Appeared in the Toronto Star on August 15, 2005 as Why Broadband, Neutrality, Privacy Deserve Policy Boost
This year’s federal budget generated more than its fair share of attention. Between Belinda Stronach’s switch to the Liberal Party and the drama surrounding the late Chuck Cadman’s vote, a single paragraph in the budget that called for a review of Canada’s telecommunication regulatory framework was understandably overlooked.
Led by a trio of experts, that policy review completes its first phase today as all initial submissions are due by midnight. The final report is expected by year end.
The breadth of the review is staggering as the supporting consultation document poses more than 100 questions — ranging from the rules pertaining to traditional local phone service to the regulation of the Internet. While many telecommunications companies focus on the current regulatory environment, the critical public interest issue involves the Internet, which, led by Voice-over-IP telephony (VoIP), email, and instant messaging, plays an ever-increasing role in Canadian telecommunications.
Given the extensive range of Internet regulatory approaches worldwide, there is no consensus on how to approach the issue. As the panel examines the effectiveness of the current Telecommunications Act, it would do well to focus on three questions: (i) what key principles should form the core of Internet telecommunications policy? (ii) are those principles found in the current Act? and (iii) if so, are the principles effectively being implemented into law?
I believe that the answer to the first question rests with three principles: universal broadband access, network neutrality, and privacy. While high-speed Internet access (often referred to as broadband) is available in most urban areas in Canada, the majority of communities, particularly those on the outskirts of major cities as well as in rural areas, are still without broadband access.
The government must move to bridge this Canadian digital divide. Where cable and telephone providers are unwilling to offer commercial broadband services, federal, provincial and local governments should fill the void to ensure that all Canadians enjoy access to e-commerce, distance education opportunities, tele-health, and e-government services.
Second, the government should establish a legislative principle of network neutrality that prohibits Internet service providers from blocking content or placing competing services at a disadvantage. This need has become increasingly evident. Just last month Telus, locked in a contentious labour dispute with its union, briefly blocked access to a website that offered support to the union. In the process, Canada’s second largest telecommunications company blocked access for its more than one million customers as well as customers from other ISPs that rely on Telus connectivity. Moreover, a University of Toronto study found that an additional 766 sites that shared the same IP address were blocked in the process.
Similar concerns have arisen within the context of Internet telephony. Third party providers fear that the established telephone and cable companies will use their advantageous positions to favour their own services to the detriment of competing, low cost services. Such conduct has already occurred in the U.S., however, the Canadian Radio-television and Telecommunications Commission disappointingly declined to prohibit the practice in its May VoIP decision.
Third, Canada’s telecommunications framework must fully protect Internet privacy. As Justice LeBel of the Canadian Supreme Court warned last summer, “monitoring of an individual’s surfing and downloading activities…tend to reveal core biographical information about a person.” The sensitive nature of Internet usage data places ISPs in a particularly critical position as the guardians of that information.
It is essential that Canadian law ensure that subscriber information is only disclosed under court order with the privacy interests of the individual fully considered and protected. Moreover, strong Internet privacy protections will be needed in the face of Ottawa’s lawful access plans, which will reportedly require ISPs to implement new network interception and surveillance capabilities.
The Telecommunications Act was not drafted with the Internet in mind, however, its stated objectives are broad enough to cover universal broadband access, network neutrality, and Internet privacy. Section 7 of the Act identifies nine objectives. These include “reliable and affordable telecommunications services of high quality accessible to Canadians in both urban and rural areas in all regions of Canada”, response to “economic and social requirements of users of telecommunications services”, and contribution to “protection of the privacy of persons.”
Although the telecommunications framework can accommodate Internet issues, significant reforms are still needed to implement these issues into Canadian law. A new policy framework could be established to facilitate universal access to broadband much like policies of an earlier era ensured comprehensive local phone service. Similarly, the Act’s privacy provisions require updating since they focus on traditional phone services.
The network neutrality issue recently caught the attention of the Federal Communications Commission, the CRTC’s U.S. counterpart, which established the principle earlier this month. Canada would do well to follow the U.S. lead by acknowledging that the Act’s current provisions on this issue are insufficient.
Canada has long prided itself in being a telecommunications leader. That leadership position is being challenged, however, as other countries, recognizing the importance of the Internet, introduce supportive new policies. The Canadian telecommunications policy review may have gone unnoticed, but its recommendations will have a major impact on Canadians access to knowledge, education, and communication for years to come.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at firstname.lastname@example.org or online at www.michaelgeist.ca.