Columns

CMA and MRIA Recommend Against Respecting iOptOut Requests

My weekly technology law column (Toronto Star version, Ottawa Citizen version, Vancouver Sun version, homepage version) focuses on the reaction to iOptOut.ca which includes advice from at least two Canadian associations to their members not to respect the legitimate opt-out requests of thousands of Canadians. I argue that this provides a good sense of what lies ahead this fall when the government-mandated list makes its long awaited debut. The iOptOut.ca site is based on a simple premise, namely that Canadian privacy law already gives Canadians the right to withdraw their consent over the use of their personal information (including phone numbers) for telemarketing calls. Visitors to the site are asked to enter their phone number (and email address if they wish) and to indicate their privacy preferences for nearly 150 organizations.

With a single click, the selected organizations each receive an opt-out request, enforceable for the moment through the complaint process under national privacy law. Once the do-not-call list is up and running, there will be a further enforcement mechanism – complete with financial penalties – for those organizations that do not respect the opt-out request. After only one week online, it has become readily apparent that the site has struck a chord with Canadians. More than 17,000 phone numbers have been registered, resulting in over 1.7 million opt-out requests. Interestingly, many users pick-and-choose their organizations, as over a quarter of all registrants do not check all available options.

April 8, 2008 — 11 comments — Columns

Bell’s ‘Throttling’ Plan a Threat to a Competitive Net

My weekly technology law column (Toronto Star version, Vancouver Sun version, Ottawa Citizen version, homepage version) focuses on the competition concerns raised by Bell's throttling plans. I begin by noting that the CRTC has long acknowledged that Canadians enjoy limited competition for high-speed Internet services. In response, it has supported independent ISPs by requiring incumbents like Bell to provide wholesale broadband Internet service at regulated rates. While it is difficult to price-compete – the Bell wholesale pricing creates an effective minimum price – independent ISPs such as Chatham-based Teksavvy and Ottawa’s National Capital Freenet have carved a niche in the Canadian market through attention to customer service, innovative bundling approaches, targeted network investments, and community ownership.

Last week, this important piece of the Canadian Internet connectivity puzzle learned that its future viability has been put at risk due to Bell's plans to "throttle" its wholesale services. Last year, Bell began installing "deep packet inspection" capabilities into its network. The DPI capabilities – which allow ISPs to identify the type of content that runs on their networks – did not go unnoticed by the independent ISPs since DPI is also used to "throttle" Internet content by scaling back the amount of bandwidth allocated to particular applications.

While Bell employed these throttling technologies with their own Sympatico customers, some independent ISPs sought assurances that it would not be applied to the wholesale services. Sources advise that Bell responded positively that its plans were limited to its own customers, consistent with its 2003 assurance to the CRTC that it would only engage in limiting bandwidth for wholesale services "in cases of troubleshooting or to protect the network infrastructure from congestion resulting from malfunctioning or mis-configured equipment or malicious hacking."

April 1, 2008 — 29 comments — Columns

The CBC’s Next Great Way To Distribute Content

My weekly technology law column (Toronto Star version, homepage version) focuses again on the CBC's decision to distribute the finale of Canada's Next Great Prime Minister without DRM on BitTorrent. The use of BitTorrent may come as a surprise to those who mistakenly equate file sharing solely with infringing activities. BitTorrent and other peer-to-peer technologies are finding increasing favour with legitimate businesses attracted to its ability to distribute content in an efficient, cost-effective fashion.

March 24, 2008 — 6 comments — Columns

Business in the Hotseat over Net Censorship

My weekly technology law column (Toronto Star version, Ottawa Citizen version, Vancouver Sun version, homepage version) focuses on the growth of Internet censorship and the accompanying pressure on the business community to do something about it. I begin by noting that as the Internet moved into the mainstream in the mid-1990s, John Gilmore, one of the founders of the Electronic Frontier Foundation, coined the phrase "the Internet interprets censorship as damage and routes around it."Gilmore’s comments were a reference to the architecture of the Internet, which was designed to ensure that information was delivered by the most efficient means possible and render attempts to block content nearly impossible. Yet years later, a growing number of countries seem determined to challenge Gilmore's maxim. China is the best known (as evidenced by recent events in Tibet), having implemented both a massive content filtering system that exerts control over external content and demanded that foreign Internet firms establish Chinese-versions of their services that abide by the government's requirements.

China's censorship system may be the most extensive, but it is not alone. The University of Toronto's OpenNet Initiative, a world leader in tracking state-sponsored Internet censorship, recently co-published Access Denied, a book that highlights its pervasive growth. The book notes that some countries control all public Internet services, thereby creating an easy pipeline to implementing filtering technologies. Countries such as Syria have sought to chill access to the Internet by requiring cybercafe owners to record the names and identification cards of clients. Others – including Egypt, Saudi Arabia, and Myanmar – have tried to censor content by arresting local bloggers who dare to post content that does not meet the approval of the government. In recent months, some countries have also tried to block access to widely popular sites on the basis of a small sample of offending content. For example, both Turkey and Thailand have briefly blocked access to YouTube due to offending videos, while the United Arab Emirates has blocked access to Facebook.

The growth of government-sponsored Internet censorship has fueled mounting pressure within the European Union and the United States to respond.

March 20, 2008 — 7 comments — Columns

Everybody is Jumping on the Levy Bandwagon

My weekly technology law column (Toronto Star version, Ottawa Citizen version, Vancouver Sun version, homepage version) focuses on the plethora of new levy proposals that have emerged that could significantly increase the costs to consumers for Internet, television, and new media services. While cultural and creator groups are the primary proponents of these new funding schemes, they are by no means alone as broadcasters, cable companies, and Internet service providers have jumped into the levy and tariff game.

The cultural group proposals have focused primarily on Internet services. The best-known is the Songwriters Association of Canada plan to fully legalize peer-to-peer file sharing of music by adding a $5 monthly charge to the cost of Internet access. That proposal has generated considerable debate, with many consumers expressing concern about a plan that would hit all Internet users, without regard for whether they engage in peer-to-peer file sharing.

Joining the SAC plan is a recent proposal that has garnered support from a handful of creator groups that includes the Canadian Film and Television Production Association, the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA), the Directors Guild of Canada, and Writers Guild of Canada. The proposal envisions the CRTC establishing a new mandatory ISP contribution of 2.5 percent of broadband revenue to help fund Canadian new media content creation.

Late last month, the groups released the results of a public opinion survey which they said found that "69 percent of Canadians believe that ISPs should be required to help fund the production of Canadian digital media content in the same way that cable and satellite TV providers are required to contribute a small percentage of their revenues to the production of Canadian television programs."

The proposals do not end there.

March 11, 2008 — 37 comments — Columns