Evidence of meeting #82 for Access to Information, Privacy and Ethics in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was internet.
A recording is available from Parliament.
4:50 p.m.
Liberal
Frank Baylis Liberal Pierrefonds—Dollard, QC
That's a good example for commercial activity. What about information, news, things like that?
4:50 p.m.
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
There too, I think, the concern is that we see today on the Internet this incredible diversity of content out there. It's always striking that the biggest proponents of net neutrality, especially among some of the successful Internet companies, weren't always big, successful Internet companies. In many instances, they were the small players trying to become the large players, and they often make the case, and I think justifiably so, that if they tried to emerge in a non-neutral world, one in which the established players at the time could have used either their deep pockets or economic might, or whatever advantages they have, to consign them to a slow lane or make it more difficult for them to compete in the marketplace, they might have not emerged successfully.
The ability of the public to access, and for some of these newer news services to emerge, raises some of those same kinds of challenges.
December 6th, 2017 / 4:50 p.m.
Liberal
Frank Baylis Liberal Pierrefonds—Dollard, QC
You could theoretically in the worst-case scenario, and I'm not saying Canada would get there if we didn't have net neutrality, but you have authoritarian states that purposely say they don't want this kind of information going to their citizenship. You could theoretically have it so slow or so difficult that you're not blocking it, but as you said, à la Telus, you could block or you could get to this. Would that be the worst-case scenario?
4:50 p.m.
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
I think blocking would be the worst-case scenario, and as I've said, proposals are about to be put forward about content blocking agencies, so that worst-case scenario may become real relatively soon.
4:50 p.m.
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
I think that ability to slow down does have an impact though, so I made reference, for example, to the very early case with deep packet inspection at the CRTC. At that point, a lot of people were using things like BitTorrent to access sometimes authorized content and sometimes unauthorized content by dramatically slowing down the ability to access some of that content, which you ultimately found was very tough to compete with. If you were an independent documentary filmmaker and you were using BitTorrent as your mechanism to try to distribute your content to others essentially on a free basis, you'd find that your content might be slowed by some of the throttling that was taking place, and it's very tough to compete with services that aren't facing some of those same restrictions.
4:55 p.m.
Liberal
Frank Baylis Liberal Pierrefonds—Dollard, QC
To summarize, you're a very strong proponent of net neutrality, both from an economic perspective—to be fair to all companies—but also for the citizenry's access to information, that it not be decided what you get to read or not read depending on some big corporation.
4:55 p.m.
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
Absolutely.
4:55 p.m.
Conservative
4:55 p.m.
Conservative
Peter Kent Conservative Thornhill, ON
This is a huge topic. Isn't it possible that, as this conversation goes on and as—in Canada at least—the regulator and governments defend the principle of net neutrality, those who would corrupt or avoid it might do what we saw in cable over the years, where we got into bundling practices and negative options?
We could end up bundling technology requirements. A service provider might find ways of requiring you to buy a better modem to handle the higher speed. They might get around it in other ways. Is that an evolving possibility?
4:55 p.m.
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
Providers are going to try to compete in a myriad different ways, and they do. Sometimes that involves bundling, and it's why, in the wireless space, some of the newest players have really struggled to establish the kind of market share that successive governments had hoped they would in terms of trying to inject more competition into the wireless space.
One of the reasons is that when you have a large player that's able to offer up a quadruple or quintuple bundle, where they're selling you home phone services, cable TV services, Internet services, wireless services, and now various Internet-of-things device types of services with your watch or a range of other sorts of things, you often feel that you get locked into a particular provider.
There is no question that they will often use those advantages to their advantage. What distinguishes net neutrality is that it gets into this issue of how they manage the network and some of the freedoms we were just talking about that come out of that Internet. The safeguards that are needed there are critical.
That's not to say there isn't necessity for some regulations and safeguards in some of these other issues too. In the last couple of days we've had the CRTC ruling that moved to ensure that people can now unlock their phones with no fees. That's clearly designed to give people greater flexibility to move between providers, so they're not locked in as they have been for so long.
