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.
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
On the speed side, especially for some of the most popular ones, I would say no. Generally, it's not as if, on December 15, we'll see a two-tier Internet. It might take a bit of time for some of these to unfold.
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
In terms of speed, the reality is that many of the largest players ensure that they have Canadian-based servers to send out the data. They'll locate here. Netflix, for example, will co-locate in lots of ISPs to try to speed up and reduce the amount of bandwidth that gets used, and the like. There will be the ability, certainly for some of those large favourite services, to ensure that they can, in a sense, bypass anything that we've seen take place in the United States.
NDP
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
I worry about them, too. That's where the rubber will hit the road for some of those players who might struggle to really emerge.
Your other point about potential costs is a good one as well. It's certainly possible that, if this is what happens, at the end of the day we'll see price increases, because we all know that no matter where the bill happens along that chain, it's the consumers at the end of the day who are going to have to pay the freight.
Conservative
The Chair Conservative Bob Zimmer
Thank you, Mr. Geist.
Mr. Erskine-Smith is up next for seven minutes.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Thanks very much.
It's not the first issue and not the last issue that we are likely in disagreement with President Trump about.
I'm curious. We've had statements from government officials. You noted that it's not just the Liberal government, but the Conservative government previously, and you've heard questions from Mr. Cullen that suggest we're all on the same page in advocating for net neutrality.
Can you walk us through specifically where we protect net neutrality in legislation? Is it the CRTC Act? Is it the Telecommunications Act?
Can you walk the committee through what sections we're looking at where we're currently protecting net neutrality?
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
It's a good point. It is worth noting that some groups, especially in light of what we've seen in the United States, have called on the government to establish a clear-cut net neutrality provision in law. Given that the government has indicated that it plans to review both the Broadcasting Act and the Telecommunications Act, it would seem that there is an obvious opportunity to do that.
I referenced the CRTC's decisions and policies. That effectively is where we get our net neutrality rules from an operational perspective. There have been a number of decisions where the CRTC has provided guidance and guidelines on what they see as the law. The early ones on Internet traffic management practices included things I mentioned such as the disclosure requirements. It also established rules for examining different kinds of activities by ISPs to determine whether they were permissible.
More recently they concluded another case involving the so-called zero rating issue. Part of that provided even more fulsome discussion around the kinds of practices they would see as permissible and how to identify that.
Of course, the question becomes, what are they basing that on in law? I think that's what you were asking. You have provisions such as section 36 about not affecting content and you get the undue preference provisions and non-discrimination provisions. It really comes down to non-discrimination, no undue preference, and no altering of the content.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Presumably in the examples you mentioned, about where an ISP is already in the media game and might be even throttling traffic for Netflix or other streaming services, such as Spotify, or whatever the case might be, there has to be a Competition Bureau concern there as well, one would think, which is separate. It would be enforcing net neutrality but by virtue of a specific instance of violation of net neutrality.
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
You would think. The CRTC would say that the act gives them the ability to address the issue of undue preference, too.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Sure.
Are you one of the people, then, who would say the government ought to be putting this in legislation?
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
In terms of the discussion earlier around enforcement, if I had to pick the best thing we can do to improve the law, I would say improving some of the enforcement is probably more of a priority for me than getting a net neutrality provision, given the way it has unfolded. In fairness, we've seen in the United States that what we thought was well-entrenched policy can change.
December 6th, 2017 / 5:10 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Wouldn't they go together in some ways? I don't know all the powers that the CRTC might have to enforce the existing rules, but presumably putting something in legislation gives you an opportunity to give the authorities more teeth.
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
The question then becomes whether the enforcement structure that they've adopted is a function of limitations they're facing in the law or simply a decision that they would prefer to respond to complaints as to more proactively examine or audit someone's network where there's a reason to do so.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Following that train of thought, then, legislation aside, are there other ways you would suggest to this committee or to Canadians that we ought to be looking to better protect net neutrality in Canada, or are you fairly satisfied with the status quo?
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
We have rules that a lot of other countries look to as striking a pretty reasonable balance. I'm sometimes a bit befuddled at the controversy you see in the United States, both the politicization of it, given that it hasn't been political in the same way here, and also the notion that having these rules in place would somehow cause decreased investment or significant harms. That simply hasn't been the experience here, and it hasn't been the experience in other places.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
The United States is reversing course because of a change in presidency. Are there other countries, developed countries, that we would look to that have gone down this path of having net neutrality undermined and can we see the consequences of that?
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
You certainly do see other countries that have had issues come up from time to time. You see it certainly in the wireless area. We've seen it in Europe and other jurisdictions where there is some of the zero rating and concerns around what that zero rating would mean. In fact, some studies out of Europe point out that where there's a choice between zero-rated services and services that ultimately offer things in the hands of consumers to decide how they want to use their data, typically consumers end up with simply more data. You get to basically make your own choices about how you want to use your data, as opposed to being nudged or pushed in a particular direction.
I should quickly note that we've also seen the issue come up in developing countries. For example, India has done a lot of work on net neutrality. It actually originated first out of Netflix's proposal to offer up so-called free Internet services with particular carriers. Some would think, “Wow, isn't this great.” It turned out that there wasn't a whole lot of uptake, but there were real concerns about what that would mean for net neutrality and a lot of people arguing that this was a wrong-headed approach. Their regulator has also implemented all sorts of rules now that try to preserve and safeguard net neutrality.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
I only have a minute or so left.
Regarding website blocking, it occurs to me that some websites could be completely full of hate speech. Some websites could be full of other content that is illegal to be posting, but then you get more complicated situations.
Take torrents. There are legal torrents. There are illegal torrents. There are websites like the Pirate Bay that might principally traffic in more illegal torrents. There are streaming services that do the same. Can the government say no to this website, and yes to that website? Is government able to draw those clear guidelines for a regulator like the CRTC?
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
No, and the agency that Bell has in mind to help develop the block list wouldn't even be government. It would be largely comprised of the private sector. We already have a system in place for child pornography, which has always, I think, been seen as different from all the other examples you provided because it's illegal to view. There is blocking that takes place of child pornography images, and that's done without law, but it's done based on the fact that everybody agrees that it's harmful not just to distribute but also to view.
In the case of almost all this other content—lawful, potentially engaging in infringing activity, and stuff that really pushes the envelope at times—there is certainly the prospect of the courts becoming involved. We already have, under the Copyright Act, the ability to target sites that enable infringement and are hosted here in Canada. We have some of the toughest anti-piracy laws already in place for stuff that's hosted in Canada, but the idea—and this is what Bell is apparently about to propose—of putting forward an essentially private sector blocking agency that would create a list of stuff to be blocked, without the court ruling that it ought be blocked, should be a total non-starter.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
First they'll want the sites and then they'll want to block VPNs, and then they'll want to block—okay, I'm out of time.
Conservative
The Chair Conservative Bob Zimmer
We have three people who still want to ask questions. We have two for five minutes each, and one for three. That should take us right to the end. I might have to cut off the last person, but it should carry us there.
Mr. Tilson, you have five minutes.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
—so the three-minute guy is guaranteed to get some questions in.
