Appeared in the Toronto Star on January 28, 2008 as The Dangers of 'Locking Down' the Internet
Appeared in the Ottawa Citizen on January 29, 2008 as New Strategy Emerges to Change the Locks to Police Online Content
Appeared in the BBC on January 29, 2008 as ISPs New Role in Network Control

As digital technologies and the Internet began to emerge in the mid-1990s, many content companies responded by betting on the ability of technological protection measures to re-assert the control that was rapidly slipping from their grasp.  The vision of control through technology required considerable coordination – the insertion of encryption on content distributed to consumers, cooperation from electronics makers to respect the technological limitations within their products, and new legal provisions to prohibit attempts to pick the new digital locks.

A decade later, the strategy lies in tatters.  Many content owners have dropped digital locks after alienating disgruntled consumers fed up with their inability to freely use their personal property.  Electronics manufacturers have similarly rebelled, frustrated at the imposition of artificial limitations that constrain their products and profitability.  To top it off, the U.S architect of the legal strategy last year acknowledged that the legislative initiatives to support the digital lock approach have failed.

In recent months, a new strategy has begun to emerge.  With the industry gradually admitting that locking down content does not work, it has now dangerously shifted toward locking down the Internet.

The Internet locks approach envisions requiring Internet service providers to install filtering and content monitoring technologies within their networks. ISPs would then become private network police, actively monitoring for content that might infringe copyright and stopping it from reaching subscribers' computers.

The support for locking down the Internet revives an old debate – the appropriate role and responsibility of ISPs for the activities that take place on their networks.  As the content owners were promoting legal protection for digital locks in the 1990s, the ISPs were supporting legal frameworks that treated them as the equivalent of common carriers that transferred data across their networks without regard for the content itself.

While that approach ensured that ISPs did not take an active role in monitoring or filtering Internet-based activity, the recent move toward a two-tiered Internet – one in which the ISPs themselves dream of distinguishing between different content as a new revenue source – revived the notion that ISPs could be called upon to play a more active role in monitoring and blocking content.

With content owners frustrated at the failure of digital locks, last year they seized on this by renewing their focus on the role of the ISP.  This movement has been most prominent in Europe, where last summer a Belgian court ordered an ISP to block access to a site alleged to contain copyright infringing materials.  

More recently, French President Nicolas Sarkozy unveiled a plan that would mandate country-wide ISP filtering of copyright infringing content.  Although a similar pan-European proposal was defeated earlier this month, few believe that the issue is dead, particularly given the International Federation of the Phonographic Industry's claim last Thursday that 2008 will be the year of greater ISP responsibility.

Content filtering plans have also begun to emerge in North America. Large U.S. ISPs such as AT&T have inexplicably promised to develop new content filters on their networks and are discussing an implementation plan with content owners.

Could a similar content blocking approach wind its way north?

Late last week, the Canadian Recording Industry Association stated that it presently is not seeking provisions "related to content filtering or termination of repeat offenders."  That provides a measure of reassurance, yet some cultural groups are openly eyeing content filters as a mechanism to adapt Canadian content rules to the online environment, while others have expressed strong support for legal rules that force ISPs to accept heightened "responsibility" for the conduct of their subscribers.

In light of this pressure, some fear that mandatory content blocking could sneak into forthcoming legislation, despite the likelihood that such laws would face constitutional challenges and run the risk of tarring Canada as the home of a censored Internet.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.