There is an apocryphal quotation attributed to GEN William Tecumseh Sherman that is instructive. When asked why he would not run for President, GEN Sherman reportedly said, “I will not entrust my good name to 100,000 people I have never met.”

So it is in public life. But in the digital constituency, you not only have to worry about the people you never met, you have to worry about the voters who don’t exist.

Industry Canada recently undertook good faith consultations with the Canadian public regarding potential new copyright legislation. The consultations lasted three months and included meetings in all major Canadian cities. In an effort to afford Canadian citizens an opportunity to be heard, the Minister of Industry, Tony Clement, opened the consultation to comments delivered solely online—and there’s the problem. As we are learning, opening the filtering hatch to the data smog of the Internet exposes you to all kinds of creepy crawly pollution from digital natives who can waylay the unwary explorer.

In that regard, Minister Clement might take some solace from GEN Sherman—the Minister has had his own good name tagged with the dirty little hands of the anti-copyright crowd during the recent Canadian consultations on a new copyright law. This is most prominently displayed in the controversy over the letter writing wizard created by the Canadian Coalition for Electronic Rights (a mod chip makers trade association) that allowed users to send a pre-fabricated letter to a predetermined but undisclosed list of ministers and Members of Parliament. The letter advocated a wide variety of anti-copyright—and especially anticircumvention—issues.

Some of you may recall that after stumbling upon the very well funded Michael Geist’s posting on Torrent Freak encouraging Torrent Freak readers to use the CCER wizard, I sent my own letter through the wizard, clearly identifying who I was and that I was testing the system to see if it could be gamed.

I did not expect to hear anything further from my test email as it was so obviously gamed. And yet I received the following over Minister Clement’s name:

“From: Minister.Industry@ic.gc.ca [mailto:Minister.Industry@ic.gc.ca]
Sent: Monday, November 09, 2009 3:32 PM
To: [My Email]
Subject: Copyright

Thank you for your e-mail regarding copyright. I appreciate being advised of your views and have noted your comments. [There were none of either.]

Like you, many people are concerned with copyright and its implications in our increasingly digital environment. The Government of Canada believes that Canadians themselves must be able to contribute if future legislation is to be a true reflection of Canada’s interests. For this reason, the Honourable James Moore, Minister of Canadian Heritage, and I have recently concluded nationwide consultations to solicit Canadians’ opinions on the important issue of copyright.

The consultations took place from July 20 to September 13, 2009, and were a step forward in fulfilling the government’s commitment to ensure a modern and responsive legislative framework. Our goal was to give Canadians from across the country a chance to express their views on how the government should approach the modernization of copyright laws.

Through these consultations, we have heard the views of a wide range of individuals and organizations. More information about these consultations, including access to transcripts of the roundtable and town hall discussions and to the submissions of participants, can be found at the Copyright Consultations website at http://www.blogger.com/www.copyrightconsultation.ca.

At this time, we are taking stock of the submissions made by Canadians [really? How do you know?] and the discussions that took place during the consultation period. With these in mind, the federal government will draft and table new legislation. Although the consultations have concluded, rest assured that your comments will be given due consideration as we move forward with copyright modernization.

Once again, thank you for writing and please accept my best wishes.

Yours sincerely,

Tony Clement”

I am certain that Minister Clement has no idea that his name was signed to this particular email—but someone—someone—at Industry Canada presumably knows or should know that they sent this email in their boss’s name in response to what was clearly labeled an attempt—albeit for the greater good—to game the process.

And that attempt to game the process clearly succeeded.

So riddle me this: If my email didn’t trip up the system at Industry Canada, what would it take exactly?

Naturally—the very well funded Michael Geist is in the middle of this controversy (largely a controversy of his own making). (Geist is the head of the US-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (the Alcan of IP).)

According to CBC: “Geist said Industry Canada was not posting hundreds of letters written by Canadians and submitted through the website of the Canadian Coalition for Electronic Rights, a group that is following the consultations. Individuals who modified the CCER’s form letter, or who wrote their own opinions and submitted them through the group’s website, simply had their names added to one letter representing the organization.

Not posting those modified and individual letters to the copyright consultation website is tantamount to altering the views of the authors, Geist said.

Some people who wrote individual letters did get their submissions posted after complaining to Industry Canada, but Geist said that was not a fair way to deal with the issue.”

In case you didn’t see my earlier post on this subject (“Canadians Slimed as Copyright Consultation Concludes“), this is the CCER form letter at issue:

“Dear Ministers,

As a consumer of digital media and electronics I stand to be greatly impacted by changes to the Canadian copyright regime. I am worried that this Government may wrongly adopt the American approach to digital copyright law as evidenced by prior draft bills including Bill C-61.
It is essential that Canadian copyright laws advance consumer and creator interests by not employing an all-encompassing prohibition on the development and manufacturing of circumvention devices and technologies, commercial trade of circumvention devices and technologies, the possession and/or utilization of any device or technology that can circumvent a TPM or DRM for a non-infringing purpose or otherwise lawful activity such as fair dealing, interoperability, time and format shifting.

