MICHAEL GEIST
Thursday, April 6, 2000
Canadian courts and regulators garner most of the headlines, but the federal tribunal responsible for adjudicating labour relations is quickly emerging as a key Internet policy maker.
Last June, the Canadian Industrial Relations Board rendered a decision involving the interactive division of CITY-TV, ruling that the division's new media workers were entitled to join the company's primary union. The case centered on whether broadcasting over the Web ("Webcasting") is broadcasting for the purposes of federal jurisdiction.
The board ruled that Webcasting is akin to broadcasting and falls under the federal mandate. (Under Canadian constitutional law, the federal government, through the Canadian Radio-television and Telecommunications Commission, regulates broadcasting entities.) The board's decision was consistent with the findings of the CRTC last spring, when it ruled that Internet broadcasting could be considered broadcasting under the Broadcasting Act.
The board recently returned to the issue of the Internet and federal jurisdiction in a decision involving the Internet services division of Island Telecom of PEI. The decision is likely to have a significant impact on the regulation of Internet service providers in Canada and merits serious consideration.
The case arose from a union application to declare Island Telecom and Island Tel Advanced Solutions, its Internet services division, a single entity, entitling workers from both Island Tel and ITAS to join a single union.
Island Tel contested the application, arguing that ITAS is not a federally regulated business and falls outside the board's jurisdiction.
After determining that ITAS was mainly providing Web access (80 per cent of its revenue came from ISP activities in 1997), the board took a close look at what an ISP does and how it should be treated from a regulatory perspective.
Careful consideration of ISP activity led the board CIRB to characterize ISPs as the "gatekeepers to the Internet" since most users can only obtain access through them.
From a technical perspective, the board found that ISPs play a critical role in granting users access to the Web, since they maintain the servers that translate the request of a domain name into its Internet Protocol number equivalent. For example, when http://www.globetechnology.com is keyed in, an ISP's domain name server translates it into 199.246.67.39, which enables the Web browser to retrieve the requested page.
Given the vital role of an ISP in facilitating Internet access, the CIRB ruled that ITAS -- and indeed, all ISPs -- are an "integral part of the process of transmission of digital bits from one province to another, and from one country to another, through telephone lines, for interconnected computers."
With this analysis in hand, the board had little trouble ruling that the work done by ITAS brought it within the definition of a "telecommunication service" and within federal jurisdiction.
The board dismissed the argument that a distinction should be made between the application domain (the translation of domain names into their IP numeric equivalent) and the transport domain (the actual transport of bits across the network). While ITAS tried to argue that ISPs do not actually transport information since this aspect of the transmission is completed over the phone companies' network, the CIRB ruled that from a constitutional law perspective, the integral role played by ISPs in the network communications process is sufficient to invoke federal jurisdiction.
One of the most significant implications of the Island Tel decision is that Bill C-6, Canada's e-commerce and privacy legislation -- which passed its third reading in the House of Commons earlier this week -- will now likely apply to ISPs when the law takes effect, likely Jan. 1.
Bill C-6 applies only to federally regulated businesses, such as banks, airlines, or telecommunications providers, during its first three years the law is in force. Since this decision classifies ISPs as telecommunications providers, they will find themselves subject to federal privacy legislation more quickly than anticipated. This provides Canadians with increased privacy protections -- and ISPs with a serious challenge to get their privacy frameworks in order.
Michael Geist is a law professor at the University of Ottawa School of Law specializing in Internet and electronic-commerce law. He can be reached at mgeist@uottawa.ca and on the Web at http://www.lawbytes.com.
