New ‘dynamic’ site-blocking needs new safeguards: CIPPIC

The site-blocking order that will block a rolling list of pirate streaming sites during NHL games sought by a trio of hockey broadcasters requires new legal safeguards, given that at least some of the technology used to identify pirate streamers will be based on automated techniques, according to the Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic at the University of Ottawa (CIPPIC). In an application for leave to intervene filed with the federal court Monday, CIPPIC wrote that if granted leave to intervene in the case, it will argue that the blocking order sought by BCE Inc., Rogers Communications Inc., and Quebecor Inc. creates a blocking regime "without the need to present a court with an evidentiary basis establishing the infringing nature of a blocked IP address; and it obligates service providers to develop censorship capabilities that do not currently exist on their networks." "Each of these factors impacts the order’s proportionality and legality under the test for interim relief and website blocking injunctions adopted by this court and, if such order should issue, each factor requires distinct additional safeguards and transparency measures," CIPPIC wrote. The order sought by Bell, Rogers, and Quebecor would establish Canada's first-ever "dynamic" site-blocking order, which would require third-party internet service providers (ISPs) to block a rolling list of IP addresses in real-time, as they are identified by the broadcasters as broadcasting pirated National Hockey League games while those games are being broadcast throughout the NHL season. If passed, the order will require TekSavvy Solutions Inc., Distributel Communications Ltd., Cogeco Inc., and Bragg Communications Inc.‘s Eastlink to implement the new type of site-blocking. The technology needed to create a real-time rolling blocking list, CIPPIC continued in its application, is based at least in part on "automated assessment tools" and "can be fraught with problems and can lead to substantial false positives." "Before relying on a new automated forensic technique, the courts must apply a legal test ensuring the reliable foundation of the new technique being applied, as well as the adoption of robust transparency mechanisms." CIPPIC will also seek to argue that the safeguards put in place by the three broadcasters -- consisting of a notice to the blocked site -- are not enough to prevent the harms caused by the order, and will further ask the court to consider the implications for network management and competition under the Telecommunications Act. "Obligating innocent disseminators to develop comprehensive new tools and capabilities that do not currently exist and which transform the nature of their services in fundamental ways in order to aid in private rights enforcement is an extra ordinary remedy," CIPPIC wrote. In June, Bell, Rogers, and Quebecor sought an injunction against the unknown users of a set of IP addresses -- using foreign servers -- the companies say are being used to stream pirate NHL games via the sites livetotal.tv, usagoals.video, and an “unauthorized subscription service” called ComstarTV. A month later, the companies updated their request to include the new type of blocking order. The issue of site-blocking has been a contentious one, as one of the ISPs implicated in the dynamic blocking order is still fighting a previous blocking order -- Canada's first blocking order of any kind -- in a case known as GoldTV. After the order survived an appeal from the ISP in May, TekSavvy appealed the case further to the Supreme Court in August, arguing that a site-blocking regime crafted in the courts "risks displacing and overtaking Parliament’s carefully-crafted statutory regime for copyright remedies.” — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Jenna Cocullo at jcocullo@thewirereport.ca

New ‘dynamic’ site-blocking needs new safeguards: CIPPIC

Broadcast | September 22, 2021

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New ‘dynamic’ site-blocking needs new safeguards: CIPPIC

Broadcast | September 22, 2021

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