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Tough Choice for CRTC in Hate Blocking Case

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Monday August 28, 2006
 
More than a decade ago, John Gilmore, one of the founders of the Electronic Frontier Foundation, coined the phrase "the Internet interprets censorship as damage and routes around it." Last week, the Canadian Radio-television and Telecommunications Commission declined to wade into this issue in a case that placed the spotlight on how Canada's Internet service providers treat illegal content that originates outside the country.

The person behind the case was Richard Warman, an Ottawa lawyer who is one of Canada's leading activists against Internet-based hate. Warman has filed numerous complaints with the Canadian Human Rights Commission against Canadian-based hate sites, arguing that those sites violate the law.  The Commission has sided with Warman on several occasions, most recently in a case against a London, Ontario man who was sentenced by a federal court judge to nine months in prison.

Reacting to the jail sentence, several U.S.-based sites directly targeted Warman, mounting death threats against him.  Warman asked U.S. law enforcement authorities to take action against the sites, but when they failed to do so (those cases are under investigation), he filed his groundbreaking application with the CRTC.

Although several news organizations reported that Warman was asking the CRTC to order Canadian ISPs to block access to the offending sites, the application did not seek government-mandated censorship of foreign content.  Instead, the CRTC was asked to authorize Canada's telecommunications carriers to voluntarily block the sites (the Telecommunications Act would ordinarily render such blocking unlawful).  Therefore, even if the CRTC had issued the order, there was no guarantee that the carriers would have blocked the sites.

On Friday, the CRTC denied Warman's request, noting that the ISPs and the affected sites were not provided with advance notice nor the opportunity to present their views.  While the CRTC was right to emphasize that all parties should be heard, the issue should remain on the public agenda as important procedural safeguards should not be used as an excuse to leave it unresolved.

Had it addressed the substantive questions, the case would have presented an enormously difficult choice.  There is little doubt that the content in question is illegal and that Warman faces a serious threat.  By directly targeting Warman, the foreign sites have arguably brought themselves within Canada's jurisdiction.  Further, by merely asking the CRTC to issue a voluntary order, Warman avoided state-sanctioned censorship and placed the issue in the hands of ISPs.

Despite the good intentions behind the application, however, there remains some cause for concern.  First, it is unlikely that the order would have proven to be effective given that the CRTC's jurisdiction is limited to the major telecommunications carriers, with many ISPs remaining outside of its regulatory mandate.

Second, blocking technologies are notoriously overbroad.  For example, when Telus last year blocked Voices for Change, a website supportive of one of its labour unions, a university study found that hundreds of additional websites were inadvertently blocked in the process.  Although blocking technology may have improved by targeting domain names rather than IP addresses, there is a real risk of blocking legitimate content.

Third, blocking foreign content establishes a dangerous precedent that can easily be misused.  While child pornography can and should be blocked since merely viewing such content is illegal, the prospect of extending blocking to hate speech, defamation, or even copyright infringement complicates the analysis considerably.  

Regardless of one's views on the CRTC's denial of the application, there is likely wide agreement that Canada must begin to grapple with the Internet challenge of balancing free speech rights with rules that outlaw certain forms of speech that have been judged harmful to our multicultural society.

A policy framework that addresses these competing goals would likely include complaints mechanisms, a presumption that the content is lawful and must be disproved by a high standard of evidence, an opportunity to challenge blocking requests, appropriate judicial oversight, and full transparency about blocking activities.  The job is not the CRTC's alone - law enforcement and the judiciary must surely be involved in the process of determining what may constitute unlawful content and the remedies that follow - but the regulator can assist in the process.

Critics are quick to draw parallels to Internet censorship in countries such as China. However, those countries involve state-based content blocking, with no transparency or legal recourse.  In fact, several democracies - most notably Australia - have established limited blocking rules, while British Telecom, the UK's largest ISP, voluntarily blocks child pornography as part of its CleanFeed program.

