The Canadian Bitcoiners Podcast - Bitcoin News With a Canadian Spin - The CBP - Dr. Michael Geist - Bill S210, Online News Act, Online Streaming Act, and What's Next in Canadian Digital Law

Episode Date: July 25, 2024

FRIENDS AND ENEMIES Join us for some QUALITY Bitcoin and economics talk, with a Canadian focus, every Monday at 7 PM EST. This week we're joined by University of Ottawa Professor and host of the Law Bytes podcast Michael Geist. We discuss the latest in Canadian digital legislation, including some of the most controversial acts of the past few years, the hotly debated Bill S210, and what Canadians should be concerned about as far as the digital landscape. From a couple of Canucks who like to talk about how Bitcoin will impact Canada. As always, none of the info is financial advice. Website: ⁠www.CanadianBitcoiners.com ⁠Discord: https://discord.com/invite/YgPJVbGCZX A part of the CBP Media Network: ⁠www.twitter.com/CBPMediaNetwork This show is sponsored by: easyDNS - ⁠⁠https://easydns.com/⁠⁠ EasyDNS is the best spot for Anycast DNS, domain name registrations, web and email services. They are fast, reliable and privacy focused. You can even pay for your services with Bitcoin! Apply coupon code 'CBPMEDIA' for 50% off initial purchase Bull Bitcoin - ⁠⁠https://mission.bullbitcoin.com/cbp⁠⁠ The CBP recommends Bull Bitcoin for all your BTC needs. There's never been a quicker, simpler, way to acquire Bitcoin. Use the link above for $20 bones, and take advantage of all Bull Bitcoin has to offer

Friends and enemies, welcome back. You were just here last night. You're here again tonight. Just me, for now, at least from the CBP crowd. Very special guest tonight, Dr. Michael Geist. We're going to get into a lot of discussion about what I think, to content creators for sure, content consumers for sure. But I think also just one of the broader topics we talk about on CBP is this idea that the clamps always seem to be going one direction when it comes to your rights and freedoms your privacy um and you know the expectation that you're sort of a free you know incentivized actor in all of this um is being eroded i think and you know len and i talk about it often and we're happy to have dr geist on to give his opinions uh on a number of these things first of course the sponsors easy dns mark and the team over

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Without any further ado, Dr. Michael Geist, law professor at the University of Ottawa, where he holds the Canada Research Chair in Internet and E-commerce Law and is a member of the Center for Law, Technology, and Society, host of the Law Bites podcast, which is where I found you, sir, many moons ago. I want to welcome you to the show.

Thank you for coming. How are you? I'm doing well. It's a pleasure. Nice to be here. I'm glad we finally set this up. You and I, although we may not share the same views on monetary sovereignty as one another, I think we share a lot of the same concerns about what's going on as far as, like I mentioned in the intro

there, the clamps. Maybe before we get started, give me a bit of background about yourself. Who is Michael Geist? How did you get to this sort of content creation space? And I noticed that when you're doing your podcast, I think you're unrelenting in the message you're sharing and the views that you have are far from watered down. How did you make it to that point? It's not something I often see from, you know, I don't know if it's fair to call you an academic, but oftentimes in academia, you see the opposite people who are afraid to kind of take these hard stances. How did you get to where you are? Well, I hope it's fair to call me an academic because I've been a law professor for more than 25 years and at the university of Ottawa and spent some time at

other schools before that. So I've been an academic for a very long time. And sometimes people ask, what do you do? And that's certainly my day job. I hold the Canada Research Chair in Internet and E-commerce Law. So I've been very, very fortunate to have that chair now for quite a while, which has, in a sense, almost, I think, freed me up to become engaged, not just in research, although that's, of course, an important part. But, you know, I think adopt an approach where I believe that, you know, of course, it's important

to write academic papers and books and stuff like that. And that's certainly part of what I do. But beyond that, I've always felt that the most value that I can provide is to try to take the work that I do and what I know and bring it to a broader audience. And so I've been doing that for a long time on the blog and in social media. And for the last, I guess, four or five years now through a podcast, often appearing before committee hearings, government. So I wear a lot of different hats from a policy realm. You're right. I get probably more engaged in policy related issues and trying to speak my mind and in a sense, trying to educate both the public to become engaged and, and politicians and policymakers

in some of the decisions they make more involved than some. But, but I think in some ways I've got a, I've been privileged to have the platform that I've had and the opportunity to speak out. And you know, I want to try to speak to as wide an audience as I can on some of these issues, because I think these issues really affect us all. Let me ask you, do they drag you into those meetings and hearings or do you knock on their door? What's the usual? That's a good question. The usual, to be honest, is I get asked.

So I've been fortunate that when people think about digital policy, internet-related issues, my name comes to mind. And so oftentimes I get asked. There have been the rare occasions, and we might talk about one of those bills where I have actually asked to put my name on a list. There's a process that exists within committees where MPs from the different parties, members of parliament from the different parties

can nominate names to appear as witnesses. I, you know, without, usually I have a sense because I tend to be pretty out there and trying to break down legislation, make it accessible, speak out on it, appear in the media and do those kinds of things that oftentimes there'll be someone from some party that will say, Hey, this is a good guy that we should hear from. But just in case, at least on some bills, on S210, for example, a bill we might talk about, that's a bill that as the process started to move forward, I had been asked to appear before the Senate, and I did. But once it got to the House, I became concerned that it wasn't clear what these hearings were going to look like. And so I asked to appear, although it turned out they really didn't want to hear from pretty much anyone as it broke down. We can get into going to look like. And so I asked to appear, although it turned out they really didn't want to hear from pretty much anyone

as it broke down. We can get into that if you like. I would love to. We can start there, actually. So I'll note that on your podcast, Law Bites, you had the, I suppose the term is private member, but a senator who is the original sponsor, creator, author, sort of pick your descriptor there, of Bill S-210,

which is a bill that seeks to protect, is the original sponsor, creator, author, sort of pick your descriptor there, of Bill S-210, which is a bill that seeks to protect, I'm going to use her words, seeks to protect children from explicit content on the internet. I think that's a fair characterization. Another characterization I think is fair is KG. And I would use that to describe her appearance on your podcast, Senator, the Honorable Julie Miville Duchesne. My French is not as good as it should be, even though I think I'm officially bilingual according to government standards. I want to talk a bit about that interview,

but maybe first, in your own words, Professor, what is this bill and why should the average Canadian be concerned about it? Sure. Happy to get to that. I will, just to make sure that we get into it, I will give Senator Mandeville-Dejean credit, I thought. Of course.

