Michael Geist
March 2005

Appeared in the Toronto Star on March 7, 2005


During the Internet boom of the late 1990s, Nortel Networks ran an advertising campaign that featured as its slogan, “what do you want the Internet to be?”.  The implications were obvious – the Internet was a technology of unlimited possibility that could be whatever we wanted it to be.

More than five years later, Nortel’s vision is becoming reality.  The Internet has become so essential to the every day lives of millions of people – a pillar of communication, information, entertainment, education, and commerce – that at times it seems as if the Internet really is anything we want it to be.

Notwithstanding the Internet’s remarkable potential, there are dark clouds on the horizon.  There are some who see a very differing Internet.  Theirs is an Internet with ubiquitous surveillance featuring real-time capabilities to monitor online activities.  It is an Internet that views third party applications such as Vonage’s Voice-over-IP service as parasitic.  It is an Internet in which virtually all content should come at a price, even when that content has been made freely available.  It is an Internet that would seek to cut off subscriber access based on mere allegations of wrongdoing, without due process or oversight from a judge or jury.

This disturbing vision of the Internet is not fantasy.  It is based on real policy proposals being considered by the Canadian government today.  

Leading the way is the federal government’s “lawful access” initiative.  While the term lawful access sounds innocuous, the program, which dates back to 2002, represents law enforcement’s desire to re-make Canada’s networks to allow for lawful interception of private communications.

If lawful access becomes reality, Canada’s telecommunications service providers (TSPs) will be required to refit their networks to allow for real-time interception of communications, to have the capability of simultaneously intercepting multiple transmissions, and to provide detailed subscriber information to law enforcement authorities without a court order within 72 hours.

Moreover, Canada’s TSPs will be subject to inspections and required to provide the government with reports on the technical capabilities of their networks.  All of these activities will be shrouded in secrecy with TSPs facing fines of up to $500,000 or sentences of up to five years in jail for failing to keep the data collection confidential.

All of these changes come at an enormous cost – both financially (hundreds of millions of dollars in new technology) and to our personal privacy.  While some changes may be needed for security purposes, the government has yet to make the case for why the current set of powers, which include cybercrime and wiretapping provisions, are insufficient.  Moreover, there has been no evidence provided that this approach is the least privacy invasive alternative.

Refitting the network is not limited to government initiatives.  In recent weeks it has become apparent that the network providers themselves may seek to interfere with the free flow of data.  For example, Vonage (the leading independent Voice-over-IP provider) recently filed a complaint with the Federal Communications Commission in the U.S. alleging that an unnamed Internet service provider was blocking its service.  Last week, the ISP agreed to stop and to pay a fine to the FCC.

In a less publicized incident, the Communications Commission of Kenya last week ordered the state-owned Telkom Kenya to restore service to Sema VoIP, another Voice-over-IP provider which is backed by Canadian-based BMT North America. The Commission warned Telkom Kenya against taking similar action in the future.

The issue raised by these cases is not new.  Observers have long feared that ISPs would succumb to economic self-interest, engaging in “packet preferencing” by blocking or slowing data coming from competing sites or services.  While ISPs are quick to argue that they want merely to serve as intermediaries without regard for what traverses their networks, as they offer competing Internet phone services, music download services, and other value-added content, there will be a clear temptation to create a home network advantage.

In fact, at the CRTC hearings into VoIP last fall, the parent company of at least one major ISP gave every indication that it did not view third party services favourably.  Quebecor, which owns Videotron, told the Commission that services such as Vonage contributed nothing to the development of facilities-based competition and that “the service provider’s VoIP-based service is totally parasitic on the local access facilities of other carriers.”

As the leading Canadian ISPs roll out their own VoIP services, many may look at competing services in the same way and seek to limit the use of their network.  Stopping such interference requires a strong CRTC, yet with Industry Minister David Emerson’s planned review of Canada’s telecommunications law, some industry experts fear that Canada is heading in the opposite direction.

The Minister of Industry, together with Liza Frulla, his Canadian Heritage counterpart, are also reportedly about to finalize new rules that may reshape the availability of Internet content to educational institutions.  Acting on the recommendation of a parliamentary committee that was chaired by Toronto MP Sarmite Bulte, the government may soon unveil a new “extended license” that would require schools to pay millions of dollars for content that is currently freely available on the Internet.

While the committee recommendation excluded payment for content that is publicly available, it adopted the narrowest possible definition of publicly available, limiting it to only those works that are not technologically or password protected and which contain an explicit notice that the material can be used without prior payment or permission.

Moreover, those same ministers are also contemplating a new system that would allow content owners to file a complaint with an ISP if one of their subscribers has allegedly posted infringing content.  Canada’s rules for child pornography still require a court order before content is removed, yet if the Canadian Recording Industry Association and other well-funded interests get their way, the ISP will respond to a mere allegation of copyright infringement by “kicking the subscriber off the system.”   

With Canada conceivably ready to adopt rules that make it far easier to remove an allegedly infringing song than to remove dangerous child pornography from a new fee-based, surveillance-ready, packet preferenced Internet, it is difficult to overstate how out of touch our Internet policy process has become.  Is this really what we want our Internet to be?    

Michael Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached by email at mgeist@uottawa.ca and is on-line at www.michaelgeist.ca.

Full Column Archive

 Let Towns, Cities Provide Cheap, Everywhere Broadband  Toronto Star (28th February 2005)
 No Need for Dickensian Approach to Voice Via Web  Toronto Star (20th September 2004)
 Music Industry Doesn't Need More Government Protection Toronto Star (21st February
 A Blueprint for Better, and Fairer, Copyright Law  Toronto Star (9th August 2004)
 Revise Privacy Law To Protect Public, Not Offenders  Toronto Star (14th February 2005)
 Will Copyright Reform Chill Use of the Web?  Toronto Star (31st May 2004)
 No Good Reason to Bow To U.S. Pharma's Lobbying  Toronto Star (7th February 2005)
 Federal Proposal Tells Only Part of Cybercrime Story  Globe and Mail (3rd October 2002)
 TPMs - A Perfect Storm for Consumers  Toronto Star (31st January 2005)