Lawful access, the government’s planned legislation on Internet surveillance, has generated considerable attention over the past few days as the government decided against including it in its first omnibus crime bill. That decision generated media coverage
that the government backed down in the face of a 70,000 signature online petition, and a debate in the House of Commons in which Public Safety Minister Vic Toews stated
that warrantless online wiretapping is not planned. While I recognize these developments feel like a cause for celebration, I fear there is a major problem developing as too much of this discussion doesn’t actually involve the real lawful access.
First, the omission of lawful access from Bill C-10 does not mean lawful access is dead or defeated. It is only delayed as Justice officials have indicated that the government is “committed to reintroducing” the lawful access measures. In fact, yesterday Toews confirmed again “the legislation will come.” The exclusion from the omnibus crime bill is definitely a step in the right direction – it should allow for the committee hearings that have never happened despite several attempts to pass lawful access – but lawful access will still be introduced and presumably passed at some point in the future.
Second, the debate has unfortunately veered into concerns over lawful access that don’t reflect reality.
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This past summer’s usage based billing hearing featured a critical moment when CRTC Vice-Chair Len Katz asked a question of independent ISPs that made it clear the commissioners were finally getting it. Katz started from the following premise
I guess I come from the position that we, the Commission, have already recognized there is a need to create competition, more competition in order to protect Canadians, and facilities-based competition is not yet here. So it’s our job to find a vehicle to create that competition and, in the simplest terms, it is to create an environment where broadband would be made available to a third party through a lease arrangement.
The acknowledgement about the state of Canadian competition and the responsibility of the regulator to address the issue was long overdue. While the UBB decision is still forthcoming, Katz’s comments provide some reason for optimism. Yesterday’s CRTC vertical integration decision contained a similar statement that offered a strong indication that the Commission got the concerns associated with vertically integrated media companies that can use their market power in a manner that harms consumer choice :
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David Ellis has a must-read post on Rogers game throttling and the lack of action by the CRTC. The post comes as the CRTC prepares to issue updated guidelines on net neutrality complaints.
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