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

Why Are Consumers Missing from the CRTC’s Online Video Ruling?

My weekly technology column (Toronto Star version, homepage version) notes that earlier this year, the Canadian Radio-Television and Telecommunications Commission launched a consultation into the policy implications of increasingly popular Internet-based video services such as Netflix. The consultation was the CRTC’s response to broadcaster and cultural groups including Bell Media, Astral Media, ACTRA, the Canadian Media Production Association, and SOCAN, who formed the Online Broadcasting Working Group to urge it to step up to the regulatory plate.

While many feared the CRTC would jump at the chance for new Internet regulation, last week it surprised observers by rightly concluding that its consultation generated plenty of rhetoric about the dangers of an unregulated over-the-top video services market, but no evidence of real harm. Given the lack of evidence and the absence of entry barriers for Canadian companies to establish their own competitive offerings, the CRTC decided to open a “watching brief” with the promise to revisit the issue in another fact-finding exercise next year. The CRTC decision concluded “it is best to allow the over-the-top market to continue evolving, better measurement tools to emerge and entities that contribute to the policy objectives of the Act to take advantage of the many opportunities in this new environment.”

This is close to what I suggested might happen back in July, when I noted “given the lack of actual evidence – this has been a fear-finding exercise rather than a fact-finding one – the CRTC should surely label this a watching brief and wait until 2014.” There is a big difference between waiting until the next scheduled new media review in 2014 and kick-starting another examination of the issue next May, however. The CRTC message to the Online Broadcasting Working Group is “if at first you don’t succeed, try, try again.” By opening the door to two reviews in the span of a one-year period, the Commission hold on new Internet regulation may only be a temporary reprieve.

October 11, 2011 — 8 comments — Columns