While the net neutrality rules applied to all Internet providers, the CRTC was particularly concerned that the dominant incumbent providers would apply their throttling practices at the wholesale level, making it more difficult for independent ISPs, who rely on the incumbents to connect to residential customers, to differentiate their services. If independent ISPs were forced to provide throttled services, their competitive position would be undermined.

Just two years later, the CRTC finds itself facing a similar dilemma, this time involving the very data caps it once promoted. Some dominant incumbent providers want to apply data caps at the wholesale level, which would similarly make it difficult for independent ISPs to differentiate their services. The rules associated with wholesale data caps - better known as usage based billing or UBB - was the subject of another CRTC hearing last week.

While the arguments about network congestion from dominant providers such as Bell remained much the same, as the week wore on it appeared the commission was beginning to realize that congestion claims may be overstated and being used to mask fears of competition from the independent ISPs (the rebuttal phase of the hearing runs on Monday and Tuesday).

Bell argued that it faces serious network congestion issues and therefore needs regulatory rules that would require independent providers to pay by volume (ie. the amount of data consumed). This represents a modest shift away from its earlier usage based billing proposal, but still rests on shaky ground.

CRTC Chair Konrad von Finckenstein asked why if Bell faces network congestion, its sister company Bell Aliant has not implemented usage based billing. Bell argued that Bell Aliant "supported" the concept, but acknowledged that competitive forces and marketplace conditions in Atlantic Canada were such that it is currently not needed. In fact, Bell offers different data caps in Ontario and Quebec, also a function of marketplace competition. In other words, the same "congested" network features different data caps in three markets, responding to the competitive environment.

Further testimony made it clear that Bell's congestion concerns place it in the minority of Internet providers. Rogers told the commission there is no bandwidth crisis and that it works hard so there is no congestion. Telus indicated that it does not employ usage based billing for its wholesale customers, since its network investments have allowed it to manage congestion without the need for such measures. Shaw noted that it recently raised its speed and data caps so that it offers plans far larger than those available from Bell.

The CRTC commissioners appear to have recognized that proposals based on limiting the volume of Internet use are not only bad policy - discouraging Internet use benefits no one - but are ineffective in dealing with network congestion.  The reason is that the amount of data consumed has very little to do with whether the network is congested.

Consider a four-lane highway that can comfortably accommodate 24,000 vehicles per day. If the vehicles are spread evenly at 1,000 per hour throughout the day, there is no traffic congestion. But if 20,000 of the vehicles attempt to use the highway over a four-hour period, the highway becomes very congested during that time frame. The aggregate volume of traffic may be the same, yet the congestion implications are very different.

The same is true of networks, which can be used to capacity without congestion concerns. It is only when there is simultaneous demand - called peak periods - that there is the prospect of congestion and the need to augment the network. Pricing to peak periods is precisely what the independent ISPs have proposed, noting that volume pricing hurts their competitive flexibility and does little to address congestion.

After years of debate, that message may finally have resonated. In her questioning of Bell, CRTC Commissioner Candice Molnar said "we all, I think, can hopefully agree that there is no marginal cost to using the network when you are not causing augmentation." Bell agreed and it now falls to the CRTC to take that admission to heart by crafting rules focused on competition, not congestion.

Rogers Communications has been the target of nearly half of all cases opened in response to net neutrality complaints. In recent months, there have been multiple complaints arising from bandwidth throttling of World of Warcraft, a popular multi-player online game. Rogers initially denied any wrongdoing, only to later acknowledge that there was a problem. The company promised to address the issue, though no consequences arose and it was not forced to publicly disclose the issue.

In November 2010, Bell Canada was hit with a complaint over throttling download speeds from Hotfile.com, an online locker service that lets users store and access music and other files from any computer. Bell admitted its deep-packet inspection technology was mistakenly treating downloads from the site as peer-to-peer activity and slowing connection speeds. Bell promised a fix, but only after asserting that it was compliant with the guidelines.

There has been only one complaint that led to a clear change in provider policy. In January 2010, ExaTEL, an Ontario-based Internet phone company, filed a complaint against Barrett Xplore, a satellite Internet provider. ExaTEL alleged that Barrett Xplore was degrading Internet telephony traffic, creating an unfair advantage for its own phone service.

