Columns

Net Neutrality in Canada Still a Work in Progress

The release last week of the Canadian Radio-television and Telecommunications Commission's report on Internet traffic management – known as the net neutrality decision – attracted national attention. Canadians, Internet service providers, and politicians debated whether the regulator had struck the right balance in addressing how ISPs manage Internet traffic. While some headlines seemed to suggest that the CRTC has given Canada's ISPs the green light to do as they please, my weekly technology law column (Toronto Star version, homepage version) argues the reality is that the decision establishes several notable requirements and restrictions, but leaves the door open for further action from the government.

First, the commission adopted a new test to determine reasonable traffic management practices. Where a consumer complains, ISPs will be required to describe their practices, demonstrate their necessity, and establish that they discriminate as little as possible. The CRTC added that targeting specific applications or protocols may warrant investigation and slowing down time-sensitive traffic likely violates current Canadian law.

Second, the commission rejected arguments that the market would ensure ISPs provide adequate disclosure on how they manage their networks. Instead, it mandated full disclosure of traffic management practices, including information on when they occur, which applications are affected, and their impact on Internet speeds.

Third, the CRTC banned the use of personal information obtained through deep-packet inspection for anything other than traffic management purposes. By also prohibiting the disclosure of such information, the commission ensured that inspecting user traffic cannot be parlayed into marketing opportunities.

These conditions ensure that traffic management is not a free-for-all. The days of ISPs arguing they can do whatever they please on their networks – as some intimated during the summer hearing – are over.

October 26, 2009 — 26 comments — Columns

Canadian Universities Too Closed Minded on Open Access

This week is International Open Access Week with universities around the world taking stock of the emergence of open access as a critical part of research and innovation. The basic principle behind open access is to facilitate public access to research, particularly research funded by taxpayers. This can be achieved by publishing in an open access journal or by simply posting a copy of the research online.

In recent years, many countries have implemented legislative mandates that require researchers who accept public grants to make their published research results freely available online within a reasonable time period. While Canada has lagged, a growing number of funding agencies, including the Canadian Institutes of Health Research, the Canadian Cancer Society, and Genome Canada have adopted open access policies.

The result is unprecedented public access to cutting-edge research. There are now more than 4,000 peer-reviewed open access academic journals worldwide and more than 30 million articles freely available through Scientific Commons. An estimated 20 percent of the world’s medical literature is openly accessible within two years of first publication. Nearly ten percent is immediately available. Moreover, there is budding momentum behind open educational resources, or open access teaching materials. A growing number of governments foresee significant benefits – both economic and pedagogical – behind developing open educational resources that could supplement or replace conventional textbooks.

Notwithstanding the success stories, my weekly technology law column (Toronto Star version, homepage version) argues that two major barriers remain.

October 19, 2009 — 6 comments — Columns

Do-Not-Call List Undermined By Loopholes in the Law

This month marks the one-year anniversary of the launch of Canada's do-not-call list. Over the past 12 months, millions of Canadians have registered their numbers on the list and filed hundreds of thousands of complaints with the Canadian Radio-television and Telecommunications Commission, which is tasked with enforcing the law. While the CRTC has found itself subject to considerable criticism for investigating only a small percentage of complaints and levying just a handful of fines for do-not-call violations, my weekly technology law column (Toronto Star version, homepage version) notes that a review of tens of thousands of complaints obtained under the Access to Information Act reveals a potentially bigger problem.

Many of Canada's best-known companies have been the target of frequent complaints, yet are not subject to investigation due to the large number of exceptions found in the law. This has led to genuine dismay, with many people using a comment section in the complaint form to register their disappointment with the do-not-call list.

Working together with University of Ottawa students Sean Murtha and Frances Munn, I recently reviewed more than 60,000 complaints released by the CRTC. The complaints were lodged in late 2008 and early 2009 using the do-not-call list's Internet-based complaints mechanism. In each case, the complaint included all relevant information with the exception of the complainant's name and telephone number, which were excluded for privacy reasons. There were hundreds of complaints about automated calls promising cruise vacations or lawncare services. But the undisputed leader among reputable companies was Bell Canada, which alone was the subject of nearly one thousand complaints. In fact, the wireless sector had the distinction of taking the top three spots with Rogers and Telus ranking second and third respectively. There were also hundreds of complaints against Canada's top financial institutions and retailers including RBC, CIBC, Scotiabank, TD Canada Trust, and Sears.

October 13, 2009 — 23 comments — Columns

Lobbyist Pressure Focused on Watering Down Anti-Spam Bill

The introduction last spring of Bill C-27 – the Electronic Commerce Protection Act – represented the culmination of years of effort to address concerns that Canada is rapidly emerging as a spam haven. Industry Minister Tony Clement’s anti-spam bill has steadily made its way through the legislative process, with the Standing Committee on Industry likely to conduct its final "clause by clause" review over the next two weeks.

Although support for anti-spam legislation would seemingly be uncontroversial, my weekly technology law column (Toronto Star version, homepage version) notes that various business groups have mounted a spirited attack against the bill, claiming requirements to obtain to user consent before sending commercial email will create new barriers to doing business online. The Conservative MPs on the committee have remained supportive of the bill, yet Liberal MPs have expressed growing concern about some of the bill’s provisions.

A close examination reveals that the bill sets reasonable limits for online marketing consistent with laws found in countries such as Australia, New Zealand, and Japan. In fact, there are four major caveats to the consent requirement.

October 5, 2009 — 11 comments — Columns

Van Loan’s Misleading Claims: Case for Lawful Access Not Closed

The push for new Internet surveillance capabilities – dubbed the "lawful access" initiative – dates back to 1999, when government officials began crafting proposals to institute new surveillance technologies within Canadian networks along with additional legal powers to access surveillance and subscriber information. Over the past decade, lawful access has stalled despite public consultations, bills that have died on the order paper, and even a promise from former public safety minister Stockwell Day to avoid mandatory disclosure of personal information without court oversight. Last June, current Public Safety Minister Peter Van Loan tabled the latest lawful access legislative package. Much like its predecessors, the bill establishes new surveillance requirements for Internet service providers. In an about-face from the Day commitment however, it also features mandatory disclosure of customer information, including name, address, IP address, and email address upon request and without court oversight.

My weekly technology law column (Toronto Star version, Ottawa Citizen version, homepage version) notes that lawful access has long faced at least two significant barriers. The first involves ISP costs associated with installing new equipment and responding to disclosure requests. The government has attempted to address those concerns by promising to help pay the bills. It plans to provide some funding for new equipment and, in a little noticed provision, has opened the door to paying ISPs for providing customer name and address information to law enforcement authorities.

September 29, 2009 — 38 comments — Columns