Island Linux Bits and Bytes of Technology

Mirko Bibic, Chief Regulatory Officer, Bell:

"With this decision, the Commission has rightly confirmed that network operators are in the best position to determine how to operate their networks effectively and efficiently, to allow fair and proportionate use of the Internet by all users."

Len Katz, Vice-Chair, CRTC:

"Someone told me Bell put out a press release that said the commission upheld its position that network management practices are a fundamental right of theirs. That's not what we said at all."

This morning, the CRTC issued its much-anticipated ruling in the CAIP v. Bell case, the first major case to test the legality of Internet throttling.  The Commission denied CAIP's application, ruling that Bell treated all of its customers (retail and wholesale) in the same throttled manner.  This points to the challenge in this case - it was not about discriminatory network practices per se, but rather about wholesale shaping in a specific context. 

Bell comes out a winner in this round. The Commission found that there was network congestion due to P2P usage and that some network management is required to address it.  Moreover, it rejected the competition concerns noting that there was no evidence that Bell's action had lessened competition and it concluded that reducing speeds does not rise to the level of controlling content.

While the CRTC's decision to permit Bell's throttling practices is disappointing in the short term - and seems to place Canada on a different track from the U.S. - the decision is not a total loss for net neutrality supporters as the Commission made a clear commitment to addressing the issue of net neutrality and network management in a formal proceeding in July 2009.  Indeed, it is important not to lose sight of how much has changed in the past year. 

Just over one year, I wrote a column noting the need for greater ISP transparency in the wake of Rogers' admission that it engaged in traffic shaping.  At the time, net neutrality was viewed as a fringe issue in Canada without much political traction.  In the span of 13 months, there has been a major CRTC case, a private member's bill on net neutrality, a rally on Parliament Hill, the emergence of BitTorrent as distribution tool for broadcast content, a more vocal business community supporting net neutrality, and a gradual shift of this issue into the political mainstream.  In the United States, the change has been even more dramatic - an FCC ruling on the throttling activities, proposed legislation, the shift of net neutrality to wireless, and a President-elect who has been outspoken on the need to preserve net neutrality.

In other words, today's CRTC decision is not the final word on net neutrality in Canada, but rather the first word on it.  The Commission itself has opened the door to broader hearings on the issue next year, which may come alongside the new media hearings that also offer the opportunity to raise net neutrality concerns.  Moreover, if the Commission comes to the conclusion that these practices are consistent with current Canadian law, there is the likelihood of growing calls from within Parliament to change the law.

A year ago, the net neutrality debate focused on whether rules were needed. Today, the debate is changing from whether there should rules on network management to what those rules should be.  In fact, the Commission notes that as part of the hearing it "will try to establish the criteria to be used in the event that specific traffic management practices need to be authorized."  There is an emerging consensus on the easy issues -  no content blocking and better transparency of network management practices (the CRTC today required Bell to provide its wholesale customers with advanced notice of its plans).  We are in the early stages of the more difficult questions of what constitutes reasonable network management practices and the opening of a formal proceeding puts those tougher questions squarely on the table.

Update: The NDP's Charlie Angus responds.  Coverage from the CBC, Globe, Toronto Star, and Ars Technica.

The Governor-General is currently reading the Speech from the Throne, which sets the forthcoming legislative agenda, in the Senate.  The speech unsurprisingly includes reference to copyright reform:

Cultural creativity and innovation are vital not only to a lively Canadian cultural life, but also to Canada’s economic future. Our Government will proceed with legislation to modernize Canada’s copyright laws and ensure stronger protection for intellectual property.

The speech disappointingly does not reference anti-spam legislation, despite a commitment to introduce anti-spam laws during the election campaign.

 

The CBC reports that the CRTC will release its much anticipated decision on Bell's throttling practices on Thursday morning.

The Ontario legislature this morning passed Bill 85, facilitating the creation of an "enhanced drivers' licence" that uses RFID.  I wrote about the bill yesterday.

Update: Media coverage from Canwest.

