these creators depend upon well that those people suddenly find themselves demoted elsewhere and so bringing in the government to say that they're going to regulate this kind of content raises enormous kind enormous numbers of concerns now we've also seen the government move forward with bill c18 online news which also i think starts from this view that you know who could oppose we know that many of the news services right now are struggling we should find a way to support them and the approach that the government has chosen is to follow a model that started in australia it basically starts by saying let's identify the platforms that we want to make sure make contributions google meta facebook perhaps twitter apple uh linked in microsoft and some others and then let's decide which so-called news organizations qualify and the government's taking a very broad approach it's not just traditional newspapers it's broadcasters it's the cbc it's radio stations all of these are potentially subject to it in fact you don't even have to be canadian in order to qualify for the system so long as you have a couple of canadian journalists let them negotiate a deal if they are unable to negotiate a deal let's have our broadcast regulator review it to decide if it's good enough if they say it's not good enough then they say sorry not good enough and you go to a mandated arbitration system in which both sides must put forward offers about what they're willing to pay and the arbitrator will have to make a decision and the government even said even dictate some of the kinds of things that can be offered as part of this process now from the government's perspective this was said in the house just a week or so ago it's simple tech giants need to compensate canadian journalists when they use their content that's it no more no less this is a market-based solution but when we take a look at what the legislation says take a look at what use so-called actually means now i should start by noting use isn't even a term in this legislation doesn't talk about using news it talks about making news content available well what according to the canadian government is making news content available well part of it is reproducing the news so if you took a news story and you you made it available in full text let's say in a facebook chat or on google that's something that would be required to be paid for and i think many would say well we can understand that but take a look at the second part of this definition access to the news including any portion of it that is facilitated by any means including an index aggregation or ranking of news content think about some of what some of that stuff might mean even the first one news content or any portion of it put forward a headline on google that or on on facebook that's making a portion of it available create an index of montreal based newspapers which google natural google does just to their front pages not to actual news stories that's making that that's facilitating access to news this idea the government's view is that all of these things are somehow of value not to the news site that's actually getting this traffic delivered to them but instead somehow google is benefiting from sending that traffic on to these sites not copying the news in some instance just sending it along now at the moment this only applies to or would only apply to the large internet platforms but think about what the government is actually saying here the idea that base search indexes might be compensable in terms of requirements to pay linking might be might be compensable in terms of a requirement to pay and then ask yourself what makes the news so special if it's news requires payments for links if it's news that gets to require payments for inclusion in a search index what is to stop anyone else from saying hey google you put my website in your index i'd like to get paid too hey facebook someone created a link to my blog shouldn't i be paid as well and suddenly that kind of free flow of information that we all depend upon is lost now this slide you cannot make out but this is just a slide that highlights the number of of issues and policies as part of this bill that are dictated by either the government or the crtc i put this up to tell you this is what the government thinks is limited market interference it's deciding everything from who participates to what these agreements can look like uh ultimately to approving the agreements themselves now finally in my last two minutes the last issue so-called online harms now often called online safety issues around hate and terror and the like online now on that process the government conducted a series of private consultations and had planned to introduce legislation but held off given the controversy over c 10 and i think the prevailing view that the then heritage minister steven gibo was maybe not the best communicator um when it came to that bill much less a bill dealing even more controversially with uh online harms issues so what they did instead was hold a consultation last summer and made the decision not to make the submissions available to the public instead they issued a what we heard report in which they said that they summarized what they heard they acknowledged that there were criticism and they said we'll create a new panel to take a look at some of these issues now i should note that i launched an access to information request that said hey i think if you launch a public consultation you ought to be make you ought to make the submissions that you receive publicly available now i got those submissions about a month ago and it turned out that the government's report didn't tell the whole story you had companies like twitter compare some of the policies to internet policies in china and north korea you had groups ranging from muslims groups and jewish groups and other vulnerable groups all saying that the kinds of risks that this put forward were significant in and of themselves in other words the legislative proposals that were were designed to help support and protect groups actually were creating potential harms and the reason for that is that the government envisioned things like proactive monitoring requiring platforms to proactively monitor chat and activities on these sites and if they identified content that they thought violated some of the laws to proactively disclose that to law enforcement think about the possibility that you post something without context in a chat and an a i sees this and for whatever reason thinks this represents a threat and notifies the police as part of it the government thought that was a good idea the government thought that requiring platforms to remove content within 24 hours without any due process or review was a good idea the government thought that website blocking for those platforms that wouldn't block that kind of content was a good idea let's conscript all the various telecom providers to build in blocking technologies and then require them to block these sites that's why you saw so many speak out against it so let me just conclude by saying there is a lot happening there has been a major reversal in the way that the government has approached these issues and i would say candidly and quite discouragingly that despite some of the voices that we've seen to date they for the most part have been largely ignored the government is marching ahead sometimes in my view engaging in just plain gaslighting in which they say that the legislation says one thing when anyone who takes the time to read what the legislation actually says realizes it's the opposite that said the time is now for these policies they're going to be hearings for example on c11 in the next few weeks there is an opportunity for concerned canadians to make their voices heard regardless of what your view happens to be we deserve policies that reflect the broad view of canadians and and is properly informed by those who are expert not just on some of the speech implications but on the technical side too there's an opportunity here and i hope many in this audience will grab it thanks very much for your attention