The CRTC has ruled that it will only permit website blocking in “exceptional circumstances” and only where doing so would further the objectives found in the Telecommunications Act. As yesterday’s post noted, even if the CRTC were to think that the terrible Bell coalition website blocking proposal is worth supporting, the plan falls outside the Commission’s stated rules on website blocking since the application fails to make the case that it furthers the objectives found in the Act.
In fact, not only does the Bell proposal fail to make the case that it furthers the Telecommunications Act objectives, but there is a far better argument that it undermines them. As noted yesterday, the Telecommunications Act identifies nine objectives:
(a) to facilitate the orderly development throughout Canada of a telecommunications system that serves to safeguard, enrich and strengthen the social and economic fabric of Canada and its regions;
(b) to render reliable and affordable telecommunications services of high quality accessible to Canadians in both urban and rural areas in all regions of Canada;
(c) to enhance the efficiency and competitiveness, at the national and international levels, of Canadian telecommunications;
(d) to promote the ownership and control of Canadian carriers by Canadians;
(e) to promote the use of Canadian transmission facilities for telecommunications within Canada and between Canada and points outside Canada;
(f) to foster increased reliance on market forces for the provision of telecommunications services and to ensure that regulation, where required, is efficient and effective;
(g) to stimulate research and development in Canada in the field of telecommunications and to encourage innovation in the provision of telecommunications services;
(h) to respond to the economic and social requirements of users of telecommunications services; and
(i) to contribute to the protection of the privacy of persons.
There are strong arguments that the Bell proposal undermines more than half of the Telecommunications Act’s objectives:
- Subsection (a) references the “orderly development throughout Canada” of the telecommunications system, but the creation of a blocking system applied to hundreds of ISPs and wireless carriers of all sizes across the country would undermine that goal as it would likely lead to the implementation of differing blocking technologies, inconsistent over-blocking of legitimate content, and a non-neutral Internet in Canada. Access to content could differ from ISP to ISP.
- Subsection (b) identifies reliability and affordability as objectives, but both would be undermined by website blocking. The reliability of the telecommunications services would be harmed by over-blocking of legitimate content and by the violation of net neutrality norms. The goal of better affordability would be undermined by the increased costs that would be passed along to subscribers to fund site blocking technologies and services.
- Subsection (c) focuses on competitiveness of telecommunications services, yet the website blocking plan would have an uneven impact: larger ISPs will face new costs but may find it easier to integrate into existing systems (some already block child pornography images), whereas hundreds of smaller ISPs would face significant new costs that would affect their marketplace competitiveness. In fact, while companies such as Bell would stand to gain from blocking with higher fees passed along to subscribers and reduced competition, smaller ISPs would face a difficult economic challenge, leaving all Canadians facing higher monthly Internet bills and reduced competition.
- Subsection (f) emphasizes the need for efficiency and reliance on market forces. As discussed last week in a post on why the plan is inconsistent with the CRTC Policy Direction, website blocking could not be more inconsistent with that objective. Indeed, with courts around the world concluding that site blocking is a disproportionate remedy, evidence that it is likely to lead to overblocking and is ineffective, and that it risks violating net neutrality and privacy rights, the plan fails to meet the Telecommunications Act objective of “efficient and effective” regulation.
- Subsection (h) speaks to the economic and social requirements of users of telecommunications services, but users of those services are largely absent from the proposal. Instead, broadcasters, broadcast distributors, movie theaters, and some creator groups seek to impose new restrictions on users in the form of a regulatory framework without court orders. If anything, the social requirements of users should include compliance with net neutrality, human rights, and privacy norms, a standard the Bell coalition proposal fails to meet.
- Subsection (i) focuses on contributing to privacy protection, but rather than enhancing privacy protection, the Bell coalition proposal puts it at greater risk, with the possibility of VPN blocking, incentives to monitor customer traffic, and the potential adoption of invasive site blocking technologies.
Yesterday’s post concluded by stating that “website blocking does not further the objectives under the Act and can be rejected by the CRTC on those grounds alone.” That is an understatement since not only does the proposal not further the objectives, it actively undermines them. The CRTC should reject the plan on those grounds alone.