Not everyone is willing to come on and talk about and defend legislation that way. She was. And I thought it was a pretty engaging discussion. I think people who listen to it will come away with certainly the concerns that I have, and they can judge for themselves whether or not she was able to respond effectively to them or not. The legislation itself dates back a number of years now, and we see similar kind of legislation in a number of different places.

And at its heart, the concern is kids accessing porn online. I mean, that's really what it's about. And so Maville Duchesne, who put forward one bill, it didn't move forward with an election. She brought back this bill, thinks she has a solution. And the solution is to essentially require sites to engage in some sort of age assurance or age verification. And if they fail to do so, to ensure that it's only people 18 or over that access content, sexually explicit content, then they can face penalties for having failed to do so. There can be, we can move to website blocking if the, if sites refuse to comply with some of this

stuff. And, you know, it seems to me, and we can get into it, that the legislation, while it may identify a real issue, I think many would say, sure, I don't want my kids to be able to access certain kinds of content. And so, and I'm happy if there are some limitations that are put into place. The legislation creates, I think, far more problems than it solves. As it's overbroad, there aren't really thresholds, so it applies to far more than just porn hubs of the world, so to speak. There is this website blocking, which is problematic. And then the technologies themselves, I think at this stage, simply aren't ready in the way that the government, or at least Maville Deschain envisions, actually not the government, the government opposes the legislation,

but the way that Maville Deschain and those who have supported this legislation think it would. Who is asking for a tool of this nature? Maybe it's the best place to start. I know you mentioned there that this current government, liberal government, has reservations about it. I've heard the prime minister discuss that it's an issue of balance. I think that's fair. The conservative government, I think, I don't want to say they're pearl clutching. I think it's a very political issue on both sides. And on the right, it just happens to be an issue that is a more firm, you know, able to be more firmly answered and responded to. Who is asking for this legislation

though? And the reason I ask this is because when I think about private members bills, not often do you see the amount of publicity traction and so far success in these sorts of, um, in these sorts of proposals. So how did, how did this thing get all this juice behind it? Professor, I really don't know. What do you make of all that? Sure. Well, there's a few questions in there. So let me kind of break it down a little bit. I would, you know, you asked certainly who wants this and there are groups that want it. You know, the social conservatives certainly appear to be highly supportive of this. There are other child protection groups and the like that, you know, have taken issue with pornography for a long time and so then take issue with certainly children accessing pornography right now. So, so there's certainly some groups that are, that are supportive of this. And Senator Maville Deshane often will try to bring to the fore research or studies that tries to demonstrate some of the harms when kids access this kind of content. So, you know, she, she has her, her studies and the like.

And, and I think even for the average person that's not engaged in this, So, you know, she, she has her, her studies and the like, and, and I think even for the average person that's not engaged in this, they, you know, if I say, if presented with the issue, they would say, sure, I don't want my 10 year old being able to access this stuff either. And so, you know, they're looking for some sort of, of solution to this. That's a somewhat different question for how is it that a private member's bill by a senator has gotten almost basically to the cusp of being enacted into law. We haven't said so, but this legislation started in the Senate. That's why it starts with an S. For those that don't follow the permutations of bills, bills that start in the Senate start with an S.

Bills that start in the House of Commons start with a C. This is S-210, so it started in the Senate start with an S, bill to start in the House of Commons start with a C. This is S210, so it started in the Senate. It's got a pretty high number because it's put forward by a private member, by individual senator. And I think in some ways it's gone and it got through the Senate in part because nobody wanted to be seen to be opposing legislation trying to limit children's access to pornography. It's just not a comfortable position to take because, of course, you run the risk of someone saying, you know, you're in favor of this. And that's not necessarily the case, of course,

but that's the risk. And so I think many senators stood aside. Frankly, many entities, companies, groups that might have otherwise wanted to become engaged in this did not, in part because they didn't take it very seriously. In fact, S210 is actually the second bill, I think I mentioned she put forward, there was an S203 before that. And for a time, the committee that was studying this at the Senate had a hard time getting

witnesses. There were just a lot of people that said, ah, this is just not going to become law. I don't want to have to defend either opposing this or getting involved. And so they just kind of stood back and in some ways just let it happen. In fact, I was asked, do you get asked or do you ask? And in this instance, I was asked and in the first instance, at first I declined. I was like, oh, I'm busy. I haven't studied the bill. It wasn't just something that I myself wants to again involved with. As it became more apparent that this had more of a chance than we might have otherwise thought, I said, okay. And so I did appear. But I think it got through the Senate largely on the basis that there just weren't a lot of senators that wanted to say no to it.

The House is a bit of a different story, though, because the positions of the political parties in the House of Commons are a bit counterintuitive to where we might often think. It's certainly been the Conservative Party, especially under the current leader, Pierre Polyev, that's been the most outspoken, I think, around things like internet freedoms and internet censorship related issues. And we may get to that with some of the other bills. But in this instance, they're going totally off brand when it comes to S210 because the bill was brought to the House or sponsored in the House by a conservative MP a conservatives that were by far the most vocal in favor of this legislation. When it was at committee,

they have support on this from the NDP as well as from the block. I think less because of the pornography issues and more just because they tend to favor regulating what they view as the internet or regulating tech companies. And so they kind of see that as a part with that and then the liberals who as i'm sure we'll get to have been the ones that have been the most active when it comes to internet regulation are in this instance by and large opposed there were a handful of of mps that voted in favor of it at second reading to send it to committee but all the cabinet ministers and the government in whole is pretty clearly against it.