Even with various legal safeguards, many Canadians would undoubtedly find the blocking of any content distasteful. Yet to do nothing is to leave in place an equally unpalatable outcome that silences those would speak out against unlawful hate speech for fear of personal harm.  While the Internet raises some difficult policy challenges, few are more difficult than the one that came before the CRTC last week.

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.

Comments (5)add comment

Fairness Fairy said:

...
I think we have to expand our scope when looking at a situation like this. Though I commend Mr. Goldberg on his initiative in this case I must point out that not enough of this case is getting reported.

I will give Mr. Goldberg the benefit of the doubt on this case as I do not believe that he has enough background information about the Applicant, Richard Warman.

People read stories like this and get affected by the "victim impact statement". In this case, Mr. Warman states that he fears for his life due to the fact that his address has been posted online. No one stops to think as to what the actual origins of this issue were. I was amazed to see that almost all the Canadian coverage of this issue gave very little background about anything to the point of being frustrating.

There was no mention of Mr. Warman's relationshp to Mr. White in the U.S. No talk about Mr. Warman's crusade against hate propaganda online or his speeches and awards. All that coverage started when the CRTC motion failed. But in the tradition of "speaking well of the victim", nothing will likely be revealed that will answer any questions as to why things would possibly turn out this way and why a man in the U.S. would care about a specific lawyer in Canada.

In the Zundel case, the Supreme Court ruled that Zundel could not make the court believe that he did not approve of violence when he spent most of his time with violent people or groups.

Richard Warman finds himself in a similar position. He recently seems to have sponsored an urban terrorist group called the Anti-Racist ActionӔ to protest in front of another individuals house whose ideas he did not agree with and he considered a "Neo-Nazi" (Mr. Warman has a tendecy to call anyone he considers a racist by that name to create the maximum effect).[ link ]

They picketted his street with masked faces and sticks and weapons. the cops acted as a barrier between them and Mr. FrommҒs house. This group of individuals that Richard Warman has given speeches to and financed, were also responsible for the firebombing of Ernst Zundel's house in the mid-90s, including the posting of instructions to make a moltov cocktail printing beside a picture of Zundel. (link with news articles and pictures on the ARA, including the firebombing, and articles about them attacking police horses eyes with sharp sticks during protests) [ link ]

And if you visit the website of ARA Toronto [ link ] , the first page is a video that shows their members in another county of ganging up on an individual sleeping on a train that they suspected was racist and assaulting him while filming it.

After the protest, this group posted Paul FrommҒs address online in a declarationӔ about their successfulӔ mission attacking his house.[ link ]

While they were protesting however, a member of the group was holding up a sign that said, Thank you Richard Warman for the bus rentalӔ. Another with Die Nazi ScumӔ (could that be considered a death theat?)
[ link ] and [ link ]

As you can see in the pictures, some of the members are masked in this protest.

What relation does Paul Fromm have to Richard Warman?. Paul Fromm is an individual that Warman is trying to sue, seemingly unsuccessfully, for calling him a censor/an enemy of free speech. Also, Paul Fromm has been doing free legal defense work for individuals that Richard Warman files human rights complaints against. A month before the attack on Pauls house, Richard Warman was unsuccessful in trying to have Mr. Fromm banned from defending people for free at the Warman v. Tremaine case. At the Canadian Human Rights Tribunal, the complainant gets a lawyer from the Canadian Human Rights Commission to prosecute the case for him (for free), but the respondents have no right to legal representation, so they have to pay for their own lawyers. Since most people that Richard Warman targets are youth that post messages online, they canҒt afford that.

Aside from trying to ban Mr. Fromm from representing Mr. Tremaine, before this case was so much as evaluated by the investigative body (CHRC) Richard Warman called up the university where Mr. Tremaine worked and told them he was a racist and convinced them to fire him. [ link ]

This is nowhere near the begining of what Mr. Warman has done, but it's a taste. He has affected other peoples lives and threatened their safety as well on many occasions. You live by the sword, you die by the sword.

