As Canadians head to the polls, Internet and digital issues are unlikely to be top-of-mind for many voters. Each party has sprinkled its election platform with digital policies – the NDP emphasizes privacy, net neutrality and its opposition to the Trans Pacific Partnership, the Liberals focus on open government, and the Conservatives tout cyber-security – yet Internet and digital issues have played at best a minor role in the campaign. The early references to a Netflix tax or the debate over Bill C-51 have been largely lost in an election whose central issue seems primarily to be a referendum on ten years of Stephen Harper and the Conservative government.
A review of digital and Internet law in the 2015 election campaign involves a similar assessment on the past decade of privacy, copyright and telecom policy. The Conservatives once placed a heavy emphasis on Internet-friendly approach, crafting rules that were designed to attract popular support by encouraging telecom competition, greater flexibility for copyright, and consumer privacy protection. Yet toward the end of its mandate, the government shifted priorities and in the process seemed to forget about the Internet.
When the Conservatives were elected in 2006, their Internet policies largely reflected the interests of large lobby groups. Then Industry Minister Maxime Bernier made his mark by mandating a hands-off approach for telecom regulation, rejecting the notion that Canada’s telecom regulator should actively intervene on behalf of the public interest. Meanwhile, copyright policy mirrored restrictive U.S. rules, net neutrality reform was non-existent, and the government delayed any potential improvements to privacy law.
By 2009, the Conservatives began to change course. Telecom policy was transformed into a pro-consumer issue with spectrum set-asides for new competitors and a CRTC mandate to aggressively promote consumer interests without concern for opposition from the big incumbent providers. The government held a national copyright consultation that offered the chance for a fresh start, ultimately leading to a far more balanced copyright bill. And digital privacy emerged as a key policy issue with new privacy and anti-spam laws figuring prominently in a long-delayed national digital strategy.
The record from 2009 to 2013 features some impressive achievements. Yet in the closing two years of the Conservatives government, the policy approach changed yet again. Government efforts to entice a major new entrant into the Canadian market fell flat after Verizon dropped plans to move north, leaving it with little more than spectrum policy tinkering that might provide some long-term benefits but shows little sign of making a significant dent into Canada’s competitive environment for wireless services.
The copyright balance struck in 2012 had also shifted by 2015 with backroom lobbying resulting in a copyright term extension for sound recordings buried in a budget bill and the secretive Trans Pacific Partnership threatening to further extend copyright term and bring U.S. style takedown rules to Canada. Plans to support an international treaty for access for the blind was not prioritized and remains in limbo.
Moreover, the earlier pro-privacy position was dropped altogether with lawful access and privacy rules that paved the way for voluntary disclosure of personal information without court oversight, opposition to a Supreme Court of Canada decision restricting warrantless access to subscriber data, continuing co-operation with global surveillance initiatives revealed by Edward Snowden, and the swift passage of Bill C-51 without beefing up accountability and oversight protections.
Why did the Conservatives largely abandon a pro-Internet approach?
The answer may lie in the recognition that the mainstreaming of the Internet meant that the policy trade-offs were more challenging for a government with competing priorities. Copyright was transformed into trade policy when key concerns formed part of the TPP, while privacy increasingly involved security considerations.
Digital issues simply became “issues” and the concerns associated with the Internet and digital rights took a back seat to other considerations. As Canadians begin to look ahead on digital policies, whoever forms the next government will undoubtedly face the same complexities as it works to strike the right balance.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at email@example.com or online at www.michaelgeist.ca.