They've called it fundamentally flawed. So it's pretty odd at a minimum to sort of see how this is broken down. It's not the way we typically would have expected. That's for sure. I'm going to ask a question that people will for sure accuse me of straying from my lane, but you know, I'm a mid thirties Canadian. I can see how more is in terms of what's commonly accepted sexual behavior has changed in the last 10 or 15 years. I have no opinion on it as far as this show goes.

I think there's, you know, if I look at things like the Pride Parade, for example, in my head, I can imagine a conservative government characterizing that as explicit content and so it needs to be regulated in a way. I think that's part of the reason that you may see stuff like that supported, as you mentioned there, sort of counterintuitively by either side. I don't know if you agree with that. I won't ask because it's a difficult question to get into. What I do want to ask, though, is about the nature of the tooling required. Now you mentioned there, you just didn't think the technology was sufficiently advanced to take care of something

like age verification. I agree with you. I think that's sort of commonly understood. Like you mentioned, if you ask the lay Canadian, yes, they would like to see a 10-year-old have less access to pornography online, but they would also understand that the tech to make sure that isn't quite ready. I mean, everyone kind of plays around with chat GPT and these AI imagery tools. You can see that it's not there. Are you concerned? And I guess maybe if you could speak a little bit for your profession, I'm not sure if that's something that you're willing to do, that as we move into the sort of almost fully digital age that the technology required to stay ahead of legislation like this to stay ahead of uh you know i'll call it i'll call it control professor geist that and you don't have to but i think i

will call it that uh over the sort of online experience that Canadians have. Is this something we all should be a little concerned about as the government of the day, either stripe, seems to be more and more willing to legislate heavy-handedly? Or am I worried about nothing there? No, okay. I mean, it's an interesting question or questions because I think there's, again, a few there. I'll start at the end by saying, I think there is reason for concern about government regulation. Not because I oppose regulation, I oftentimes support regulation. I think the notion

that this is just a wild west and that no rules ought to apply, I think might have flown two decades ago, but doesn't now. I think some of the harms are real. And I think there is at times going to be appropriate and a need for appropriate regulation. I think the problem that we've seen, you know, I I'm, I'm somewhat hesitant to suggest that this is born out of a desire to control. I don't really think it is. Uh, I think it is born more out of just very poor understanding, sometimes of the technology, sometimes of the markets, and sometimes of a read of what is viewed as the potential for a political dynamic and political gain that I guess parties may think

that there's an opportunity there to fundraise or to garner support by taking a position and putting themselves in opposition to tech companies or certain kinds of tech and things like that. And I think that's where things get risky because I do think there is a need for regulation, but there's a need for smart regulation. And I think there are things that we can definitely make a strong case for where there's appropriate regulation and that includes privacy, includes any competitive behavior, includes consumer protection on different issues, a bunch of things that I think we could and should be doing. But part of the problem has been that I think some of the things that we've seen come forward so far either is disconnected from where the tech is at.

Sometimes it's disconnected where the markets are at. Sometimes it's just highly influenced by external voices that may have struggled to adapt to a emerging environment or seeking to use regulation as a mechanism to try to so-called even the playing field or to try to give themselves a better position in the market, knowing that some of the more innovative players may be harmed by some of that. We see that, let's say, in C18 that we might get to. So I think that's part of the problem. In the case of S210 on this particular specific technology,

I'm certainly prepared to believe that we will at some point reach a time where the technology will be generally available that will address many of the kinds of concerns people have that may allow for some sort of age verification that really limits the privacy risks associated with it and simply is a allow someone to indicate that they have a particular attribute. Maybe it's their age, maybe it's where their geographic location, any number of different things. We might require entities to obtain that information before they allow for certain kinds of access. The problem here, though, is that where the technology appears to be at right now,

either it's technology that does raise privacy issues. So it requires, for example, uploading and making available government-issued IDs to third parties, which then really starts raising the issues of security breaches and how that information could potentially be misused. Or alternatively, it involves things like age estimation, where the idea is you're not going to actually provide any information about myself, but an AI effectively is going to take a look at me on the screen and guess at how old I am. And while the technology appears to be pretty good in distinguishing, let's say between a 25 year old and a 16 year old, the problem is that's not the use case, right? The use case is trying to distinguish between a 17 year old and an 18 year old. And, you know, anybody that walks into a

senior year in high school or CGEP or first year university is going to know full well that they aren't going to be able to tell the difference between those who are 17 and those who are 18. And so there's little reason to think that a computer is going to be able to do that any better. And so either we're setting up legislation that raises privacy issues or just doesn't work for the particular use case. And I don't think the answer is well you know nerd harder basically you know just work harder here tech people and come up with a solution um so the right solution is come up with legislation that reflects what technology can do not what we what some might wish it might be able to do yeah that's well put before we depart for uh c18 should note

that uh you sort of the average person you mentioned there, thinks about the porn hubs of the world when they think about online pornography. But the explicit nature of the content actually lends itself to other platforms. I've heard you talk about when you spoke to the senator, Google, Twitter, things of this nature, where if you're in a search engine or on a search engine platform like that, there's some percentage, again, the threshold for some of this legislation is unknown. And so will you have to age verify to use Google searches or Reddit or Twitter? Talk to me a bit about that, the concerns you have with that issue. Yeah, no, I'm glad you raised that. So I have three primary concerns with the legislation.

We just talked about the technology and the privacy implications. There's also website blocking, which to me explicitly suggests that lawful content may be blocked by internet providers. And both mandating that infrastructure is a problem and the fact that basically

we're acknowledging that this may lead to blocking of lawful content, people may have the right to be able to access is a problem. The other area, though, is that this does include Reddit because there's the not safe for work section. We know that this content pops up. It can be Twitter. It can be Google searches. In fact, it can go even further.

