Canada Stuck in the Slow Lane on Traffic Shaping Debate

My weekly technology law column (Toronto Star version, homepage version) focuses on the slow response of Canadian officials to the issue of traffic shaping.  Last fall, the Associated Press and the Electronic Frontier Foundation reported that Comcast, the largest cable provider in the United States, was actively interfering with network traffic by engaging in traffic shaping.  The practice – largely undisclosed by the company – resulted in reduced bandwidth for peer-to-peer file sharing applications and delayed the delivery of some Internet content. The revelations sparked an immediate outcry from the public and U.S. officials.  Class action lawyers filed lawsuits, members of Congress introduced legislation mandating greater transparency and neutral treatment of Internet content and applications, state law enforcement officials issued subpoenas demanding that Comcast turn over information on its network management practices, and the Federal Communications Commission, the national telecommunications regulator, launched hearings into the matter.

Last week, the FCC devoted a full day to the issue as companies such as Vuze – an online video provider that uses peer-to-peer technology – along with public interest groups argued that the Commission needed to use its regulatory muscle to ensure greater transparency in the broadband market and to preserve an open, non-discriminatory Internet. While the FCC established ten principles for network operators to ensure network neutrality in 2005, there is mounting pressure in the U.S. for it to do more.  Given that many believe that the Comcast’s practices violated the FCC principles, regulatory and legislative responses to the lack of transparency in ISP network management may be on the way.  

While the U.S. appears to be rapidly moving toward legislative and regulatory action, Canadian regulators appear stuck in the slow lane.

Indeed, Canadian Internet service providers have engaged in much the same conduct that has placed Comcast on the defensive, yet they have not faced any similar legal or regulatory repercussions. For example, a Rogers' executive told an industry meeting last fall that the company traffic shapes by limiting the percentage of bandwidth available for peer-to-peer file sharing.  Notwithstanding that acknowledgement, the company continues to shroud its practices in secrecy. Its website does not fully disclose its traffic shaping practices and company spokespeople have provided inconsistent explanations for what is happening behind the scenes.  The Canadian experience has even extended beyond questionable network management practices.  In 2005, telecommunications giant Telus blocked access to hundreds of websites for several days without a court order or judicial authorization.

In sharp contrast to the U.S., however, there has been near-complete inaction from Canadian regulators and politicians.  The Canadian Radio-television and Telecommunications Commission and its chair Konrad von Finckenstein could seize responsibility for this issue.  The Competition Bureau's Fair Business Practices Branch could investigate the lack of transparency with Canadian ISP services.  Industry Minister Jim Prentice could pursue net neutrality legislation or encourage the Industry Committee to conduct hearings on the issue.  Yet to date, with the notable exceptions of the 2006 Telecommunications Policy Review Panel Report (which recommended the insertion of a net neutrality provision into law) and last week's Canadian Heritage Committee Report on the CBC (which called on the CRTC to consider the issue), net neutrality concerns have been met with indifference or utter silence.

Although U.S. leaders have long embraced a hands-off regulatory approach to the Internet, they have now proclaimed themselves "willing and able" to intercede in cases of abusive, non-transparent network management.  Canadians might well ask why their leaders are seemingly unwilling to do the same.


  1. Darryl Moore says:

    We Need Net Neutrality
    I’m sure it’s been suggested before, but if anyone wants an idea of what the Internet would look like without Net Neutrality, you need look no further than cellular networks.

    With Cell networks content providers pay a premium to be allowed on the network, users don’t get choices as to the software they run [ link ] , and bandwidth price is far in excess of its cost. [ link ]

  2. the major reason that ISP\’s get away with traffic shaping (amongst other things) is there is no regulation, they are the gatekeepers and nobody is watching them.

    In the US at least the FCC still has the power to review and impose rules on the ISP\’s.
    The CRTC has taken a hands off approach.. and let the markets be damned

  3. I was wondering if anyone has a list of canadian ISPs that engage in P2P throtling or traffic shaping?

    Ive been noticing some serious slowdown while using P2P tech to get some of my videos out there. Curious if there is any info out there while I wait for a reply from the ISP rep.

