US firm runs mass copyright shakedown in Canada

When Canada’s new copyright rules went into effect in January, critics feared that someone would use them to run settlement extortion schemes of the sort that have long plagued the American legal system. Those fears have proved to be justified. This week, a second U.S. company has come into Canada, apparently using an automated process to blast thousands of settlement notices far and wide.

If you’re unfamiliar with the scheme, it works like this: under Canada’s new rules, a copyright owner who detects an unauthorized download can send a notice to the subscriber’s ISP, which is then obliged to notify the subscriber. The problem is that copyright owners can abuse the system by sending out notices that are actually threats, based on false information, and scare people into paying a settlement.

This has already happened once when a company called Rightscorp began making outlandish claims based on American law (for instance telling notice recipients that they faced $150,000 fines for downloading songs — even though the maximum fine in Canada is $5,000).

Now, a second group is trying its luck. This time, the culprit appears to be the porn industry working with an enforcement firm called CEG TEK. Lawyer Bram Abramson, who is counsel for a Canadian ISP, took to Twitter to flag what’s going on:

In other words, CEG TEK is using a bot to send out thousands of “notices” that are, in reality, shakedown letters. Recipients of such notices are typically invited to call a number where someone squeezes them to pay up what they can before something much worse happens to them (the enforcement agency and the copyright owner then divvy up the proceeds).

Law professor Michael Geist, who also reported on the story, observed that the latest notices aren’t as egregious as the previous Rightscorp batch. The CEG TEK notices at least claim to be based on Canadian law, even though they also misrepresent the damages at stake as well as other basic facts about the process.

But as Geist points out, they are still a gross abuse of the process, and also impose a financial burden on Canadian ISPs, who are obliged to process this flood of trumped up notices. Both Geist and Abramson recommend the Canadian government pass regulations to curb this sort of abuse, possibly by imposing a charge on those who send notices.

Some readers will point out that the letter recipients shouldn’t be infringing copyright in the first place, and they deserve what they get. The problem with this attitude, in my view, is that it encourages an abuse of the legal process (never a good thing), and undermines overall respect for copyright law. A better approach would be for copyright owners to follow the process in good faith, and save the big legal guns for repeat and flagrant offenders.

Police can search cell phones without warrant, Canada rules

Police in Canada don’t need a judge’s permission to search a suspect’s cell phone so long as they follow certain steps, the Supreme Court of Canada ruled on Thursday in a split decision that comes as a setback for privacy advocates.

The case concerned a jewelry heist in which police arrested two suspects and, upon searching one of their cell phones, discovered an incriminating text message and a photo of a handgun, which in turn became evidence to convict them.

The suspects argued that since the search took place without a warrant, it violated their constitutional rights against unreasonable search and seizure because cell phones contain such a deep trove of personal information.

But while the majority of the court acknowledged that cell phones are now akin to personal computers, the judges nonetheless concluded that the balance between privacy and security favored the police in this case. They ruled that a warrant was not necessary so long the judges limited the scope of their search, and so long as they took notes of what they were doing.

Three dissenting judges, however, blasted that reasoning and noted that cell phones are “quantitatively and qualitatively” different from other physical items, such as bags, that police have historically had a common law right to search at the time of arrest. The judges likened the cell phone to a house key, and pointed out that police can’t search a suspect’s house simply because they have the key in their pocket.

Overall, the case shows how courts everywhere are trying to recalibrate privacy rights at a time when most people are caring around phones that provide enormous amounts of information about their personal life.

The Canadian ruling is also significant because it splits from the ruling in a similar case heard by the U.S. Supreme Court this summer. In the case, the judges issued an unambiguous 9-0 ruling that police do have to get a warrant notwithstanding the inconvenience.

One bright spot for privacy advocates in the decision, as Canadian law professor Michael Geist noted, is that the court found that the presence of a password is immaterial when it came to determining whether or not privacy rights are at stake.

Overall, however, the case is a step back for privacy since it rejects a bright line rule such as the American one, and instead lets police search phones largely as they wish. While the Canadian court did impose new common law obligations for such searches, these steps are in reality only likely to create further legal confusion.

The ACTA Copyright Treaty and Why You Should Care

After years of secrecy, the eighth round of talks aimed at drafting an international treaty known as ACTA recently concluded and a version of the text was subsequently released to the public. But while some might believe it’s time to actively support ACTA, it’s not.