It raised during the one set of committee hearings, many of the government MPs tried to make the case that it might well cover things like Netflix and services like Crave where based on the definition something like Game of Thrones might well be captured by this and the conservative MP at the time said how can that be it's not as if people watching Game of Thrones on their television through say cable subscription we block access to 16 year olds to say they can't access. But that just fundamentally misunderstands the system in broadcast. And in a part, why the idea of taking that system and saying, oh, we're just going to apply it to the Internet and try to block just doesn't work. And so the concern is that it could apply there as well, which raises a whole set of issues.

So, you know, when the senator says, well, listen, there's other places that have enacted this legislation, that is true. There are some others that have either enacted or to try to, but in many instances, well, they're being challenged, but even beyond that, one of the things that they have, they will often have thresholds to say, this is what we are really interested in. We are really interested in, in a porno, into insights that are by and large dedicated to pornography. And so that's what, that's, that's what we're trying to deal with.

And of course, that's what gets promoted when they start talking about what they're trying, how they're trying to protect. It's those sites. The fact though, that this could be applied to a wide range of other sites, general purpose sites and services. It doesn't get a lot of emphasis

certainly from the government but that's simply the reality of where things are at and part of the reason why the legislation i think is as risky as it is it ain't right sir it ain't right let's move to uh bill c18 online news act this is you know this was um important to us as podcasters. I suspect it's important to you as a podcaster as well, a little bit at least, because, you know, I kind of don't like this terminology that gets tossed around. Again, you know, when you listen to MPs or senators or whoever it is, you know, there's also members of the media, obviously, who support this, and we'll talk about why. Throw around terms like fairness. You know, it's not fair to quality news what does fair mean what does quality news mean you know there's hardly ever a discussion from the legacy

media about you know the truly sort of mind-numbing amount of funding they get uh from the federal government and even the provincial government i don't think a lot of people realize that Ontario supports legacy media outfits as well. This is common in Canada in ways that it's not necessarily common the world over. Bill C-18 is this idea that, I mean, you'll speak to this more in depth, but we're going to force multinational corporations, the ones often that Canadians rely the most on for their news, Meta, Google, things of this nature, sort of because of the weird relationship between links and click-throughs, to take some of their Canadian revenue and prop up what I would say is a Canadian news media, legacy Canadian news media that's failed to adjust to the digital curve. I don't know if that's fair.

Tell me what you think about the Online News Act. Well, I've been critical of the Online News Act. I don't know that I'd frame it exactly that way because the truth is recipients, as it has shaken out, will include not just legacy players, but will include some of the entities that have sought to update them, to adapt and become digital first or digital only news publications.

That said, legislation's history and intent is quite clearly to try to provide support for the large legacy players. I mean, they're the ones that lobbied very heavily for it and were anxious to see the government intervene. It's part of a broader set of developments. You know, I don't think there's any doubt that some of the legacy players have struggled to adapt. And part of it, you know, we can go back.

It has to do more than just advertising. Go back to Craigslist and the loss of classified ads, the increasing amount of choice. So sort of a quasi-monopoly position that some news entities or organizations had in different communities has been lost, given the wide range of choice people have, where there's many more different choices people have for media. So a lot of things have been happening. I think it's fair to say that at least initially, the government was pretty reluctant to dive in with support for media, recognizing this raised real risks in terms of the independence of the media. And if media becomes dependent on government, whether through direct financial support or regulatory support that leads to financial

support, well, of course, that almost surely could have some implications for how things get covered, not, I think, by individual reporters who are just doing their job, but in terms of the direction that the publisher and the entity itself takes. So there are some risks there. The government initially tried to stay away from that. And it's kind of dipped its toe in the water with some funding through a grant program. It then expanded it significantly by providing tax credit for journalists. But each time these entities

came back saying, no, we want more, we want more. And eventually what they said is the more that we want or they want is money coming from large tech companies. And there's really just two. I mean, we can talk about, in theory, there might be others, but there was only two. It was really just Meta through Facebook and Instagram and Google. And the Canadian government ultimately was persuaded, I think with a lot of, both a lot of lobbying, a lot of recognition that it's helpful if you're looking to get reelected to have the Canadian media on your side, to try to do something. And so that something was put forward legislation modeled on similar legislation from Australia that basically said, we're going to force these tech companies and

the media companies to negotiate some, essentially some sort of licensing deal. We're going to force you to pay something. We're going to create a framework whereby you're going to have to reach some sort of an agreement. And if you are unable to reach an agreement, we're going to set up a final offer arbitration system where each side will just put forward its best offer. And a panel will ultimately choose to pick one or the, or the other. So government basically you're going to pay, whether you either can pay voluntarily through negotiation or you can pay through this arbitration system, but you're going to have to pay for something.

Now, of course you need a rationale or a reason for why you should pay. And part of the, I think, criticism of legislation and the concern is that part of what they landed on was saying, well, you link to the news. They would say, the way they would put it is they say you facilitate access to the news. And by facilitating access to the news, you benefit you being these large tech companies. And so you ought to pay. The reality, and this comes back to my point earlier about not really understanding the markets and how some of the tech works. The reality, of course, is that media was highly dependent on those referrals, on those

links. That service like Facebook, for example, was not copying, was not taking the news to begin with. It's users, often the publishers themselves that were posting links to their stories on Facebook in the hope of attracting attention and driving traffic back to the original source where they could get subscribers and generate additional advertising revenue. So it was clear that this was beneficial to the publishers. But what they tried to argue was that somehow Facebook should pay for the privilege of sending links back to the publishers. And Facebook's position throughout or Meta's position throughout was that if they were forced

to pay for links, they would simply stop linking to news. they just, um, there was just, it just didn't make any sort of financial sense for them. It created the risk of uncapped liability because they weren't the ones taking the content to begin with. It was other people posting it. So you never know how much you'd be liable for. So they said, listen, we're going to just stop linking. Uh, I think the government and many of the publishers didn't believe them. They thought that the social media companies just couldn't live without their news. And a year later, we're now a year as we record this, we're literally pretty much a full year since Facebook has been blocking news links in Canada and hasn't really had any negative impact as far as we can tell on them, but certainly has had a negative impact on many Canadian publishers. In that vein, do you think it's wise for the Canadian government to try and take on these

tech monoliths? We'll talk a bit about that in C11 as well. It's sort of a common thread, Professor, in the legislation that I'm most concerned about that the government seems to be, I don't know, again, that the word is hungry or combative or inherently oppositional to these big tech companies. You mentioned earlier, there's political points these days to be scored for that abrasiveness in that realm. Is it really wise though for them to be doing that from a legal perspective? Is there really a lot of precedent for these sort of you know monolithic truly truly leviathan-esque tech companies to concern themselves with the you know the frivolous nature of four-year governments in a country of

