My weekly Law Bytes column (freely available hyperlinked version, Toronto Star version) summarizes the key points in my submission to Canada’s Telecommunications Policy Review. The submission should be posted online within the next day or two [update: the submission is now online]. I argue that three principles should govern the country’s Internet telecommunications policy: universal broadband access, legislated network neutrality, and statutory Internet privacy protection.
On the issue of broadband access, I lament a broadband marketplace that features a telco-cable duopoly for those with broadband access and no broadband whatsoever for communities without cable competition. In my view, the solution to this significant problem is clear — where cable and telephone providers have proven unable or unwilling to offer commercial broadband services, federal, provincial and local governments should fill the void to ensure that all Canadians enjoy access to e-commerce, distance education opportunities, tele-health, and e-government services. In fact, even in communities with both cable and telco broadband choices, local municipalities should consider offering a third, publicly supported broadband alternative using a utility model.
With regard to network neutrality, I argue that in an era where limited broadband competition and growing convergence leaves providers with economic incentives to favour their own (or affiliated content) over competing services or offerings, content neutrality in the provision of network services is an absolutely essential principle that should be firmly established under Canadian law backed by regulatory oversight and significant penalties for compliance failures. The power of the Internet to foster public participation, provide greater cultural choices, and exposure to educational opportunities rests on a principle of unrestricted access to such content. The Telus incident demonstrated that Canadian law does not provide sufficient support for such a principle.
Moreover, telephone and cable broadband providers should be legally prohibited from configuring their networks to favour or preference their own VoIP offerings over the competition. The treatment of "bits" should be equal and devoid of any preferencing such that emerging competitors can realistically compete with established providers.
With courts recognizing the importance of Internet-based privacy, it is critical that the Canadian legal framework reflect the importance of protecting individual privacy. This can be best achieved by statutorily permitting the disclosure of subscriber personal information only under court order where the privacy interests of the individual can be fully considered and protected. Canadians should also be informed when their personal information has been compromised due to a security breach at an ISP. The Act should therefore include a positive obligation on ISPs to report breaches in the security of personal information in their possession.
I conclude the column by noting that Canada has long prided itself in being a telecommunications leader. That leadership position is being challenged, however, as other countries, recognizing the importance of the Internet, introduce supportive new policies. The Canadian telecommunications policy review may have gone unnoticed, but its recommendations will have a major impact on Canadians access to knowledge, education, and communication for years to come.