The CRTC ruled that there was no undue preference, but that the throttling of time sensitive traffic violated its guidelines. Faced with the prospect of changing its practices or seeking special approval from the CRTC, Barrett Xplore changed its throttling approach to ensure that Internet telephony was unaffected.

Barrett Xplore was also the source of the longest running complaint as the company took months to respond to CRTC requests to improve its disclosure practices. Only after the Commission threatened to launch a public proceeding into the matter did Barrett Xplore respond.

On occasion, the CRTC is itself the source of the problem.

In March 2010, a complaint was filed against Cogeco, a cable provider with a traffic shaping policy that continuously limited bandwidth for peer-to-peer applications on a 24/7 basis. Given the CRTC’s requirement that traffic management limits be linked to actual network congestion, the Cogeco policy raised red flags.  Even so, the CRTC demanded that the complainant provide more evidence before it would investigate.

In a December 2009 complaint against Bell over throttling access to the MediaMonkey.com website, the CRTC dismissed the complaint on the grounds the site did not appear in Bell’s list of affected sites.

Yet even when the CRTC pursues a complaint, there is little actual investigation. Most activity is limited to exchanging correspondence or prodding Internet providers to respond. This typically leads to revised disclosures, rather than real changes.

After more than 30 investigations in nearly two years, it is clear improvements are needed. At a minimum, the CRTC should be publishing all public complaints and resolutions so that the issues obtain a public airing. Moreover, the system needs penalties for violations as well as pro-active audits to ensure Internet providers are compliant with their obligations. Without change, the CRTC’s net neutrality rules offer little protection for Canadian Internet users.

The CRTC provided a response in advance of the publication of this column, noting that it is looking at ways to make complaint information public:

Our policy was praised for being fair and practical: allowing users to have as much freedom to explore the Internet while giving the ISP the flexibility to manage their networks to ensure that their customers receive an acceptable level of service.

As to the issue of making the complaints and relevant correspondence public, we are looking at ways to be more transparent while respecting the privacy rights of the complainants.
Under the current legislation, the Commission has limited tools to enforce its rules.

New tools, such as AMPs (administrative monetary penalties) allow the Commission to be more effective in its enforcement activities, as we have demonstrated in the case of DNCL (the Do Not Call List) and the significant penalties that were recently imposed.

Below is a full list of all complaints and resolutions obtained via Access to Information from the CRTC. It is complete as of early June 2011. Links are provided to original CRTC letters and responses from the parties.

