My weekly law and technology column (Toronto Star version, Ottawa Citizen version, homepage version) picks up on last week's Leger Marketing survey that found that Canadians are generally unaware of net neutrality issues, yet, when informed of the concern, strongly support the principles that provide the foundation for net neutrality legislation.

Most Canadians can hardly be faulted for being unaware of net neutrality since ISPs have done their best to keep the issue off the public's radar screen.  While solving the net neutrality issue will not happen overnight, addressing the lack of transparency associated with Internet services would go a long way toward creating a more informed debate.
For example, Rogers, one of Canada"s largest ISPs, has faced regular criticism over its failure to come clean on "traffic shaping" practices on its network. Traffic shaping limits the amount of bandwidth available for certain applications such as peer-to-peer file sharing.  The company markets its high-end Extreme package as "its fastest residential service for sharing large files, " however, the reality is that consumers are promised service offering specific speeds and a maximum cap on data transfers, yet are secretly unable to make full use of the service for which they have paid. Rogers maintains that it needs to manage its network with traffic shaping technologies in order to provide a better quality of service for all its customers.   It continues to shroud its practices in secrecy, however, as its website does not include a single mention of traffic shaping or limits on peer-to-peer applications and company spokespeople have provided inconsistent explanations for what is happening behind the scenes.

Last week, a company executive told an industry meeting that Rogers traffic shapes by limiting the percentage of bandwidth available for peer-to-peer file sharing.  From a consumer perspective, that means that upgrading to faster products will only yield limited benefits, since the faster bandwidth is partially offset by traffic shaping. Rogers insists that the traffic shaping is essential, yet it is disappointing that the company seemingly refuses to level with its customers.  In contrast, some of Rogers' competitors have opened up on the traffic shaping issue – Bell recently advised customers that it may engage in network management to address excessive bandwidth use.

While Bell's acknowledgment is a welcome development, it still faces criticism for the uncertainty associated with other services.  Last month, Bell unveiled a new "unlimited" data plan for laptop computers using a PC card slot.  Consumers who took the time to read their contract quickly realized that the offer was not quite what it seemed as the fine print prohibited "multi-media streaming, voice over Internet protocol or any other application which uses excessive network capacity."  The contract went further, prohibiting any use that "consumes excessive network capacity in Bell's reasonable opinion, or causes our network, or our ability to provide services to others, to be adversely affected."  In other words, while the company markets its service as unlimited, the reality is that consumers face significant, largely unknown restrictions.

While Canadian leaders such as Industry Minister Jim Prentice, Canadian Radio-television and Telecommunications Chair Konrad von Finckenstein, and Competition Commissioner Sheridan Scott have done little to address the lack of transparency issue, their counterparts in other countries have been far more proactive.  For example, earlier this year the Australian Competition and Consumer Commission released guidelines for ISPs when advertising their broadband services to "prevent consumers being misled as to the speeds achievable on various technologies."  The ACCC backed the guidelines with the threat of million dollar fines for those ISPs that fail to comply.

Net neutrality proponents and critics unquestionably remain far apart on many issues.  Indeed, a senior Bell executive recently acknowledged that the company would like to retain the right to establish a two-tier Internet where they can levy fees on both consumers and websites for the traffic that runs on their networks.  That proposition that strikes fear into the hearts of net neutrality advocates, such as emerging e-commerce companies and creators, who can ill-afford such additional costs. While bridging that divide will clearly require much discussion, tackling the lack of transparency provides a good starting point for addressing the new neutrality concerns that the Leger Marketing survey suggests are shared by the majority of Canadians.