4:55 p.m.
Conservative
Peter Kent Conservative Thornhill, ON
In defending the principle of net neutrality, specifically in Canada, are Canadians who want content coming through U.S. providers that will not be regulated any longer going to pay a price in terms of not being able to access or being victimized by such discriminatory...?
4:55 p.m.
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
There are risks. I mentioned at least one that has already come up in the questions, which is that prospect of what happens when Canadian businesses try to compete in the U.S. market.
At a consumer level, their direct interaction with their ISP should not face a non-net neutral approach. It certainly should be the case that my service and your service at home treat all content equally. Where Canadians—and I would argue this is true for people around the world—will ultimately feel the pinch of this is where new services and new opportunities perhaps fail to emerge in the United States because they're simply unable to get off the ground in a really effective fashion due to their inability to pay for that fast lane.
What that system does for the benefit of the large carriers is really preserve the winners today at the expense of potential new innovators tomorrow.
4:55 p.m.
Conservative
Peter Kent Conservative Thornhill, ON
How do regulators enforce the law? How can they detect breaches of net neutrality?
4:55 p.m.
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
That's a great question. That is a shortcoming of our system. The system at the moment requires individuals to file complaints with the CRTC. Many people who find that services might be running slowly or are unable to access something often will not have the technical wherewithal to try to identify precisely why that's taking place. Sometimes it has nothing to do with net neutrality; their computer is slow, or their router is slow. There could be a range of different reasons for it.
By putting the onus on the public to identify these issues.... You've put your finger on an area we could certainly improve, which is doing a better job of enforcing the net neutrality rules. At the moment, it's a system whereby the CRTC will wait for complaints but does not proactively audit or examine any of the practices to ensure they're compliant with the law.
5 p.m.
Conservative
5 p.m.
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
I don't think we're ever going to get to the point where the majority of Canadians are able to turn into their own geek squad, where they can figure out precisely why something is running slowly, nor should they be expected to.
I think if we value net neutrality, and as mentioned we've heard consistently that we do, it's reasonable to expect that the CRTC more proactively audit in circumstances. We do that in the context of privacy, when we've given the Privacy Commissioner the power in PIPEDA to deal with complaints but also to proactively audit organizations. It seems to me it would be quite reasonable for the same approach to be taken here, where the CRTC proactively audits in some circumstances to ensure that network management meets the requirements under the law.
5 p.m.
Conservative
Peter Kent Conservative Thornhill, ON
Your recommendation of a net neutrality chapter in a future—if we get a future—NAFTA agreement, how realistic is that? How much of a priority should it be?
5 p.m.
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
I would say a couple of things. First, a provision in the larger chapter is more realistic than you might think. The challenge will be whether or not it has any teeth.
The digital trade chapter in NAFTA is, we are told, modelled on the TPP e-commerce chapter. They've renamed it digital trade, but it's basically or in many respects the same chapter. There was a net neutrality provision included in the TPP. It was very weak. That's why I would say that having general language doesn't achieve very much; it isn't all that helpful. Having something a little stronger would be quite helpful.
I would also note...and this comes directly out of the lead negotiators' discussion this week. They've made pretty good progress on digital trade with a couple of issues that are outstanding. We're looking for net neutrality. They're looking for an Internet intermediary safe harbour provision, similar to what they have in the United States, which also protects freedom of expression. I actually think it's long been a missing provision in Canada. It's the sort of thing that it would be to our advantage to craft a responsible provision consistent with what they're asking for.
I actually think there is room to negotiate and meet both our needs in that particular chapter.
5 p.m.
Conservative
5 p.m.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Thank you, Professor Geist, for being here. This is very informative.
It was President Trump who appointed Chairman Pai. Is that right?
5 p.m.
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
It was.
5 p.m.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Chairman Pai worked for Verizon as a lawyer who sued the FCC and is now the head of the FCC.
5 p.m.
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
Yes.