  4. ISPs run the risk of making these higher bandwidth plans redundant to their customers who pay for them. Customers want high speeds and access to content yet the ISPs are still charging the same amount to these same customers while degrading the service so it’s not much good for anything but surfing a few websites and checking email from Grandma.

  5. Actually, Comcast wasn’t just traffic shaping; they were forging packets and actively sabotaging the connections. In what was essentially a man in the middle attack, Comcast would send terminate packets to both the seeder and downloader, making both parties believe that the other party had dropped the connection. Traffic shaping would be simply slowing the flow of certain packets, as opposed to the above practice.

    In any case, once encryption becomes widespread, the service providers won’t be able to tell what certain packets contain and won’t be able to slow the connection.

  6. Jim,

    Encrypting traffic isn’t really going to help that much. Traffic analysis can still determine the probable identity of a connection.

    For example, it’s pretty easy to spot when someone is using bittorrent, because they typically have several dozen connections open on unusual ports, and they are being used continuously. Compare that to someone who is just browsing the web; they might have half a dozen connections open, and they originate on port 80.

    In any case, Rogers has gotten around that processing intensive traffic analysis by simply throttling all encrypted traffic.


  7. P2P is necessary
    @James: Filesharing is not illegal. It is a very good way to distribute data such as video and other large files. The EU is currently spending $22 million (iirc) on filesharing. Not because they approve of piracy, but because it is the way of the future. If you are saying that bittorrent will be “shaped” then you are denying the video industry their need for bandwidth. It is simply much more efficient for you and I to connect our computers than it is to use a point source.

    I also don’t think it is quite correct to say that “Rogers has gotten around that processing intensive traffic analysis by simply throttling all encrypted traffic” because they won’t be able to get away with that for long. The market will take care of that. They will eventually have to face much pressure from the movie industry, banks, major corporations with VPNs, and who knows who else, maybe even the EU. I’d even be willing to argue a human rights issue on that one. There’s a limit to the number of law suits the want to deal with.

  8. I know sympatico in some places (including where I live) uses traffic shaping on “prime time” (which is basically 3pm to 1-2am) so that the total of transfer doesn’t go higher then 30k/s.

    Anyway, I’m just wondering what we can do to put pressure on ISPs so they stop doing this in Canada?

    If anyone replies, can you email me at

  9. @Ole Juul:

    I didn’t mean to suggest that file sharing was illegal; just that encrypting traffic is neither an ideal OR functional solution to protocol based throttling.

    Rogers has gotten around performing advanced traffic analysis by throttling all encrypted traffic. This can be a big pain as you pointed out (VPN is my particular bad experience). Maybe this won’t last, but as it stands, they have gotten around it.

    I think the ideal solution is to charge the customer per byte. That gets around all this annoying protocol specific throttling.

  10. Per byte
    @James: “I think the ideal solution is to charge the customer per byte”.

    I agree. That certainly solves the traffic shaping problem from the ISPs perspective. I think they don’t like that sort of thing because it interferes with their marketing tactics. Many people are not aware of “bandwith” or what it means. Bringing up the issue opens up a can of worms for the ISPs.

  11. VPN
    I am a programmer and data analyst and I work from home. I use a VPN to access all sort of servers and I do a lot of download/upload. This is how I survive and pay my bills. Throttling VPN connections it would means killing my job. Likely it seems that SHAW is not yet abusing this practice.

  12. I am curious if there is anything like a class action being discussed? And if not, why not?
    It appears to me that Rogers, Bell and the like are selling services which they are not delivering. That they are citing the illegality of “most” Bittorrent traffic as justification to use traffic throttling seems a poor substitute for upgrading their networks and providing the services they advertise to the customers who are paying for them.
    The move by Rogers to now throttle all encrypted traffic appears to me the perfect opportunity to create some legal precedent as it seems neither the CRTC nor the Legislature is motivated to protect end-user rights.