ISP, Date, CRTC File Number	Complaint	Resolution
Shaw June 2011 CRTC #538009	Intercepting failed domain name requests and redirecting to company pages	Ongoing
Rogers May 2011 CRTC #534293	Degrading Skype, Net2Phone	Ongoing
Videotron May 2011 CRTC #528197	Calculation of bandwidth usage. Monthly usage not charged fairly.	Denied. No regulation of retail services. Referred to CCTS.
Bell Canada, TekSavvy May 2011 CRTC #526400	Throttling applications even when no network congestion.	Denied. Burden on the complainant to provide evidence. No evidence provided of specific apps or length of time affected.
Rogers May 2011 CRTC #529619	Throttling of peer-to-peer applications.	Denied. Rogers discloses this practice.
Shaw May 2011 CRTC #533015	Inability to see monthly Internet usage	Shaw deactivated feature when it dropped usage based billing.
Rogers April 2011 CRTC #517209	Throttling of World of Warcraft online game. Leads to regular disconnection.	Admits problem and promises to fix.
Rogers April 2011 CRTC #530230	Throttling of World of Warcraft online game. Leads to regular disconnection.	Admits problem and promises to fix.
Rogers March 2011 CRTC #522253	Throttling of World of Warcraft online game. Leads to regular disconnection.	Admits problem and promises to fix.
Rogers March 2011 CRTC #517209	Throttling of World of Warcraft online game. Leads to regular disconnection.	Admits problem and promises to fix.  “Problem is not due to a Rogers' policy but rather due to a software problem which we will fix as soon as possible”
Rogers March 2011 CRTC #529411	Advertising of Speed Boost inconsistent with World of Warcraft throttling.	Denied. Marketing outside of policy. No evidence of violation provided.
Telus March 2011 CRTC #527577	General throttling concerns.	Telus works with customer to address speed problems.
Bell March 2011 CRTC #529146	Limiting HTTP upload rates and limiting upload on port 55145.	Unknown
Rogers February 2011 CRTC #505052	Disclosure of throttling practices inadequate as effect of upload throttling not fully discussed	Agrees to amend disclosure page
Rogers February 2011 CRTC #511366	Disclosure of throttling practices inadequate as effect of upload throttling not fully discussed	Agrees to amend disclosure page
Rogers February 2011 CRTC #510987	Disclosure of throttling practices inadequate as effect of upload throttling not fully discussed	Agrees to amend disclosure page
Rogers February 2011 CRTC #503207	Disclosure of throttling practices inadequate as effect of upload throttling not fully discussed	Agrees to amend disclosure page
Rogers February 2011 CRTC #514192	Throttling renders service useless.	Denied. Company provides disclosure and no evidence of non-compliant policies.
Rogers February 2011 CRTC #513298	Throttling of World of Warcraft online game. Leads to regular disconnection.	Denied. Rogers says throttling practices have no effect on online gaming (later reverse)
Barrett Xplore February 2011 CRTC #512810	Traffic management dramatic effect on services.	Denied. No evidence of violation.
Uniserve January 2011 CRTC #510718	Traffic shaping hurts some applications. Flash video very slow.	Agrees to amend disclosure page.
Rogers December 2010 CRTC #505777	Rogers customer service providing conflicting information about throttling practices	Acknowledges incorrect information provided by one representative.
Bell November 2010 CRTC #504432	Throttling speeds for downloads from hotfile.com	Admits error. Deep packet inspection technology mistakenly treating downloads as peer-to-peer traffic.  Promises to fix, but denies any violation of CRTC rules.
Telco Quadro Communications October 2010 CRTC #502906	Change in traffic management practices.	Denied. Practices ruled consistent with net neutrality guidelines.
Wind Mobile September 2010 CRTC #494833	Port blocking restricts some uses and not properly disclosed.	CRTC says disclosure inadequate. Agrees to amend disclosure page.
Wind Mobile August 2010 CRTC #496185	Speed slowed after 5 GB of usage on all Internet traffic. Lack of disclosure on Fair Use Policy.	CRTC says slowing usage of any time sensitive traffic would be a violation of ITMP rules or require CRTC approval. Says disclosure inadequate.
Rogers August 2010 CRTC #496562	Claim throttling speeds on xBox usage	Rogers denies the claim.
Bruce Street Technologies July 2010 CRTC #496016	Throttling traffic without disclosure.	Admits throttling for brief period without disclosure. Subsequently dropped throttling practices.
Rogers July 2010 CRTC #494836	Problems with SIP (session initiation protocol) on Port 5060.	Admits problem but argues it is not a traffic management issue.
Bell July 2010 CRTC #496316	Traffic management policy overbroad	Denied.
Barrett Xplore June 2010 CRTC #494139	Bad service with slow speeds	Outside the scope of ITMP policy.
Cogeco March 2010 CRTC #482415	Traffic management policy involves throttling 24/7	Denied. CRTC asks complainant for more evidence of policy and harm.
Rogers March 2010 CRTC #486625	Throttling affecting corporate VPN connection	Rogers policy says it does not affect VPN. Contact Rogers. If unsatisfied and you have evidence of rule violation, provide evidence for further consideration.
Barrett Xplore January 2010 8646-C12-2008154000	ExaTEL complains Barrett Xplore throttling renders Internet telephony unusable, creating an unfair advantage for its own voice telephone service. Traffic management policies not fully disclosed.	CRTC rules not an undue preference since Barrett Xplore runs voice traffic on a separate circuit. Further rules that throttling violates rules for degrating time sensitive traffic and requires change to policy or application for CRTC approval. Barrett Xplore changes traffic management approach. CRTC also rules that dislosure insufficient. Barrett Xplore non-responsive until May 2011, when CRTC threatens to take the issue to a public proceeding.
Bell December 2009 CRTC #475593	Bell throttling access to MediaMonkey.com	Denied. CRTC says Bell's disclosure page does not reference site, so problem may lie with the site itself.
Shaw December 2009 CRTC #475351	Blocking Skype users from accessing BC numbers.	Require Shaw account information before proceeding.