TorrentFreak reports that Stanford's Engineering Everywhere is using BitTorrent to distribute its course materials.

SaveOurNet.ca has launched a new campaign urging Canadians to write to the CRTC on net neutrality.

Robert Lutczyk, a local councillor in Oshawa, is claiming that he owns the copyright to the "University of Ontario Institute of Technology." [hat tip: FlackLife]

The NDP has announced their shadow cabinet with Charlie Angus tabbed as the critic for heritage, culture, and digital issues.

Stephen Taylor posts the first interview with new Industry Minister Tony Clement on copyright reform.  Clement positions himself as a part of the iPod generation, emphasizes the effects of new media, and keeps the door open to potential changes to Bill C-61.

This week the Ontario legislature will resume debate on Bill 85, proposed legislation that could lead to the creation of an "enhanced drivers licence" in the province (referred to as an EDL).  My weekly technology law column (Toronto Star version, homepage version)  notes that the introduction of the new licence - which will also be available as a photo card for non-drivers - has received little public attention despite the urgent concerns expressed by privacy commissioners and civil liberties groups.  Indeed, barring an unlikely change of plans, the legislation could be passed within a matter of days.

The primary impetus behind the EDL is the increased border security measures between Canada and the United States.  As the U.S. increased identity card requirements for entry into the country (passports are now required at most border crossings), government officials in both countries have sought to develop an alternative to the passport. The EDL, which will embed new technologies including a radio frequency identification device (RFID) within the card, is the outcome of that work.  While the enhanced card will be optional, it is expected that many residents may pay the extra fee for the EDL.  Moreover, Ontarians will not be alone in this regard as other provinces and U.S. states have similar plans.  As Ontario moves closer to an EDL with this new legislation, the concern from the privacy and civil liberties communities - who point to three overarching concerns - have continued to mount.

The first concern is largely procedural.  The introduction of the EDL is viewed as an important development with significant implications for personal privacy.  However, few have participated in a consultation process and the legislative committee considering the proposed legislation allocated limited time to debate and discussion.

The second concern stems from the larger implications of the EDL.  Although the new card is optional, some experts view it as a major step toward a national identity card.  National ID cards have generated heated debate in the past with fears about the privacy and security implications of such schemes.  In fact, after a failed attempt to introduce ID cards in the U.S. under the REAL ID program, some officials have acknowledged that enhanced drivers licences may ultimately serve the same purpose.

The third issue is by far the most important - the privacy implications associated with the use of biometric screening and the embedding RFID tags in the licences.  RFID tags are tiny tracking devices that use radio waves to emit information to an RFID reader. While RFIDs have been innocuously used for inventory management with containerized shipping in the past, their use on identification cards raises a host of privacy concerns.

Earlier this year Canada's federal, provincial, and territorial privacy commissioners issued a joint statement expressing "their significant concerns about privacy and security aspects of EDL programs."  The Commissioners pointed to the long-term retention of Canadian driver data in the U.S., the lack of program oversight, and the use of insecure RFID technology.

Research into the use of RFID has revealed that they are vulnerable to snooping and copying, which may open the door to cases of identity theft or to surreptitious surveillance.  The Ontario government notes that the RFID tag will only contain a numerical identifier (rather than a full personal profile), yet access to the identifier could open the door to misuse.

To guard against unintended access to card information, an RFID with an "on/off" switch could be used.  To date, the government has rejected proposals to use RFIDs with that more updated technology, instead supporting the use of "protective sleeve" that it argues will guard against unwanted surveillance.

Facilitating faster and more secure border controls is unquestionably a worthwhile goal.  Rather than introduce a flawed licence, Ontario Transport Minister Jim Bradley should put the brakes on Bill 85 by first addressing the lingering privacy and security concerns.

Statistics Canada is out today with new data that shows e-commerce sales in Canada rose significantly between 2005 and 2007.

eMusic has lost a CIRA domain name dispute resolution case over emusic.ca.  The domain was registered in 2001.

David Canton's latest column in the London Free Press warns government about being careful what is wishes for on copyright.