35 million people 40 million people yeah so so my answer may surprise because I will say, yes, I don't think we should shy away from regulating tech companies in the same way we shouldn't shy away from regulating any other sort of company where there are perceived harms or a need for regulation in the market. I don't think there's anything particularly special about big tech that it should be given a free pass. But I think that we need to have smart regulation and regulation that identifies where the real problems are and seeks to address them and understand that we are relatively small fish in a much bigger pond. And so some of the regulatory choices that we make

have consequences, which doesn't mean that you necessarily shy away from regulating, but it doesn't mean that you go in with your eyes open. Maybe the approach you take is one that's consistent with what's seen in some of the larger jurisdictions. And so it'll be a bit of an easier sell with some of the tech companies. Or if you're convinced that no, Canada, this is what we need in Canada, know that there are some risks there. And at a minimum, be open to talking to anyone who's going to be regulated to understand where their concerns are and see if you can't come up with something that that will address some of those kinds of concerns and you know i think the the problem with what we've seen is that the government has often often just been so anxious to put itself as the sort of the guardian of the opposition to big tech kind of thing to sort of

say, hey, there's a, there's a winner. And so, you know, we win no matter what, either we get this legislation or if we don't, we get to say that, hey, we stood up to big tech and this is, this is going to, we're going to be rewarded for that. And I think it's a miscalculation because I think there are real harms. And so in the case of C18, it's not, I would submit, that there's no role for government to try to provide support for media. My own view is that, in fact, there is a problem. And we do need a sustainable, viable media sector. And saying that we'll only leave that to the market, I'm not convinced is going

to work. And if you think that there is a public good here, there is a need to consider how do we support it. But I think you also have to recognize, even when you do that, that the choices that you make have consequences. And consequences of linking that, no pun intended, to news links has consequences, can lead to blocking, as we've seen. Adopting approaches where you're simply handing out huge sums of money through tax credit has implications for the independence of the media. And so there are, I think, solutions that you could adopt that frankly would keep some of the incentives that I think we want

to help see new innovation in this space, get new entrants and see them succeed where they can, while at the same time provide some amount of support. But, you know, those haven't proven popular so far with the government in part because that's not really what I think the large legacy players want. The large legacy players want handouts and the government wants the large legacy players to be happy. And so that's where we find ourselves, where we find ourselves.

Do you think Facebook meta is likely to reach the same sort of conclusion that Google did? I think Google, correct me if I'm wrong here, they reached basically an agreement where they're capped at about 200 million a year. Do I have that right? No, close. Well, not really close.

Okay. I know they reached some agreement. million a year do i have that right no uh close well not really close okay uh at least not at least not if at least not in my bank account maybe in some of them but uh but if you're off by 100 million that is to me that's a good that's a fair amount of money um so yeah so so the outcomes we kind of touched a little bit on but it but it's good to get into more specifically. In the case of the meta platform, so Facebook and Instagram, I guess threads potentially, they have no deal. They have said the way we will comply with the legislation is by not facilitating access to the news, and the way they do that is not linked to the news. There's been some rumblings that there are people that have attempted to circumvent that with screenshots

with aggregators that kind of rewrite stories that are not news entities and so aren't captured by may not be captured by the legislation we'll see the regulator the crtc may take a look at that but for the moment they are out and they're not paying anything. In a case of Google, Google, I think always took the position. Well, it took the two positions. Uh, one, they were not willing to pay for links either. Um, you know, their view was linking was core, of course, to a search engine. Um, and that the idea that if they establish a precedent of paying

for news links, that this would, this is like kind of bet the company sort of thing. And they were not willing to do that. At the same time, they were more than, I think, meta. They were, they did acknowledge that there was value to them in terms of being able to include news links within their larger search database. So the case of Facebook's position was, listen, there's just no value here. It's two to three percent of user feeds. We're downgrading the amount of news people see. And in any event, it's all highly substitutable. The people spend the same amount of time on the platform, whether they're looking at news links or pictures of friends or memes or whatever it happens to be.

And so the idea that we should pay for this content that just doesn't have a lot of value for us doesn't make sense to us. In the case of Google, though, Google is, well, yeah, there's value. To have a search engine that we think we want it to be as comprehensive as possible, if you don't have news, that's a real loss. So they did want to find a way to address that, but they didn't want to pay for links. And so this created both a willingness to negotiate on this legislation, but at the same time, not willing to pay just anything. And this is something that kind of came down. There was

months of discussions between the government and Google, ironic because the government had insisted when it put forward this legislation that it would not be negotiating anything. It said, no, we are just creating. The minister at the time was Pablo Rodriguez. He was like, I'm just setting the table. I'm just you guys. You guys are the ones doing the negotiating. and negotiating directly with Google on behalf of the media entities who, having seen what happened with Facebook, were of the view that they could simply not afford to have their news links blocked on search as well.

And so it was basically, you got to do something. And Google came up and they ultimately came up with a number. The number was 100 million. 100. That would, and so unlike the system that was supposed to be negotiated and all of this, it was like, if we cut it, the government literally wrote regulations designed specifically for the entity that happens to be the largest search engine that sells the most amount of digital advertising. I mean, it's literally what it says in the regulation. So they made this bespoke piece of regulation for Google that says, essentially, if you pay a hundred million dollars, you will be in compliance with the law.

