Bell Controversy Puts Spotlight on Net Surveillance

My weekly Law Bytes column (Toronto Star version, homepage version) focuses on last week’s controversy involving Bell Sympatico and a change to its user agreement.  The Bell clause, which took effect on June 15th, advised subscribers that the company retains the right to "monitor or investigate content or your use of your service provider’s networks and to disclose any information necessary to satisfy any laws, regulations or other governmental request."

A widely circulated Canadian Press story (which featured several of my comments), noted that the Conservative government is expected to reintroduce lawful access legislation this fall and speculated that the change might have been in anticipation of that statutory reform.  Many online pundits also chimed in, pointing to the battle over network neutrality in the United States, expressing fears that the Bell change might be designed to pave the way for a two-tier Internet in Canada under which ISPs levy fees on websites to deliver their content.

For its part, Bell swiftly issued a statement emphatically denying that the amendments were linked to lawful access, maintaining that the company had a "a long and established history of protecting the privacy of its customers."

The gist of the column is that regardless of the motivations for the change – whether harmless drafting amendments, lawful access, or network neutrality – the public and media reaction demonstrates how increased Internet surveillance is a political and business minefield that invariably stirs up vociferous opposition. From a political perspective, last week’s incident is only the latest example of significant public outcry when the lawful access proposals attract attention from the mainstream media.  Over the past year, there have been a growing number of editorials cautioning against legislation that would increase Internet surveillance yet decrease judicial oversight.

If lawful access legislation reemerges, the fallout is likely to extend beyond the political arena to the network providers themselves.  As Canadians react to the lawful access proposals, many will want to see network providers supporting their privacy interests.  To date that has not occurred, since those same providers have been perceived to be more concerned with the financial costs associated with lawful access (the Ottawa rumour mill suggests that the Conservative government will commit tens of millions of dollars to the lawful access program to address those cost concerns).

The need for Canada’s network providers to stand behind their customers’ privacy interests extends beyond lawful access. With a review of Canada’s federal privacy legislation set for later this year, Canadians may also begin to ask why some network providers disclose subscriber information to law enforcement without a court order, relying instead on an exception found within the federal privacy law.

Internet use has become an integral part of daily life, serving as the foundation for daily communication, commerce, education, and entertainment for millions of Canadians.  Internet service providers stand as the gatekeepers of the enormous amount of personal information that is a by-product of that activity.  Experience suggests that Canadians want their ISPs not only to protect that data, but to actively support their privacy interests as well. 


  1. Michel Donais says:

    Mail versus Internet
    I believe Internet is more or less like mail. Canada Post must have darned good reasons to open any letters, same for Internet IMHO, and there are no reasons for it to be different, these are private communications and should be protected as private life.

    I work at home. I backup two servers on my personal computer, I use a lot of odd protocols, my bandwidth usage is huge and with multiple computers on both sides. I use VOIP, I transfer a lot of files for my work, I use the net for my personal leisure. Most protocols I’m using are encrypted, oh and I am vocal on my blog with some of my opinions too. I even ran a Tor network server for a few months. All in all, I am totally sure to be in the top “worst users” list of my provider and darned sure I would be flagged for verification under any “preventive” investigations.

    It’s not a Pandora’s box I want opened on this side of the border.

  2. Experiance suggests….
    “Experience suggests that Canadians want their ISPs not only to protect that data, but to actively support their privacy interests as well.”

    The ISP couldn’t care less. If they did, they wouldn’t out-source to american Email systems. Or put its customer data on these cross border out-sourced systems.

    Bottom line is the buck for them without regard for customer privacy. The Canadian customer has NO recourse or right in regards to Canadian law on these cross-border out-sourced systems. I know, I went through the exercise of writting MS-MSN (my canadian ISP’s cross border out-sourced Email service). I was flat out refused access to information pertaining to me (as is my right to see it, in Canada) and was kindly THEN told that my inquiry and the marketing knowledge gained would be added to my profile and shared with other compaines in the USA.

    This has got to stop. Not only IS the ISP providing a mass database of Canadian consumers to the states with their info, the US companies gladly accept it all and laugh at you (the foriegner) when requesting things that is your lawfull right in Canada.

    Things will only get worse for the consumer.

    Makes me wonder what money is exchanging hands for the millions of Canadians (mass-exidus of information) from Canadian ISP to the Americans.

    My experiance suggests the Canadian ISP couldn’t care less.

  3. Faiza Zia Khan says:

    Privacy vs Policy
    In my opinion implications of the Bell Policy are deeper than its requirement to, “monitor or investigate content or your use of your service provider’s networks and to disclose any information necessary to satisfy any laws, regulations or other governmental request.” It reflects the immense pressure Canada is facing from all stakeholders in the copyright governance race. Canadians have to stay abreast of all policy changes internationally. Close proximity with the US puts us under greater scruntiny to enclose our “commons” whether we like it or not. Much as Canada stands for its freedom, it has been restrained due to such legislations. Do these policies help the public or hinder their interests? This remains a highly contentious issue.

  4. Lawrence Lean says:

    An ISP giving it up as a mere conduit?
    I think Bell is risking a great deal here financially.

    The Copyright Act had provided them comfort as a passive conduit to infringement claims as a mere conduit at paragraph 2.4(1)(b) and by definition not authorizing the communication of the work:

    “2.4(1)(b)… a person whose only act in respect of the communication of a work or other subject-matter to the public consists of providing the means of telecommunication necessary for another person to so communicate the work or other subject-matter does not communicate that work or other subject-matter to the public;”

    If they are monitoring the network content, they are in that process apparently doing more than just providing the means of communication. Their change in the terms of service would see to suggest that they would if they did not intervene in all cases, be co-sanctioning or co-authorizing the use of any content, and should logically be included as the target of any lawsuit over the infringement copyrighted works communicated through their non-passive network.

    I would guess that the big legal case over Tariff 22 might have turned out quite different had this apparent disregard of paragraph 2.4(1)(b) of the Copyright Act had taken place in the relevant period before the decision of June 30, 2004 in the Supreme Court of Canada.

    Further the actions of the CRIA v. the ISP’s in the future would also change in my opinion from merely requesting identifying information to also include the ISP, Bell in this case, in the action itself for infringement.

    This does not make sense for Bell to risk notwithstanding any apparent privacy concerns that seem to be the bug in the public eye here.

    What is really going on here Michael????


    PS See: for more analysis and detail on the Supreme Court decision and Paragraph 2.4(1)(b).