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Archive for January, 2013

Press Pause: Why the CRTC Should Delay the Bell-Astral Round 2 Hearings

My column for the Globe and Mail today argues that the CRTC should take it’s time before putting the 2nd set of hearings into Bell’s proposed acquisition of Astral Media in motion.

The column was prompted by comments made a few weeks back, when BCE indicated that it had hope the Canadian Radio-television and Telecommunications Commission might give special fast-track treatment to its bid for Astral Media now that we’re going over things for the second time, “abbreviated hearings” it called them.

The CRTC should do nothing of the sort and, in fact, hold off for a while before doing anything at all, because the tools the regulator will rely on to assess the transaction are not up to the task.

This second-kick-at-the-can strategy that BCE wheeled out after the CRTC first rejected the deal last October (see here , here and here), is highly unusual. To the best of my knowledge, nothing like this has ever been done before. There is nothing routine about this transaction and, thus, it is hardly worthy of being fast-tracked.

Not least because the thresholds set in the CRTC’s 2008 Diversity of Voices decision (see para 87) are fundamentally flawed, and should be scrapped and new ones put into place before any review of media ownership transactions on the scale of the Bell-Astral deal gets out of the gates.

The oft-repeated idea that any merger or acquisition should automatically be approved if it results in the combined entity having under 35 per cent of the total TV market creates more problems than it solves (see here, here and here).

The 35 per cent guideline was imported from the standards set by the Competition Bureau in 2003 for reviewing mergers and acquisitions in banking, and form a weak standard when it comes to media diversity. Rules for banks balance competition with the stability of the national economy. Media concentration rules are about fostering the maximum amount of diversity feasible and a free press fit for democracy.

Even worse, adopting the ill-fitting 35 per cent guide, the CRTC cherry-picked the weakest half of the Competition Bureau’s two-part rule for assessing bank mergers.

The second part of the Competition Bureau’s guidelines suggests that there is a problem of market power when any merger or acquisition results in the top four firms controlling more than 65 per cent of the market. The share of the big four – Bell, Shaw, CBC, Rogers – today is already roughly 81 per cent for the total TV programming market – well-over the Competition Bureau’s standards. If Bell does get the green light to acquire Astral Media, it would rise to just under 90 per cent. This reason alone is enough to pause and reflect.

As the Competition Bureau clearly stated:

“If the sum of the merging firms’ pre-merger market shares is below 35 per cent, there are likely to be sufficient products and suppliers to which consumers can turn in response to any attempt by the merged entity to exercise market power. If the four-firm concentration level is below 65 per cent, then co-ordination among firms in the market is likely to be too difficult to raise competition concerns (para 47).”

Conversely, when a single firm’s combined market share tops 35 per cent its ability to exercise dominant market power is just too great, while when the top four control more than 65 per cent of the market, the potential for them too collude rather than compete vigorously in the marketplace becomes unacceptably high as well.

Also, the guidelines set out in the Diversity of Voices ruling did not anticipate the extent to which vertical integration would come to reign supreme across the entire sweep of the telecoms, media and internet in just a few years. When the new rules were created in 2008, Bell had sold down its controlling stake in CTV and was pretty much out of the TV programming business. The three vertically integrated conglomerates – Shaw, Rogers and Quebecor – at the time accounted for just 43 per cent of the total TV business (delivery and programming combined).

By 2011, Bell had returned to the fold by re-buying CTV; Shaw had bulked up by taking over Global from the bankrupt Canwest. Four vertically integrated telecom, media and internet giants now accounted for more than three quarters of the TV market: Shaw, Bell, Rogers and QMI, in that order. Toss Astral Media into the mix – the ninth largest media firm in the country – and the number rises closer to 80 per cent.

I am quite sure that former CRTC head Konrad von Finckenstein, never anticipated these conditions. A five-year-old 35 per cent threshold is no longer some kind of magic number upon which the Bell-Astral deal should turn come decision time.

We should also remember that not just the CRTC, but Canadians in general did not like the original Bell-Astral deal. In fact, 60 per cent opposed the deal.

