Columns

The CRTC’s Declaration of Independent ISP Independence

Last week, the Canadian Radio-television and Telecommunications Commission released its much-anticipated usage based billing decision. While the ruling only focused on the use of data caps (or UBB) as between Internet providers, the issue garnered national attention with over 500,000 Canadians signing a petition against Internet data caps and the government providing clear signals that it would overrule the Commission if it maintained its support for the practice.

My weekly technology law column (Toronto Star version, homepage version) notes the resulting decision seemed to cause considerable confusion as some headlines trumpeted a “Canadian compromise,” while others insisted that the CRTC had renewed support for UBB. Those headlines were wrong. The decision does not support UBB at the wholesale level (the retail market is another story) and the CRTC did not strike a compromise. Rather, it sided with the independent Internet providers by developing the framework the independents had long claimed was absent – one based on the freedom to compete.

November 21, 2011 — 13 comments — Columns

SOPA: All Your Internets Belong to US

The U.S. Congress is currently embroiled in a heated debated over the Stop Online Piracy Act (SOPA), proposed legislation that supporters argue is needed combat online infringement, but critics fear would create the “great firewall of the United States.” SOPA’s potential impact on the Internet and development of online services is enormous as it cuts across the lifeblood of the Internet and e-commerce in the effort to target websites that are characterized as being “dedicated to the theft of U.S. property.” This represents a new standard that many experts believe could capture hundreds of legitimate websites and services.

For those caught by the definition, the law envisions requiring Internet providers to block access to the sites, search engines to remove links from search results, payment intermediaries such as credit card companies and Paypal to cut off financial support, and Internet advertising companies to cease placing advertisements. While these measures have unsurprisingly raised concern among Internet companies and civil society groups (letters of concern from Internet companies, members of the US Congress, international civil liberties groups, and law professors), my weekly technology law column (Toronto Star version, homepage version) argues the jurisdictional implications demand far more attention. The U.S. approach is breathtakingly broad, effectively treating millions of websites and IP addresses as “domestic” for U.S. law purposes.

The long-arm of U.S. law manifests itself in at least five ways in the proposed legislation.

November 16, 2011 — 58 comments — Columns

Net Neutrality Enforcement Put to the Test

The enforcement of Canada’s net neutrality rules, which govern how Internet providers manage their networks, was in the spotlight earlier this year when documents obtained under the Access to Information Act revealed virtually all major Canadian ISPs have been the target of complaints, but there have been few, if any, consequences arising from the complaints process.

The documents painted a discouraging picture, with multiple complaints against Rogers Communications due to the throttling of online games going seemingly nowhere, while a complaint against satellite Internet provider Xplorenet languished for months until the Commission threatened to launch a public proceeding.

In the aftermath of document disclosures, my weekly technology column (Toronto Star version, homepage version) notes there has been slow but steady change.

November 8, 2011 — 8 comments — Columns

Anti-Spam Law in Limbo as Lobby Groups Seek New Exceptions

Last December, the government celebrated passing eight bills into law, including the long-delayed anti-spam bill. Years after a national task force recommended enacting anti-spam legislation, the Canadian bill finally established strict rules for electronic marketing and safeguards against the installation of unwanted software programs on personal computers, all backed by tough multi-million dollar penalties.

Then-Industry Minister Tony Clement promised that the law would “protect Canadian businesses and consumers from harmful and misleading online threats,” but nearly a year later, the law is in limbo, the victim of a fight over regulations that threaten to delay implementation for many more months.

Although support for anti-spam legislation would seemingly be uncontroversial, various business groups mounted a spirited attack against the bill during the legislative process, claiming requirements to obtain user consent before sending commercial email would create new barriers to doing business online. Passing the anti-spam legislation ultimately proved far more difficult than most anticipated with groups seeking to water down tough provisions and greatly expand the list of exceptions to the general rules on obtaining user consent.

Months later, my weekly technology law column (Toronto Star version, homepage version) reports it is dÃ©jÃ vu all over again as the government works to finalize the regulations for the anti-spam legislation and the same groups make many of the same arguments. A call for comment over the summer from both Industry Canada and the Canadian Radio-television and Telecommunications Commission (enforcement of the law is shared by the CRTC, Competition Bureau, and Privacy Commissioner of Canada) generated dozens of responses, most of which begin by congratulating the government on passing anti-spam legislation and then proceeded to urge significant amendments.

November 1, 2011 — 5 comments — Columns

Was Canada’s Open Government Delay Part of the Plan?

The Canadian government’s open government initiative was back in the spotlight this week with Treasury Board President Tony Clement discussing the issue at a speech in Ottawa. I wrote about the open government in my weekly technology law column (homepage version, Toronto Star version) noting that seven months later the initiative is gathering dust. As of Monday, the original website â€“ online at open.gc.ca â€“ still featured a photo of Day, who retired from politics just one week after the initial announcement. The site had been last updated on March 18, 2011, the same date as the policy announcement. The site was updated over the past couple of days.

While some delays due to the election call were understandable, seven months of inaction led skeptics to wonder whether the entire announcement was little more than a publicity stunt. The delays are particularly discouraging given Canada’s willingness to pressure others about the value of open government. Last month, Canada became one of 46 countries to join the Open Government Partnership, which is focused on the availability of information about governmental activities, supporting civic participation, and increasing access to new technologies for openness and accountability. A letter from Foreign Minister John Baird to U.S. Secretary of State Hillary Clinton confirming Canada’s participation noted the June Speech from the Throne that reaffirmed support for open data, open information, and open dialogue.

October 21, 2011 — 5 comments — Columns