Appeared in the Toronto Star on July 3, 2006 as Bell Clause Creates Problems for Privacy
Canadian Internet users were abuzz last week with reports that Bell Sympatico, Canada’s largest Internet service provider, had opened the door to increased customer surveillance through changes to its user agreement. While Bell denied that the amendments were linked to the so-called "lawful access" initiative that may require ISPs to install new surveillance technologies, the furor associated with the story highlights Canadians mounting concern with their online privacy.
The Bell clause, which took effect on June 15th, advised subscribers that the company retains the right to "monitor or investigate content or your use of your service provider’s networks and to disclose any information necessary to satisfy any laws, regulations or other governmental request."
Few doubt that ISPs already monitor network usage and will disclose subscriber information, including usage habits, if required to do so under a court order. The new clause raised fears, however, that Bell was extending that scrutiny to the active monitoring of user content as well as escalating its willingness to disclose subscriber information without prior judicial oversight.
A widely circulated Canadian Press story (which featured several of my comments), noted that the Conservative government is expected to reintroduce lawful access legislation this fall and speculated that the change might have been in anticipation of that statutory reform. Many online pundits also chimed in, pointing to the battle over network neutrality in the United States, expressing fears that the Bell change might be designed to pave the way for a two-tier Internet in Canada under which ISPs levy fees on websites to deliver their content.
For its part, Bell swiftly issued a statement emphatically denying that the amendments were linked to lawful access, maintaining that the company had a "a long and established history of protecting the privacy of its customers."
Regardless of the motivations for the change – whether harmless drafting amendments, lawful access, or network neutrality – the public and media reaction demonstrates how increased Internet surveillance is a political and business minefield that invariably stirs up vociferous opposition.
From a political perspective, last week’s incident is only the latest example of significant public outcry when the lawful access proposals attract attention from the mainstream media. Over the past year, there have been a growing number of editorials cautioning against legislation that would increase Internet surveillance yet decrease judicial oversight.
Moreover, Canadian fears over intrusive surveillance may have been magnified by developments in the United States. In recent months, there have been a steady stream of reports of domestic spying, Internet surveillance, CIA tracking of banking records, as well as the establishment of a database tracking billions of phone calls created with the active cooperation of network providers.
Notwithstanding public sentiment against new surveillance, successive governments seem determined to revive the lawful access proposals. The Liberal government introduced a bill mandating new surveillance requirements late last year, and the Conservatives are expected to introduce similar legislation this fall.
If lawful access legislation reemerges, the fallout is likely to extend beyond the political arena to the network providers themselves. Five companies – Bell, Telus, Rogers, Shaw, and Videotron – presently dominate the Canadian high-speed residential Internet market. These companies regularly maintain their commitment to protect their customers’ privacy through accessible privacy policies, open communications with customers, and a willingness to resolve privacy disputes should they arise.
Yet that may not be enough. As Canadians react to the lawful access proposals, many will want to see network providers supporting their privacy interests. To date that has not occurred, since those same providers have been perceived to be more concerned with the financial costs associated with lawful access (the Ottawa rumour mill suggests that the Conservative government will commit tens of millions of dollars to the lawful access program to address those cost concerns).
The need for Canada’s network providers to stand behind their customers’ privacy interests extends beyond lawful access. With a review of Canada’s federal privacy legislation set for later this year, Canadians may also begin to ask why some network providers disclose subscriber information to law enforcement without a court order, relying instead on an exception found within the federal privacy law.
Internet use has become an integral part of daily life, serving as the foundation for daily communication, commerce, education, and entertainment for millions of Canadians. Internet service providers stand as the gatekeepers of the enormous amount of personal information that is a by-product of that activity. Experience suggests that Canadians want their ISPs not only to protect that data, but to actively support their privacy interests as well.
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 mgeist@uottawa.ca or online at www.michaelgeist.ca.