The Copyright Act should be amended to bring the backup copy provision into the 21st century by expanding the right to make an archival backup copy to all digital consumer products regardless of format or media.
Amendments to the Copyright Act seeking to add provisions relating to the liability of Internet intermediaries and subscriber actions should take a “notice and notice” approach that will provide the best balance between the protection of intellectual property rights and the fundamental rights of individual and academic expression.

Amendments to the Copyright Act need to ensure that statutory damages are limited and users must be protected from statutory damages if the user has good-faith to believe their actions and use of the work in question was fair and non-infringing, or if the user is engaged in purely private and non-commercial activity.

The concept of technological neutrality is paramount when considering changes to Canada’s copyright regime that will withstand the test of time. The Government must not integrate protection for specific technologies or business models into any amendments to the Copyright Act (e.g. all-encompassing prohibition of circumvention devices and technologies). Any new legislation should be technologically-neutral to maintain flexibility into the future.

To further foster innovation, creativity, competition and investment in Canada and to position Canada as a leader in the global digital economy, it is important to expand and protect the doctrine of fair dealing. As fair dealing will undoubtedly provide any new legislation with the elasticity to adapt to future business models and new forms of creativity.

In order to direct and facilitate the digitization of Canadian heritage, a clear commitment needs to be made in order to preserve the current term of copyright. A pre-determined and generally accepted public domain date must be established for the good of all Canadians and the preservation of the heritage we so proudly maintain.

Finally, I strongly believe that as a member country actively engaged in the Anti-Counterfeiting Trade Agreement (ACTA) Canada should not allow this non-transparent trade agreement to override the democratic process and legal framework of the Canadian domestic Copyright Act. While supposedly designed to address counterfeit physical goods as well as Internet distribution and information technology, ACTA provisions may prove to over-ride any type of domestic copyright laws and negate the entire copyright reform process.

Fortunately, there remains time and opportunity for Canada to draft legislation to ensure that the rights, values and interests of all Canadians are reflected in a truly Canadian-to-the-core approach to copyright reform. I am encouraged by the public consultations on copyright that the Government is engaged in and I am confident that this will open up the development of Canadian copyright policy to more than just traditional lobby groups and the corporate interests that have directed policies in the past.

Sincerely,”

This is the letter that I wrote using the wizard:

Dear Ministers,

I just wanted to let you know that I am writing from the United States and if you receive this letter you will know that there is nothing whatsoever being done to block non-Canadians from using this letter-writing wizard from CCER.

Sincerely,
Chris Castle

I did have to list my address as “Los Angeles, Quebec” because there was a drop down box that limited my choices, but I did use my own zip code and clearly identified myself as writing from the US using my real name and email address.

The wizard told me:“Your Letter Has Been Successfully Sent

Your letter has been successfully emailed to Prime Minister Harper, Minister of Industry Tony Clement and Minister of Canadian Heritage James Moore regarding your concerns about copyright reform in Canada. CCER will also print and physically mail your letter to each of the recipients on your behalf.

Click here to return to the main page of the site”

So much for that.

Now one may well ask of CCER exactly what about their process made Geist so sure that “hundreds of letters written by Canadians” were getting through? Maybe it was because Geist was out beating the information superhighway on Torrent Freak and other sources of what commentators call the “copyhate” crowd to encourage the readers of Torrent Freak (overwhelmingly non-Canadian) to send “letters” through the CCER wizard?

I’m sure that if Geist is going to jump up and down and stamp his foot over the alleged failures of Minister Clement to post letters by Canadians, he must presumably have a very good idea of how to separate the letters written through the CCER wizard that were from Canadians and those that weren’t. I’d love to know what that process was, innovation being what it is and all. The highly innovative and very well funded Geist surely knows the answer.

But whatever the filtering process is, sacrament, it did not catch a letter from Los Angeles, Quebec ostie tabarnac décâlisser!

Minister Clement surely cannot be faulted for the failures of his staff to catch even the most obvious gaming of the CCER wizard. Like GEN Sherman, he must trust his good name to 100,000 people he’s never met. But some of them work for him, or at least he probably thought they did. That might be something to look into.

A little quick sampling of the posted letters suggests that a substantial number of them (perhaps over half) came from CCER. That might be something to look into, too.

For years now, there has been much sound and fury about the ghostly army of anonymous or pseudonymous anti-copyright, pro-mod chip, anti-music industry folks in Canada who pass themselves off as voters on Geist’s Facebook page. Canadian voters–supposedly.

The CCER letter writing wizard seems to be of very, very questionable provenance. Since the very well-funded Geist is all up in arms about it, even foisting accusations of “altering submissions” it seems like both he and those responsible at Industry Canada should come forward with a provable description of the CCER architecture that not only explains Geist’s assertions regarding “Canadians”, but also explains how letters from “Los Angeles, Quebec” got all the way through to Minister Clement. And puts the number of valid CCER letters “written by Canadians” in perspective.

This entire process is illustrative of the problems of the digital constituency that plague the online electorate, and is something to which careful attention must be paid.