First, rather than erecting barriers to new entrants with proposed fees, regulations, or investment restrictions, Canadian law would seek to create a level playing field that encourages more competition. This would mean recognizing that video can be distributed across many platforms from broadcast television to the Internet to software games, but that broadcast regulation is not needed where there is no scarcity.

While some argue for the regulation of services like Netflix, the reality is that there is nothing to stop any Canadian company from establishing a competing service. The best way to beat Netflix is in the marketplace, not a CRTC hearing room. Conventional broadcast may still require some regulation (spectrum is still relatively scarce), but new online competitors do not.

Moreover, encouraging greater competition means inviting new competitors into the marketplace. Canada maintains some of the most restrictive rules for foreign investment in the communications sector and this would change under a competition-focused broadcast policy.

Second, broadcasters and broadcast distributors should be forced to compete more aggressively for viewers and original Canadian content. In the current environment, cable and satellite companies package hundreds of channels together in a confusing manner that leaves consumers frustrated with ever-increasing bills, while broadcaster competition is largely limited to outbidding one another for Hollywood hits.

Injecting competition into this environment would include establishing a pick-and-pay option for consumers that would allow them to pay only for those channels they actually want and removing the simultaneous substitution policy that grants Canadian broadcasters the lucrative ability to substitute their feed (commercials included) over the same U.S. feed. Dropping simultaneous substitution, which has turned some Canadian private broadcasters into little more than U.S. affiliates, would force the broadcasters to compete with their own original content and help to ensure that Canadian content is made to be watched, not just made to comply with regulatory requirements.

Third, a competition-focused approach would ensure that the vertically integrated giants do not leverage their controls across multiple platforms to stymie new entrants or independently created content. That would require guidelines on the implementation of Internet data caps (since ISPs can use the caps to hamper online video competitors), enforcement of net neutrality rules to foster different modes of video distribution, and restrictions on the use of exclusivity by ensuring competitor access to content on reasonable terms.

The result would be a sea-change in the Canadian broadcast landscape – broadcasters competing on the quality of their original programming, broadcast distributors on the basis of the value they provide to consumers, and creators on their ability to find an audience in a world of abundance.

The CRTC launched the consultation in late May after a consortium of broadcasters and cultural groups including Bell Media, Astral Media, ACTRA, the Canadian Media Production Association, and SOCAN formed the Online Broadcasting Working Group to urge the Commission to delve into the policy implications of increasingly popular Internet-based video services.

The CRTC could have easily dispensed with the request by noting that it addressed the issue of new media regulation in 2009, concluding that regulatory intervention would get in the way of innovation and promising to revisit the issue again in 2014.

Rather than waiting for the next round of review, however, the CRTC launched its consultation on May 25th, posing eight questions on the impact of so-called over-the-top services and setting a deadline to respond of June 27th.

The CRTC approach raised two immediate concerns for consumer groups. First, the short deadline provided little time to research the issue and respond in a constructive manner, much less retain expert assistance. Indeed, the stakeholder best positioned to respond was the OBWG, the very industry group lobbying for a review. Second, by labeling the consultation a "fact-finding exercise", it took it outside the full public consultation process that offers public interest groups the opportunity to seek compensation for their costs.

When Canadian consumer groups voiced these concerns to the CRTC, they were summarily dismissed. For example, the Canadian Internet Policy and Public Interest Clinic wrote to the Commission on May 27th - two days after the consultation launch - to request an extension until the end of July (I am a member of a CIPPIC Advisory Board). The CRTC responded on June 1st, rejecting the request.