You won't have to go to arbitration. And we will set up a system to, there will be a system set up for how this gets allocated amongst various entities. That is less, much less than the government had promised, or at least been sold. It's much less than the industry expected. And it is also worth noting that Google already had deals with many of these entities. And they, of course, are folding in those deals into the $100 million. So it's not $100 million of new money. It may be half that. And in fact, you also have to subtract the lost Facebook money because Facebook also had deals. Those are now just gone altogether, never mind the lost value of the link.

So legislation as a whole has been pretty disastrous i think um and the google money was an attempt to salvage something they are it's worth noting still trying to work out the specifics in terms of how that money will get allocated yes that was my my last question so there is no uh definitive uh total per outfit here in can. That's interesting. I mean, I'm not a big legacy media consumer. I mean, my age sort of gives that away. But I do find it interesting that most of my friends who are even more terminally online than I am, with a podcast talking about Bitcoin, all these things, doom scrolling basically for a living at this point. I didn't hear anything from

almost any of my friends, professor, about those block news links. That was the first indication to me that this was not going the way the government was portraying it was going. And then the Google deal, obviously the second piece of that pie. So I look forward to seeing how Meta and our leadership settle this. Bill C-11, the Online Streaming Act. This is to me, maybe the magnum opus of misunderstanding the nature of the environment in which you are operating for the federal government. This is another bill where the CRTC, I think, is being handed quite a bit of power. You can tell me if I'm right on that or wrong on that. In terms of what to do with online streamers,

prioritizing or deprioritizing promoting or not promoting, uh, and even defining Canadian content on places like YouTube, Spotify, other spots. Tell me a bit about this legislation, sir. Okay,

sure. So there's a lot to talk about, I suppose, but, uh, is it, is this your favorite one? I get the feeling listening to your show and reading your stuff. This might be your favorite one to talk about. Really? Um, Oh, that's a lot to talk about, I suppose, but, uh, Is this your favorite one? I get the feeling listening to your show and reading your stuff.

This might be your favorite one to talk about. Really? Um, oh, that's a good question. I don't know that I'm not, you know, it consumed probably the most amount of time cause it ran for the longest. Um, but C18 kind of became all consuming as well for about a year there. Anyway. Um, truth is actually copyright is probably the, my favorite thing.

And that's outside of all these things. But in any event, yeah. So we've had for many years, broadcasters and film and TV producers and some in the music industry who have been beneficiaries of a system that has had conventional broadcasters, broadcast distributors as well, where the cable and satellite companies that have often had to pay into different funds to help support the creation of Canadian content. And part of that was a bit of a quid pro quo. So for example, in the case of cable companies, they've benefited from something known as simultaneous substitution, which is when the same program airs in Canada

and the United States at the same time, the most infamous situation would be the Super Bowl, you see Canadian commercials. And so there's the ability to essentially block the US feed and have the Canadian feed appear on whatever channel happens to be, and all the channels that are broadcasting at both Canadian and U.S.

And that's worth that's been worth hundreds of millions of dollars. Right. So the fact that Canadians can only see Canadian commercials, even on the U.S. channels, has been innovation that's been around for decades and has been very, very lucrative for Canadian broadcasters. In fact, it's made U.S. programming the most valued programming. Right.

So you buy licenses made U.S. programming the most valued programming, right? So you buy licenses to U.S. programming, and then you can run Canadian ads on them, and you can block the U.S. feed so long as you ensure that this airs at the same time in Canada as it does in the United States. I realize that the world has changed, and a lot of people watch stuff on demand and stuff like that. But in any event, this was the, for a very long period of time. In any event, all of that benefit, you know, worth, as I say, hundreds of millions, you know, the government basically said, okay, we're doing this. We're doing a bunch of other things. Quid pro quo, you've got to pay a percentage of your revenues into support Canadian content. And so everybody, and so Canadian, let's say film and TV producers, even though the effect of the system was really to prioritize licensing U.S. content, they were still pretty happy with the system because it was driving new revenues to help

create stuff because these companies were generating revenues and then were paying into the fund. Now, of course, world has changed. People can watch streaming on demand. They don't have to be stuck to watch a program at nine o'clock just because it happens to air on that at nine o'clock. Most people would to air on that at nine o'clock. Most people would never know anymore when a particular program even does air. So that revenue is declining. And of course, you've got now very popular streaming services, the Netflix's, Craves and Disney's, Amazon Prime's of the world. And especially the foreign ones is where much of the focus was on. None of these were paying anything. Um, now you can make the case.

Why should they pay? They were not using spectrum in the way that the conventional players were playing. They were not beneficiaries of some of these other things, but nevertheless, they weren't paying. Uh, and so much like, you know, our earlier discussion on S210, where nobody wants to be seen to be opposing, you be opposing limiting kids' access to pornography. No one wants to be seen to be potentially hurting or not helping Canadian culture and Canadian content. Very few politicians want to be seen to take that position anyway.

And so this legislation starts life as a way to try to bring in these large streaming services into the conventional broadcasting regulatory framework. It basically says we regulate broadcasters, we regulate broadcast distributors, the cable and satellite companies. Now we will regulate also this third bucket will be these online undertakings, these large streaming services. Now they recognize they can't regulate them in precisely the same way. They're not going to require them, for example, to get licenses in the way that some of these other players are licensed simply to register instead.

But what they're really after, this is just a cash grab, what they really want is for them to pay. And I must say that when the legislation first came out, I was concerned with this. I thought that it was a weak foundation to make some of this case, but it was a bit of a lost cause, to be honest. I mean, it was just not. Nobody was coming.

Nobody was rallying around this as a big issue. And the government, along the way, essentially overplayed its hand. And the way it overplayed its hand was that when the legislation was first introduced, they said, this is about the web giants. It's about the big streaming services. And they specifically excluded user content. So they specifically excluded both the YouTubers or TikTokers or podcasters or whomever that would appear on these different user platforms, both as individuals, both saying, we're not going to regulate you. You're not a broadcaster. And we're not going to regulate the content that you create, the programs that you create.