A Calgary man has become the first person convicted under the Criminal Code's new anti-camcording provision.  The man received a $1,495 fine and was placed on probation for one year.  He is also prohibited from possessing any video recording equipment outside his home during the probation.  The Canadian Motion Pictures Distributors Association had hoped for jail time.

The Liberals have named their shadow cabinet for the upcoming parliamentary session.  Gerard Kennedy (who supported the copyright pledge) will be the Industry critic.  Hedy Fry, who conducted roundtables on copyright over the summer, takes over as Canadian Heritage critic.

The Federal Court of Appeal has upheld an earlier decision ordering eBay to provide information on Canadian power sellers.  The Globe and Mail reports that the Canadian Revenue Agency plans to escalate its investigation in light of the decision.  A key part of the case turns on the fact that the requested information is located on servers outside the country.  This leads the court to discuss concerns associated with Internet jurisdiction and cloud computing, with it arriving at the view that for the purposes of the Income Tax Act, the availability of electronic documents on computer servers located anywhere in the world can be treated as located in Canada.  It notes that:

"it makes no sense in my view to insist that information stored on servers outside Canada is as a matter of law located outside Canada for the purpose of section 231.6 because it has not been downloaded. Who, after all, goes to the site of servers in order to read the information stored on them?"

While this conclusion may be limited to the specific Income Tax Act provision, the concept that the mere accessibility to an electronic document (wherever located) can be treated as being located in Canada could have enormous implications for many other areas of the law if there were attempts to extend the analysis.

The Canadian government has re-launched its consultation on the Anti-Counterfeiting Trade Agreement.  The last consultation was conducted in the spring.  While the government did not release the results of that consultation, I recently reported on the findings based on documents obtained under the Access to Information Act.

The new consultation will be treated as ongoing, meaning that there is no fixed deadline for submissions.  The government notes that responses to this consultation may be made available to the public.  While it is good that the government is open to public input on ACTA, this new approach raises at least two concerns.  First, it has provided no new information about ACTA, effectively asking Canadians to comment on a treaty that they know virtually nothing about (almost all public information comes by way of leaks).  Second, the rolling consultation may simply allow the government to claim that it has continuously consulted the public, while knowing that the response will be ad-hoc and (by virtue of the lack of information) uninformed. What is needed is more public information about ACTA.  Other countries have brought together all stakeholders for more open and transparent discussions about the treaty and the negotiations.  Similar open discussions in Canada are long overdue.

TVO, Ontario's public broadcaster, has announced plans to develop a dedicated YouTube channel featuring its programming and involving a revenue sharing partnership.

Billboard runs a story today titled Canadian Biz Raises Concerns About Government Appointment.  The article features music industry criticisms of new Canadian Heritage Minister James Moore, with comments of the "fox running the chicken house" and that the appointment is "a kick in the head of Quebec for not supporting Harper."  Those unwarranted criticisms suggest that Moore will not be sensitive to music industry demands since he has a broadcasting background and is not from Quebec.

Both of these criticisms are off-the-mark.  First, a broadcast background increasingly appears to be a pre-requisite for the position - Josee Verner, Bev Oda, and Liza Frulla all came from the broadcast industry and no one would accuse them of siding against the music industry.  Second, the notion that a Heritage minister must come from Quebec is also wrong - Sheila Copps is widely viewed as the most influential Heritage minister in recent times and she was from Hamilton.

The reality is that it is far too early to cast judgment on the appointment.  
Moore has indicated that the culture cuts will not be altered and the National Portrait Gallery will not be going ahead, but those are decisions that come from the top, not from the Minister.  The government has also begun to shift the Canadian Heritage mandate, by moving multiculturalism to the Immigration department and by emphasizing the sport element of the department ahead of the 2010 Winter Olympics. 

On the big cultural policy issues such as copyright, Moore has a chance to bring his own perspective and influence to the file by considering changes to the C-61 approach.  Perhaps that is what the industry really fears - not a Minister that comes from B.C. and worked in the radio business, but rather a Minister who engages in the copyright file by doing more than just following senior officials' advice.