Thanks very much. Good afternoon.
As you heard, my name is Michael Geist. I'm a law professor at the University of Ottawa, where I hold the Canada research chair in Internet and e-commerce law. I'm also a member of the school's centre for law, technology, and society. My areas of specialty include digital policy and intellectual property and privacy. As you heard, I've appeared many times before this committee and as always, I appear in a personal capacity representing only my own views.
I'm grateful to the committee for its commitment to privacy and access to information and its interest in how the issue of net neutrality may affect these issues. I propose to begin this briefing with an introduction to net neutrality, followed by some comments on recent events and then considerations of the intersection between net neutrality, privacy, and access.
I'll start by noting that Canada seemed lost when it came to Internet policy a little over a decade ago. Regardless of party, this isn't a partisan issue. Government showed scant interest in the technicalities of Internet services and the CRTC stood idly by, as leading Internet providers limited speeds of some applications, a practice known as traffic shaping, and mused openly about new fees for the right to transmit content to subscribers.
Those Internet policies are unrecognizable today, as Canada has emerged as a world leader in supporting net neutrality. At its heart, net neutrality means that all content and applications should be treated equally and that the choices made by Internet users should be free from ISP or telecom interference. Policies don't guarantee Internet success. No law can do that, but it signals a clear commitment to placing consumers and creators in the Internet driver's seat.
The foundation of Canadian policy lies in four CRTC decisions that address practices, such as managing Internet traffic to limit speeds for some applications or creating pricing plans at a so-called zero rate, so that certain content doesn't count against monthly data consumption caps. CRTC policies now restrict these practices by recognizing that net neutrality preserves the common carrier approach for ISPs and encourages marketplace competition and innovation that's based on price, speed, and the quality of networks.
The CRTC's approach also allows Canadians to file complaints about net neutrality violations, which they've done on occasion. The CRTC would then proceed to investigate and, in some instances, conduct hearings into some of the broader implications raised by the concern. The policies also provide for greater transparency of network management practices, which requires ISPs to disclose how they manage their networks and what their practices will mean for consumers' Internet use.
In recent weeks, we've seen Canadian leaders and regulators make their support for net neutrality clear. For example, Navdeep Bains, the ISED minister responded to the U.S. developments, which I'll talk about in just a couple of minutes, by affirming that “Canada will continue to stand for diversity and freedom of expression. Our government remains committed to the principles of net neutrality”. Canadian heritage minister Mélanie Joly has similarly endorsed net neutrality and emerged as a proponent.
It should be noted that some cultural groups have called on the government to abandon net neutrality by mandating preferential treatment for Canadian content. These recommendations have come as recently as last week. They were just posted online in the last day or two, as part of the CRTC consultation on the future of broadcasting.
However, Joly has affirmed that the principle remains at the core of Canadian cultural policy, noting that, “we will continue to champion the internet as a progressive force and an open space without barriers. As a government, we stand by the principle of net neutrality.”
In the United States, this has been a highly politicized issue and we see changes from chair to chair at the regulator. The same is not true in Canada. Canada's commitment to net neutrality has been similarly endorsed at the regulatory level. We have a new CRTC chair, Ian Scott. Just last month, he told an industry conference:
As companies continue to innovate in their offerings to Canadians, the CRTC will continue to ensure that Canada’s Internet neutrality provisions are respected. ...owners and operators of the country’s communications may not discriminate against content based on its origin or destination.
That's the Canadian situation.
As you know, the FCC, the U.S. telecommunications regulator, plans to roll back net neutrality regulations, which has sparked an immediate backlash from the Internet community. There are fears that the decision will turn the Internet in the U.S. into a cable-like service, which is dominated by the carriers, where only deep-pocketed giants can afford to pay new fees to keep their content in the fast lane.
That U.S. order, which would also block U.S. states from implementing their own versions of net neutrality, is set for a vote next week.
Canadian consumers may be shielded from the net neutrality abuses rolled back in the United States in their home Internet use, but I think the effects of the U.S. decision may still be felt here. Since Canadian traffic often transits through the United States, there are some concerns that Canadian data could be caught by non-neutral policies.
Moreover, Canadian Internet services that are hoping to attract U.S. customers and subscribers may face the same demands for payments to have their content delivered on the fast track.
Since the NAFTA renegotiations include a chapter on digital trade, I believe that Canadian negotiators should be pushing for the inclusion of a strong, enforceable, net neutrality provision in that agreement. In fact, earlier this week, the lead Canadian negotiator, Steve Verheul, told a Commons committee that Canada wants a net neutrality provision included in the digital trade chapter in NAFTA. I think that would be a good step, particularly if the provision has some real teeth.
Now it should be noted that there is a direct and important connection between net neutrality and privacy, and that's why this committee's briefing is apt. Canada has long recognized the dangers that would come from active monitoring of telecom and Internet users. Neutrality, whether in our telephone networks or our Internet networks, has always included a link to privacy.
For example, one of the early net neutrality concerns involved Internet telephony, voice over IP, services like Skype, that offer the prospect of cheaper, secure, encrypted communications in many instances. Yet some of the providers saw these services as a competitor, and there were reports of blockages or degrading of speeds to render the services less usable. That was true in the United States in a case known as Madison River, and true in Canada under some of the early net neutrality complaints. It's net neutrality rules that help ensure that doesn't happen.
Similarly, the first CRTC net neutrality decision, which was called “Internet traffic management practices” or how the ISPs manage their networks, included considerable discussion on carrier practices involving deep packet inspection, technology that allows them to examine the type of content that's running on their networks.
The technology raised significant privacy concerns, and the CRTC ultimately issued an order that “all primary ISPs, as a condition of providing retail Internet services, not...use for other purposes personal information collected for the purposes of traffic management and not...disclose such information.” In other words, the net neutrality rules they established under that decision established additional privacy safeguards around the information that they might collect through deep packet inspection. That was from the very first key net neutrality decision.
I would argue that net neutrality also has a strong connection to access to information. Just this week we saw reports that Bell plans to ask the CRTC to create a website blocking agency, which would develop block lists without court review, which highlights, I think, how carriers may interfere with access to content.
In a recent submission to the CRTC released just in the last couple of days, Bell linked their perceived need for blocking of unauthorized streaming sites and downloading services with the success of its CraveTV service, arguing that blocking access to those sites would result in hundreds of thousands of new subscribers. I think that claim is debatable, but what it highlights, from my perspective, is that the incentives to block content in carrier self-interest, particularly for the very large, vertically integrated companies, is very real.
Indeed, the very first Canadian net neutrality case involved Telus, which infamously blocked access during a labour dispute to a site called for Voices for Change. Telus maintains that it hasn't repeated the blocking approach, but the fact that it did so, and believed that it could exercise the power to do so, demonstrates why there is a need for clear legislative safeguards against content blocking.
David Lametti, the Parliament Secretary to the Minister of Innovation, Science and Economic Development, yesterday in the House of Commons told the House that “net neutrality is the critical issue of our times, much like freedom of the press and freedom of expression that came before it.”
I would say that, given the critical role played by the Internet in all walks of life and the exceptional power wielded by carriers, Mr. Lametti is right.
I look forward to your questions.