But when industry groups including the OBWG asked for extensions several days later, the CRTC quickly granted the request, giving all parties until July 5th to respond. When asked about the discrepancy, the CRTC claimed that the industry requests for shorter extensions led to the different outcome.

The Public Interest Advocacy Centre raised concerns about exclusion of costs for consumer groups in a letter sent to the CRTC on June 6th. A week later, the Commission affirmed that the intervener cost rules did not apply to the fact-finding exercise since "no policy or regulatory outcomes will be determined on the basis of this exercise."

That claim is hard to reconcile with the Commission’s reluctance to extend the submission deadline. If this is nothing more than a fact-finding exercise, there is seemingly little urgency and no need for tight timelines. On the other hand, if the exercise does ultimately lead to new policies, then the traditional rules that foster public interest participation should apply.

It notes "any restriction to the right to freedom of expression must meet the strict criteria under international human rights law. A restriction on the right of individuals to express themselves through the Internet can take various forms, from technical measures to prevent access to certain content, such as blocking and filtering, to inadequate guarantees of the right to privacy and protection of personal data, which inhibit the dissemination of opinions and information."

Given this starting point, the report is very critical of government policies around the world. It highlights arbitrary blocking of content in Africa and the Middle East and the imprisonment of bloggers in China, Vietnam and Iran. It notes that many countries have imposed liability on Internet providers if they do not filter, remove or block content generated by users that is deemed illegal. Others have imposed notice-and-takedown policies that often lead to the removal of content from the Internet and which are "subject to abuse by both State and private actors."

The report is also very critical of so-called graduated response policies that can result in people being cut-off from the Internet based on claims of infringement. It concludes that "cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights."

The link between privacy and freedom of expression is also discussed, as the report notes that governments increasingly use social networks to track individuals and access private conversations. It cites the obligation of governments to adopt effective privacy and data protection laws, including rights of access to personal information and safeguards for anonymous speech.

While the report adopts a critical tone, many governments - including Canada - were quick to laud it and "call on all states to ensure strong protection of freedom of expression online in accordance with international human rights law." The government response acknowledged the need for free flow of information online and that cutting off users from access to the Internet is generally not a proportionate sanction.

From a Canadian perspective, government policy to date has been largely consistent with the report's recommendations. Canada has few restrictions on freedom of expression online and Canadian Heritage Minister James Moore has rightly rejected the prospect of cutting off Internet users and notice-and-takedown as potential policy reforms. The one area of concern remains the forthcoming lawful access initiative, which could result in the disclosure of personal information without court oversight and run counter to the report’s recommendations on the need to ensure appropriate online privacy protections.

The Canadian market features at least three legal issues - licensing, levies, and the lack of legal flexibility - each of which could create a significant entry barrier.

There is nothing to stop the major record labels from licensing a similar service in Canada, yet experience to date suggests it won't happen quickly. Pandora, a popular U.S. online music service, has indicated that it wants to enter the Canadian market, but that the exorbitant licensing pricing make entry an economic impossibility. Given the current demands of multiple rights holders, the Canadian costs could keep iTunes Match out of the country for the foreseeable future.

Cloud based music services are based on users storing copies of their music on company computer servers. Since that requires additional "copies" of the music, Canadian copyright collectives will likely adopt the position that without a license, they are entitled to additional compensation for each copy. Collectives already receive compensation from radio stations for format shifting music files from CDs to computer hard drives and the Canadian Private Copying Collective (CPCC) recently announced that it is seeking to extend the private copying levy to memory cards that are widely used in digital cameras.

Cloud-based copies could be next, given that the CPCC has argued "the economic value of reproducing music in order to make it portable must be recognized. Rights holders deserve to be compensated for all private copies made of their work, regardless of how a copy is made."

Even if the levy issue can be overcome, the lack of flexibility within the current Canadian law would create a significant barrier to the Amazon and Google cloud music services. Both of those services rely on fair use, yet Canadian law in this area is far more restrictive than the U.S. The companies would be hard pressed to argue that the Canadian fair dealing provision could be extended to cover this form of copying. The same is true for other emerging cloud-based applications, such as remote storage digital video recorders offered by some U.S. cable companies.

