Information & Ethics Committee on Dec. 6th, 2017

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Okay.

Verizon blocked Google Wallet at one point, a competitor in some fashion. They simply said that if you're on the Verizon network and you try to access your Google Wallet, you just can't.

I liked your hopefulness that a president and a Congress that just took what I would say is a pretty radical direction in terms of their digital economy—and highly protectionist—is now going to include a piece in a chapter in a negotiation over which they have a whole bunch of radical anti-trade agenda items.... I like your hopefulness, but I don't share it based on what I've seen so far.

I have a question for you. I think neither of us are trade lawyers. Does this not strike you as a non-tariff trade barrier? If you have a Canadian Shopify or if you have a Hootsuite that is slowed down and effectively blocked from expanding their business into the U.S. because there's a competitor with a similar application but is an ISP provider, a critically integrated company that just simply says that if you're trying to get on your Hootsuite, you just can't, or it takes forever, or it just never loads, is that not another way of throwing up a trade barrier in the digital world?

[Dr. Michael Geist]

Yes. That's an interesting point.

To come back to the trade issue, certainly taking a look at what we've seen most recently, it's easy to be pessimistic for sure. I do think that the backlash we've seen in the United States and the support for net neutrality that still exists amongst many in Congress, and there's always the prospect of political change—

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

That's a different federal agency.

[Dr. Michael Geist]

As these negotiations unfold, you never know.

I think you've highlighted a really interesting issue that extends beyond just neutrality. That is the extent to which we do see digital policies potentially characterized or actually having the effect of a trade barrier. That same discussion has come up quite frequently in the privacy context, where the argument has at times been that certain privacy protections can be viewed or restrictions on data transfers can be viewed as similarly creating trade restrictions.

You might make the same argument even with the reference that I just made around safe harbours, where the inability for large intermediaries to have the same safe harbours that they have at home creates challenges for them in terms of their ability to do business elsewhere.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

In these trade negotiations that we're having, not just with the United States but with the TPP region, with China, if the current form of protection of net neutrality is, as you've described, weak, one could imagine not just anti-competitive practices from our trading partners where they block Canadian digital commerce from taking place, but also political blocking. We know the frustrations for human rights activists in China. Try googling “Tiananmen Square” if you're in Beijing. There's a government policy there.

If we're not insistent on net neutrality both as a commercial and a political interest, if you're describing the current TPP chapter as weak, is the EU? Where would we look to in terms of protection of net neutrality in a trade negotiation that we could hold up as a high standard for Canada to try to meet?

[Dr. Michael Geist]

I don't think we can yet.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

We can't. Can even the Europeans?

[Dr. Michael Geist]

No.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Portugal got out of it.

[Dr. Michael Geist]

There isn't a digital e-commerce chapter in CETA, for example.

TPP was really the first to try to do this, although it is worth noting that the World Trade Organization discussions that are set to take place in Argentina next week include a focus on whether the WTO will become more engaged in e-commerce. We are starting to see this issue expand.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

It could be good or bad.

[Dr. Michael Geist]

The fact that they are excluding some major digital civil liberties groups suggests it's pretty bad.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Who is?

[Dr. Michael Geist]

Argentina, as part of the WTO discussions, but that's an aside.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

It's an aside, but it's not. Part of net neutrality is based on that philosophy of what the Internet is supposed to be: the free exchange of thoughts, even thoughts uncomfortable for the government wherever the government takes place.

[Dr. Michael Geist]

Right. We're in agreement.

I would note that I don't think it's net neutrality alone that addresses some of these issues.

I'm particularly focused on the double-edged sword of open Internet provisions around data transfer and data localization, which are included also in TPP and which the U.S. wants. Data transfer issues and data localization are good examples of the types of things that in the right hands can be really useful to help protect privacy. We want to ensure in Canada, for example, that if the B.C. government wants to establish certain privacy protections for health data, they ought to be able to do that and require that it be kept within the jurisdiction.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

The servers would be in Canada and that kind of thing.

[Dr. Michael Geist]

Exactly.

The problem comes down to some of the regimes that you were just referencing who might use some of those same kinds of provisions to say, “We're actually going to mandate that the data is localized here.” Their purposes are not to protect user privacy—

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

It's to protect themselves.

[Dr. Michael Geist]

—but for censorship purposes or other kinds of purposes.

The challenge becomes, how do we establish the privacy safeguards with these provisions while not losing the benefits of open Internet provisions in these same agreements?

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I want to get back to the impact on Canadian consumers of where the FCC is going.

Their vote is soon, is it not?

[Dr. Michael Geist]

It will be next week.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Next week... Oh, boy.

In your estimation, is it likely to pass?

[Dr. Michael Geist]

Yes.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

One chairman has said that they're not happy, but the rest who were appointed are following orders.

The question around Canadian consumers is both on data streaming because of our interconnectivity, as well as American sites that Canadians access. Suddenly with those sites, because of some future not a trade war but a competitive war between two companies, often a large one and a small one, won't we see both the potential of traffic streaming through the U.S. and coming back into Canada slowing if this goes through?

Could Canadians not see some of their favourite sites suddenly affected either by speed or by new pricing that would show up in their bill, that if they want a certain app, they have to pay another $5 and bundle it up in order to stream that content?