Towards the very last minute in the House, the first consideration of this bill, when it was going through a process known as clause by clause, where they go literally clause by clause through the legislation, the government decides to pull back one of those exemptions. And so they say, we will continue not to regulate you as an entity, but we will have the power to regulate the content. Now that regulation is somewhat limited, they would say. And really what they had in mind was that they basically wanted to ensure that YouTube paid into the system. They were being lobbied to sort of say, hey, YouTube may be able to escape being regulated here. And so we want to ensure that they pay as well. But in doing so, they just scooped in a large number of other people who said, what do you mean you're going to get into this business of regulating me? Not necessarily to pay things, but potentially to regulate the algorithms that could have impact on their visibility and the like. That bill actually dies. They bring it back. They say that they fixed it, but it becomes

pretty clear pretty quickly that there are still some of those concerns. And so we went through about almost, it must be about a year of battles over this that felt like just one long period of gaslighting where anyone that would take the time to read the legislation would say, this is what it does. It's a concern. Can we fix it? And the government would say, well, that's not our intent. And it doesn't do that. And you say, well, read the bill. And they would say, no, that's not what we're trying to do. And it's like, well, okay, if that's not what you're trying to do, how about fixing it? And in fact, that bill went to the Senate and a couple of senators, including Maville Deschain, interestingly enough, she was a lead. Maville Desane and another senator paula simons were the

two leads to actually propose a fix and they came up with legislation that the senate passed and says okay we're going to fix this and we're going to exempt user content in this way and and scope in exactly what the government had in mind and scope out all these other users and then the government just rejects it when it goes back to the House. And so it becomes part of the legislation. The legislation passes. The government directs the CRTC to exclude user content. So after all of this, they then provide a policy direction and say, hey, CRTC, we don't want you regulating all of this. But what you're left with, this has been a very long answer, is still a bit of a mess, both in terms of the way the legislation was created, but also in how it has played out at the CRTC, where the CRTC has been charged with figuring out a lot of the of concern about exactly what this legislation does, which has led, I'll conclude this long answer with political element, which has led the conservatives, Pierre Paul Lievre, to say that one of the things they will do if they are elected is to repeal C-11.

That's one thing that they've been pretty consistent on. I think there was a public hearing in which a couple of prominent YouTubers, Canadian YouTubers, were able to offer statements on this legislation. And I thought that it was sort of a mask-off moment for legislators here in Canada, that they not only didn't understand what they were doing, but those who maybe did have an understanding of the consequences of something like this, it's kind of the same thread as C18, Professor Geist, that the intention is anything but what's being stated. The intention to me consistently seems to be we need to promote legacy media at the cost of other people who have done their job in terms of becoming more successful, more agile, et cetera, et cetera. I guess I'll ask you two questions. One, what is the, you know, in your peer group, the thought about that claim that the Canadian government is basically playing

weekend at Bernie's with the zombie media companies. They're paying the newsroom staff. Whether that affects or doesn't affect the individual reporters, I don't know. You're right about that. They're sort of paying the newsroom staff. They're keeping competition out of the ring entirely. And I would argue, not only does that mean that Canadian newsrooms don't have to evolve, it means they'll continue to refuse to,

as long as they can keep playing this card. That's number one. And then number two, the other question, what does this... As a creator, I listen to your show with, I think, more frequently than almost any other show. I mean, you put out a show once a week. I think I listen almost every week. You say some things that I would say are unpopular with the government. I say some things that are certainly unpopular with the government, things about inflation data being cooked and taxes being improperly distributed, things of this nature. To me, I don't want any government agency being able to say what I can and can't express, especially stuff that's backed by data, much like yours is backed by previous opinion and whatnot, under the guise of, well, this is not content that's Canadian enough.

One thing you didn't mention there is this idea of Canadian content is sort of this archaic point system where people are getting points for certain things, not for other things. And I think there's, you know, some level or threshold at which you have to fill out paperwork to determine whether or not you're creating content. I don't have time for that. I don't know if you have time for that. I doubt it. But what am I to make of all these things? Help me unpack that.

Yeah, no, there's a lot there. That was a really good question. So I guess I would start by saying in terms of to circle back just to the CRTC hearing, I also appeared before them. You know, I thought, well, I can't say I was surprised by it, but that appearance, I got a fair amount of pushback from some of my comments and, you know, for the benefit of your listeners, my comments focused on saying that at the end of the day, it seems to me the CRTC is number one objective ought to be serving the public interest. And that surely must include the viewers and users. It can't just be about, you know, culture groups and, and sort of the large stakeholders that they've conventionally

thought of. And I got a lot of pushback from some of the, or at least one of the commissioners who just doesn't see their role that way. Just does not see it as a public interest role, I don't think. Sees it instead as, no, they're an arbiter amongst stakeholders and the public kind of need not apply. And to me, the real tell or the mask off moment isn't the hearing, it's the decision. So you're right. We had some YouTubers appear. I appeared, a bunch of other people put forward stuff, read the decision. None of us get mentioned. Only the conventional stakeholders get mentioned. And to me, that's the mask off moment that even though the CRTC will say as invariably, we want to hear from the public. In fact, I know that they went out of their way to ensure that some of those YouTubers could appear.