To open the door to these kinds of services, Canada needs Industry Minister Christian Paradis and Canadian Heritage Minister James Moore to focus on greater flexibility in the law by implementing a flexible fair dealing model or establishing a specific exception to allow for backup copies and subsequent streaming access.

The study, which received support from the Canadian Generic Pharmaceutical Association, is a must-read for International Trade Minister Ed Fast, trade negotiators and policy makers since it clarifies the likely costs associated with the EU demands.

Iacobucci points out that competition from generic pharmaceuticals can have an enormous impact on consumer costs. For example, when generic alternatives to the cholesterol medication Lipitor appeared on the market in 2010, annual revenues for the drug dropped by $350 million. Given the billions spent on pharmaceuticals each year, rules that delay generic competitors can lead to huge additional costs.   

Iacobucci also questions the premise that increased intellectual property protection for pharmaceuticals will invariably lead to job growth and increased research and development spending. On the employment front, he notes that the brand name and generic pharmaceutical companies are both big employers in Canada - 15,000 employees for brand name and 10,000 for generics - and policy changes might not yield any net new jobs.

Iacobucci challenges the notion that because intellectual protection is good, more protection must be better. The report notes that this is particularly true in the Canadian context, which is a small player in the global pharmaceutical market.  Canada represents only 2.5 percent of the world market, meaning that Canadian laws have little impact on international incentives to innovate.

In fact, Iacobucci reveals that previous Canadian attempts to use policy levers to generate increased pharmaceutical research have largely failed. In 1987, Canada began enacting a series of reforms with the promise from brand name pharmaceutical companies that their research and development budgets would equal at least ten percent of domestic sales. The government kept its end of the bargain with changes that delayed the entry of generic drugs by up to two years and granting eight years of data exclusivity. Yet despite the reforms, Canadian research and development spending has regularly failed to meet the ten percent target.

Moreover, while the percentage of research and development spending may not have increased, Canada's pharmaceutical trade deficit certainly has. In 2000, the Canadian pharmaceutical trade deficit - the amount that imports exceeded exports - stood at $3.7 billion. By 2009, the trade deficit had grown to a record $6.4 billion.

Those numbers help explain why Canada will face great pressure to favour brand name, predominantly foreign-based pharmaceutical companies. As Fast tallies the costs and benefits of further pharmaceutical reforms, the Iacobucci study confirms that there is little in it for Canada and sheds more light on the questionable claims of the Canadian Chamber of Commerce's advocacy efforts.

James Moore, Minister of Canadian Heritage: Together with Paradis, you will be working on the fourth attempt at Canadian copyright reform. Bill C-32 provides the starting point, but we need to establish a stronger link between copyright and innovation by instituting greater flexibility on digital locks and fair dealing.

The next four years also offers the chance to create a true national digital library as the foundation of a digital cultural policy. Canada has only digitized 13 per cent of its documentary text and less than one per cent of its video, audio, and photographs. You should assume a leadership position by actively working with provincial and local groups to develop a world-class national digital library that makes Canadian culture available from coast to coast and around the world by July 2015.

Robert Nicholson, Minister of Justice and Vic Toews, Minister of Public Safety: As the two ministers jointly responsible for lawful access, you should ensure this complex legislative proposal is given a full committee review. Before instituting any mandatory surveillance technologies or establishing new police powers, we should require law enforcement agencies to demonstrate how the current legal framework is inadequate to deal with online crime. Moreover, we should ensure that all mandated disclosures of personal information are subject to court oversight.

Tony Clement, Treasury Board President: While you are leaving behind much of your digital economy work, your new responsibilities include the open government initiative. Over the next four years, we should work to make as much government data openly and freely available as possible. We should re-examine the licenses associated with the data to ensure that Canadians are free to use the information in whatever manner they see fit. Moreover, we should at long last remove crown copyright restrictions over government documents and maximize the benefits of our public research funding by requiring researchers to make their work available under open access.