Now when we reevaluate the "victim" in this case, is it okay for RIchard Warman to do exactly the same thing to other individuals and then whine about it when it gets reciprocated. I am overjoyed by the fact that the CRTC did not buckle to the false image of public opinion that the media created in their patchy reporting of the incident.

At least the next time around when Mr. Warman tried to bring this issue to the CRTC again, the other parties will have the chance to introduce this type of information to counter his. I wonder what the CRTC would think knowing this.

And speaking of missing information, I wonder how the CRTC would feel finding out that Mr. Farber was a little less than honest on his affidavit when he stated that he was a qualified expert in the field of hate, etc,etc....

Would the give his affidavit the same weight if he didn't leave out that the last time he tried to testify (in 1999 - Skinhead/Roma cse), he was disqualified as an expert because he had made comments to the media that indicated that he is dangerously biased would likely say anything to get "racists" nailed. [ link ]

There is no information to show he has been requalified as an expert witness since then. And the fact that he decided to dive into an ex parte application shows that his heart is not in the right place.
August 28, 2006

Ianal said:

tech writer
I put the above article (not the follow-on comments) together with other articles in this blog, to get the following:

Large carrier "shapes" bandwidth to give preferential treatment to certain packets and give disadvantageous treatment of packets containing "TV" shows, music, and other material from their competitors (or competitors of the carrier's partners).

Smaller carrier or ISP "shapes" bandwidth by blocking (giving disadvantageous treatment to) packets from what somebody decides are "hate sites" (whether from outside the country or not).

Seems to be a certain parallel. You can decide whether it might hold up.

But the thing that would concern me, if the parallel did hold up (the one being used to justify the other) is that the next step is:

If you CAN actively exclude content from the availability to a Canadian audience - have the physical ability and are legally permitted to do so - then you WILL eventually be made to exclude content, to censor what the little Canadians are allowed to see. For their own good, of course. I still can't legally get HBO, so there's precedent, regardless of the context or the pretext.

Wouldn't be long after that that we'd be in the same boat as citizens of mainland China, allowed to hear and see only the party line via the state-controlled (version of the) internet.

I might have a different take if hate sites (and others) were able/allowed to push their content into my face, but as long as I have a choice about what I read, and as long as I and others can use our own websites and blogs to comment on the nature of the offending sites and undermine their arguments, we can exercise social pressure against them.

I've never met a bureaucrat, politician, or corporate honcho whom I trust to control what I see and read. I've never encountered a situation where I am better off not being able to know about something, according to somebody else's decision regarding what's good for me.

It's sad, and a little frightening to be in the minority in that respect.

One possibility that ISPs might consider is to implement "grading" of sites and content by users to build up a picture or recommendation based on reviewers comments and numeric ratings in several categories. Let parents then screen what their youngsters see, according to the reviews and standardized ratings. If there's no review, then block it auomatically until you've seen it yourself and decided whether it's something you want your kid reading/watching... but do the blocking at your house, not at the Canadian border nor at my ISP.

So, in summary, I'm against anything that sets or reinforces a precedent whereby carriers are allowed (let alone required) to censor and block content. Keep it like snail-mail and couriers - content is not the carrier's business or responsibility. Only exceptions are materials hazadous to the carrier itself.
September 18, 2006

Joe Who said:

Commentary
I think it's pretty obvious,and I hope that most who saw it realized that the "Fairness Fairy'" comments above, are supportive of the misue of internet technology by hateful, miscreant types.

One example of the misinformation offered, was an attempt to minimize explicit death threats that Mr. Wareman received.

October 08, 2006

David Magda said:

common carrier?
Would this filtering potentially risk the ISPs' common carrier status? If they start filtering this, can they be forced to filter other things? Is there any liability in NOT filtering (like they have in the past), or is this mostly for PR or morality?
November 24, 2006

Law is Cool said:

What about the Others
What is most interesting for us is to observe whether such protections will be extended towards marginalized communities that do not share public sympathies, i.e. the recent CIC case against Maclean's.

We wait and observe.
January 06, 2008

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