But at the end of the day, you look at the decision, the decision doesn't seem to include any of those perspectives, which to me suggests that we've got a regulator that I think is in need of fixing at a minimum. I also think we have a government in terms of its digital policy that's in need of fixing. And I think we've highlighted this already a couple of times, but it's worth reiterating. I think that it's been too driven by politics rather than actually just good policy. And that may sound just hopelessly naive. Of course, governments are going to be driven by politics. But to me, many of these issues really ought not to be partisan

political issues. I mean, they just, it's just, it's not, it's just issues that we should be able to arrive at, at well thought out good policy that recognizes that there are risks of tilting the regulatory balance in favor of legacy players or otherwise, there's a danger of being captured in effect by some of those players and that there ought to be a real effort to try to avoid that. And I think we've run into some real problems on that, which I think highlights where, where much, where, where, where we've gone with it. I, I will say that, you know, I certainly hear some of the concerns about the risks that government can

regulate what people ultimately do get to say um i don't think we're there to be honest and i and i must admit i i actually don't think that that's in terms of the legislation that we're dealing with i don't think that's what the government's intent is can i put kai bush back on that for a sec because if i if i think about someone who does podcasting for a living i'm not there yet though we do collect a check from advertisers and it does make a difference in my day-to-day life what is the pragmatic difference between someone telling me what i can't say and someone pushing me to the bottom of the algorithm there is no pragmatic difference is there well first of all it's not clear that you necessarily get do get pushed to the bottom of the algorithm the government

would say that that's not actually what's going to happen. I think it's a mistake to get into the algorithmic game. They would say that that's not what they are doing. I think that there are risks that we ultimately do end up in that place. Although, to be fair, the government has said, this is not what we wanted. We don't want to try to do that. Personally, I think that they could have alleviated a lot of concern

by putting that in the legislation rather than by putting that in a policy direction. And I think there are risks there. And so I don't think we've seen that play out yet. And I must admit, I don't think that that's what we will see play out, at least not, you know, for the foreseeable future. It's certainly not from,

conservatives are not interested in that. And I don't really think the liberals are either. But that said, I think that some of the things that they do have in mind are in my mind just as bad or are highly problematic. And so while everyone is running around screaming censorship, oftentimes when censorship isn't there, although there are real risks of censorship in something like S210 or in C63, which we haven't got to, but dealing with online harms, that's where there is a risk of blocking or removing content. That's when you do get into censorship. These other bills, by and large, are not about censorship. But if you have a loss of the independence of the press, if you have regulators that tilt sort of the cultural dynamic and the landscape and what it means to be able to enter into the space and pursue a career, whether as a podcaster, as a YouTuber, or find audiences and

be able to find audiences, not just domestically, but globally. To me, those are so all critically important too. And those are being put at risk by some of our, by some of our things. Now, maybe it doesn't get people as riled up as, as, you know, the C word in this case, this, you know, calling this stuff censorship, but, but it does seem to me that there's a lot of reasons for people to have concern about what the government has been doing on this legislation. And that's why I keep speaking out on it. I'm not prepared to talk C63. I didn't do enough research of that, though.

I do know a bit about it. And you've been extremely generous with your time this evening. So I don't want to keep you too long. I would love to have you back to discuss that at some later date. In the meantime, maybe in a couple of minutes or a minute here, what should people be on the lookout for in terms of online? And, you know, you sort of specialize in online privacy, copyright legislation in your domain of expertise. What is it that the average Canadian really should be looking at and and taking a greater interest in the next year or so? Yeah, well, you know, and so we've been talking about it. So you've hit on three of the, of the big five, I guess right now.

So it's, there's just a lot. So anyway, um, and so I think there, there is certainly a need to focus on, on the bills that you did highlight in the case of S210, still not legislation. And so this will come back in late September or October to the House, and we'll see what happens. But I think that there's a real risk there it passes. In terms of C11 and C18, those bills have passed. And so where the attention now has to go is to the implementation side,

and that's all CRTC-related stuff. And that's much harder to follow for the average Canadian, much less have an impact on, which represents a real problem. The other two pieces of legislation though, that are in play right now that I think people do need to pay attention to. One is C63 online harms bill, which has some good pieces and some highly problematic pieces, but that's certainly something that will,

I think we will see sort of get increasing scrutiny and certainly source of discussion come the fall. And the other two, and you tweaked it by mentioning privacy related stuff is C-27, which is both a privacy and AI regulation bill. So it tries to both regulate AI and update Canada's privacy laws. Once again, there's elements of good and elements that are highly problematic there, but that is still at the house. And so in the case of both C27 and C63, there's still an opportunity to get educated, especially frankly this summer. Members of parliament are back home in your writings right now. They're probably at a barbecue as we speak

where they are happy to meet you. And so it's an opportunity to actually have your voice heard. Are you suggesting I engage with my MP at a barbecue sort of unsolicited on these topics, sir? Can I get that officially from you? Absolutely.

My MP meets, I think my MP actually has like literally weekly hours at a Tim Hortons. But yes, in fact, and you know, it's kind of like, really, this is something I should do. But you know what? Here's the thing. MPs don't get a lot of that kind of face-to-face interaction or they only do a K only in certain times of the year where they're able to get a lot of it. They want it, right?

I mean, they want, they're, they're in the business of trying to sell themselves and there's an election a little over a year away. So they're pretty happy to hear from people or at least happy to have that opportunity. They may not be like what people have to say, but that's part of the game. And to be honest, if they're not hearing from their constituents about these issues, then they come back to Ottawa in the fall and they say, well, you know, I spent two months back or three months of my riding and nobody said a word about this. So why should I be really concerned about it? And that,

that increases the risk that it just doesn't get the kind of political attention these issues deserve. Agreed. Sir, tell people where they can find out more about you, the podcast, the floor is all yours. Sure. So I'm online at michaelgeist. Sir, tell people where they can find out more about you, the podcast, the floor is all yours. Sure. So I'm online at michaelgeist.ca, M-I-C-H-A-E-L-G-E-I-S-T.ca. That's where you can find all the blogs that I do. You can find links to the podcast and Substack and all this sort of stuff like that. I have a Substack at MGeist or Michael Geist Subst sub stack i guess it is there's the law bites podcast it's available on whatever your preferred podcast platform happens to be and i'm on twitter or x uh at

mgeist i'm on blue sky and you know a bunch of these other mastodon i guess as well so um yeah so if you want it's not that hard to find what I've been saying, whether on social media or otherwise. Outstanding. Thank you again. Thanks everyone for listening and watching and we'll see you soon.