Ed Fast, Minister of International Trade: You will be actively involved in negotiating several trade deals, including border negotiations with the United States, the Canada-EU Trade Agreement, and a proposed trade deal with India. Intellectual property forms a key part of these agreements and the Canadian objective should be to ensure that we retain full flexibility (consistent with international law) to implement made-in-Canada approaches on copyright and patent law. Those laws should be made in Ottawa, not Washington, Brussels, or New Delhi.

The reality of the current environment is that all broadcasters must compete with free. Free streaming has become so common that devices such as the Boxee have popped up to offer users a seemingly unlimited array of legal on-demand television programs all streamed via the Internet. Indeed, if the value associated with broadcasts is directly correlated to its free availability online, a growing percentage of broadcaster content has no market value.

The implications for Canadian broadcasters are significant since their ongoing fight for a fee-for-carriage (or value-for-signal) is premised on the notion that their broadcasts have value, independent of their availability on other platforms.

Moreover, Canadian broadcasters continue to rely on foreign (primarily U.S.) content as their most profitable and high profile programming. Given the shift toward online streaming, it is only a matter of time before U.S. rights holders retain their Internet rights to stream content on a global basis. When that happens, Canadian broadcasters will be left vying for less valuable broadcast-only rights.

The situation is little better for Canada's broadcast distributors who view streaming alternatives with growing trepidation. Free online streaming, when combined with over-the-top video services such as Netflix or new video rental services from YouTube, provides an increasingly viable, low-cost alternative to traditional cable or satellite television services.

The Internet based streams effectively reduce the value of a cable or satellite television subscription since much of what is now offered through those services is, by Bell's own definition, of no market value.

Claims that broadcast versions of free streamed programs have no market value may be an exaggeration, but there is a harsh truth in the reality that Internet streaming is having a disruptive effect on both Canadian broadcasters and broadcast distributors.  Given these emerging challenges and the vertically integrated market in which Canadian broadcasters, broadcast distributors, and Internet providers are often part of the same corporate family, the backlash is likely to be fierce.

Internet providers already deploy usage based billing schemes to increase the cost of free Internet streaming by hiking the price of Internet access. On the regulatory front, there is the growing push to increase the costs to companies that stream content by imposing broadcast-like regulations.

These moves may create new challenges for online alternatives, but they will not solve the long-term broadcaster and broadcast distributor problems of relying on programs that by their own admission faces diminishing market value.

The first prong mandates the disclosure of Internet provider customer information without court oversight.  Under current privacy laws, providers may voluntarily disclose customer information but are not required to do so.  The new system would require the disclosure of customer name, address, phone number, email address, Internet protocol address, and a series of device identification numbers.

The second prong requires Internet providers to dramatically re-work their networks to allow for real-time surveillance. The bill sets out detailed capability requirements that will eventually apply to all Canadian Internet providers.  These include the power to intercept communications, to isolate the communications to a particular individual, and to engage in multiple simultaneous interceptions.

Having obtained customer information without court oversight and mandated Internet surveillance capabilities, the third prong creates a several new police powers designed to obtain access to the surveillance data.

Lawful access raises genuine privacy and free speech concerns, particularly given the fact that the government has never provided adequate evidence on the need for it, it has never been subject to committee review, and it would cost millions to implement yet there has been no disclosure on who would actually pay for it. Given these problems, it is not surprising that every privacy commissioner in Canada has signed a joint letter expressing their concerns.

Not only is the substance problematic, but the attempt to fast track lawful access virtually guarantees that it will not be fully vetted. For example, over the past few weeks there has been mounting concern that the legislation would also create new criminal liability for hyperlinking to content that incites hatred and for using anonymous or false names online.

The source of these concerns is a legislative summary by the Library of Parliament's Parliamentary Information and Research Service. While there is reason to doubt the interpretation involving linking and anonymity liability contained in the summary, the recent fears provide a textbook illustration of why lawful access should not be included in the omnibus crime legislation.

Lawful access is complex legislation that touches on a very wide range of issues, many of which extend far beyond conventional criminal law. Given that the proposals breed uncertainty and have never been the subject of public review, lumping them together with many other bills represents a serious threat and is bound to result in only a cursory analysis of an important piece of legislation that has far reaching consequences for privacy, security, and free speech.