Net Neutrality And Creative Freedom (Tim Wu at re:publica 2010) by 
Anna Lena Schiller (CC BY-NC-ND 2.0) https://flic.kr/p/7VfazT

Net Neutrality And Creative Freedom (Tim Wu at re:publica 2010) by Anna Lena Schiller (CC BY-NC-ND 2.0) https://flic.kr/p/7VfazT

Net Neutrality

Stop ACTA 21 by Martin Krolikowski (CC BY 2.0) https://flic.kr/p/bs3Yxp

With U.S. Retreat from Online Privacy, Canada Needs to Safeguard the Internet in NAFTA Talks

The North America Free Trade Agreement renegotiation is likely to start within the next few months as the U.S. triggers provisions that will re-open Canada’s most important trade deal.  With U.S. Secretary of Commerce Wilbur Ross emphasizing the need to address digital economy issues, I wrote about a digital economy-era NAFTA in last week’s Globe and Mail, noting that there were some issues (including online contract enforcement and consumer protection) that should relatively uncontroversial.

In light of yesterday’s U.S. Congressional decision to overturn online privacy rules, it is worth revisiting the NAFTA renegotiation issue and consider whether Canada will need to safeguard its Internet policy. I noted last week that the U.S. was already likely to target two Internet-related privacy measures: data localization and data transfers. Data localization, which could mandate retention of personal information on computer servers located in Canada. has become an increasingly popular policy measure worldwide as countries respond to concerns about U.S.-based surveillance and the subordination of privacy protections for non-U.S. citizens and residents. The Trans Pacific Partnership included restrictions on data localization requirements at the insistence of U.S. negotiators and those provisions are likely to resurface during the NAFTA talks.  Similarly, limitations on data transfer restrictions could surface, restricting the ability to establish privacy safeguards and placing Canada in a difficult position with the EU requiring restrictions and NAFTA prohibiting them.

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March 29, 2017 5 comments News
Man on Sidewalk in Nikes (Buenos Aires, Argentina 2002) by Woody Wood (CC BY-NC 2.0) https://flic.kr/p/s1xotg

What Would a Digital Economy-Era NAFTA Mean for Canada?

U.S. Commerce Secretary Wilbur Ross is expected to file a notice of renegotiation of the North American free trade agreement within weeks, paving the way for talks that could reshape the Canadian economy. It became clear last week that the renegotiation will involve much more than just a few “tweaks”, as a U.S. congressional hearing saw officials trot out the usual laundry list of demands including changes to agricultural supply management, softwood lumber exports, and anti-counterfeiting measures.

Those issues will undoubtedly prove contentious, yet my Globe and Mail article notes that more interesting were comments from Mr. Ross about the need for new NAFTA chapters to reflect the digital economy. The emphasis on digital policies foreshadows a new battleground that will have enormous implications for Canadian privacy laws and digital policies.

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March 24, 2017 4 comments Columns
170120-D-PB383-047 by Chairman of the Joint Chiefs of Staff (CC BY 2.0) https://flic.kr/p/RfxDS6

The Trouble for Canadian Digital Policy in an ‘America First’ World

Canadian digital policy over the past decade has been marked by a “made-in-Canada” approach that ensures consistency with international law but reflects national values and norms. On a wide range issues – copyright rules, net neutrality, anti-spam legislation, and privacy protection among them – the federal government has carved out policies that are similar to those found elsewhere but with a more obvious emphasis on striking a balance that includes full consideration of the public interest.

My Globe and Mail opinion piece notes that as with many issues, the burning question for the Liberal government is whether the Canadian digital policy approach can survive the Donald Trump administration. Trade pressures are likely to present Canada with an enormous challenge in maintaining its traditional policy balancing act since the United States is already using tough talk to signal demands for change. This suggests that many Canadian policies will be up for negotiation, although there are some potential opportunities that reside outside of the trade talk spotlight.

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January 25, 2017 Comments are Disabled Columns
Save the Internet - Demonstration in Vienna by Arbeitskreis Vorratsdaten (CC BY 2.0) https://flic.kr/p/GT8mgK

The CRTC’s Differential Pricing Hearing: ISPs Should Not Be Picking the Internet’s Winners and Losers

Net neutrality, the longstanding principle that Internet service providers should treat all content and applications in an equal manner faces its toughest test yet this week as the Canadian Radio-television and Telecommunications Commission (CRTC), Canada’s broadcast and telecommunications regulator, conducts a hearing on whether ISPs may engage in “differential pricing”.

My Globe and Mail column notes that differential pricing refers to instances in which ISPs adopt a non-neutral approach to content by charging one price for consumers to download or access some content, but a different price for other content. The issue – sometimes known as “zero rating” for cases in which ISPs do not levy any data charges for certain content – may sound technical, but it has huge implications for how Canadians access and pay for Internet services.

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November 2, 2016 3 comments Columns
Vigil At The White House To Save Net Neutrality 1 by Stephen Melkisethian (CC BY-NC-ND 2.0) https://flic.kr/p/pXJ7P4

Canadian Battle over “Zero Rating” Places Net Neutrality Safeguards at Risk

Net neutrality emerged as a top Internet policy issue over 10 years ago as some Internet service providers openly discussed creating a two-tier system with a fast lane for websites and applications willing to pay additional fees and a slow lane for everyone else. The companies maintained that consumers would benefit from the two-tier approach by gaining faster access to premium content.

Internet users and emerging technology companies banded together to oppose the approach, arguing that all traffic should be treated in an equal manner regardless of content, source, or destination. They noted that the two-tier approach could lead to unfair competition and an inability for start-up companies to challenge established players.

My weekly technology law column (Toronto Star version, homepage version) notes that Internet users won the policy battle and years later net neutrality rules can be found worldwide. Indeed, the importance of an “open Internet” was recently affirmed by Navdeep Bains, Canada’s Minister of Innovation, Science and Development, who told an international conference that the economy depends upon it.

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July 5, 2016 7 comments Columns