Some may brush that aside as anti-capitalist populism, but the fact is, such a stance is the norm and when you probe the data further in such surveys, we find that the more educated the respondent is, the more likely they are to spurn any deal that appreciably changes the scales in favour of fewer choices and more concentration.

This is the impulse of a democratic culture. It should not be treated lightly, or dismissed with scorn.

It seems to me to be only prudent that the CRTC takes whatever time it needs to ensure that the tools it will use in Bell-Astral Round Two are up to the task. Until they are, Bell and Astral should step back and get in line rather than raising the possibility of fast-tracking this thing.

This isn’t just about Bell Astral; it’s about the rules of the road and ensuring that the media ecology in this country comes as close to embodying democratic ideals as is humanly and politically possible.

Voltage’s Shakedown of TekSavvy, Part III: the Fight for a Competitive and Democratic Internet

Over the past few weeks debate has roiled over Voltage’s mass copyright litigation scheme directed at TekSavvy users. This has many wondering whether the indy ISP has done enough to thwart the disclosure of subscriber identification linked to about two thousand IP addresses that Voltage alleges have been used to illegally share films and tv programs the company owns the rights for.

Here I want to add a few more thoughts to my previous posts on the topic (see here and here). The main aim is to provide a crisp distillation of the ultimate issues at stake, the benefits of TekSavvy’s approach so far and why I still believe that TekSavvy ought to directly oppose Voltage’s motion.

First, it is unequivocal that relative to what other ISPs in Canada have done, TekSavvy is in a league of its own. Other than Telus and Shaw in the precedent setting BMG case of 2004, only TekSavvy has raised as many hurdles to companies such as Voltage who seek to have ISPs turn over subscribers’ identification linked to IP addresses that are accused of being used for illegal file sharing purposes (see Howard Knopf’s posts on this point here and here).

In BMG, only Shaw and Telus led the charge against using ISPs as a means of getting to subscribers behind the IP addresses being sought. Videotron actively sided with the recorded music industry, while Bell and Rogers waffled. Fast forward to 2011, when Voltage launched a similar case (The Hurt Locker case), only to face zero opposition from the three incumbent ISPs targeted for the 29 IP addresses being sought: Bell, Cogeco and Videotron. Indeed, the three ISPs agreed to not show up in court at all.

Last year, Canadian film and tv producer and distributer NGN productions targeted four smaller ISPs, with much the same results: Distributel, Access Cooperative, ACN and 3 Web. All caved, and we hardly heard a peep about these events. Thus, compared to its counterparts, TekSavvy shines.

TekSavvy’s stance also lines-up well with international best practices and obligations of ISPs and digital intermediaries when it comes to protecting subscribers’ speech and privacy rights, as can be seen when we look at the Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression prepared for the United Nations Human Rights Council by Frank La Rue in 2011. As LaRue’s Report states,

To avoid infringing the right to freedom of expression and the right to privacy of Internet users, the Special Rapporteur recommends intermediaries to: only implement restrictions to these rights after judicial intervention; be transparent to the user involved about measures taken, and where applicable to the wider public; provide, if possible, forewarning to users before the implementation of restrictive measures; and minimize the impact of restrictions strictly to the content involved. Finally, there must be effective remedies for affected users, including the possibility of appeal through the procedures provided by the intermediary and by a competent judicial authority (para 76, page 20).

In short, TekSavvy’s actions not only shine relative to most of its Canadian counterparts, they appear to be in line with international norms regarding speech and privacy rights. Still, however, there are three points upon which we can still reasonably ask for more.

First, the LaRue report puts a lot of weight on proper legal proceedings taking place before any limits to speech and privacy are implemented. While TekSavvy has done much to make sure that such proceedings take place with a great deal of fanfare and plenty of time for the thousands of Jane and John Does implicated to be notified — all in line with what UN report has to say – we must ask whether or not the legal process that LaRue refers to would be better served if TekSavvy directly opposed Voltage’s motion?

That is what Telus and Shaw did when opposing the motion for disclosure in the BMG case and it is, as I’ve argued, what TekSavvy should do in the present case. Indeed, Judge Mandamin, who is overseeing last week’s proceeding in the Voltage motion, seemed to have exactly this in mind when he noted that hearing a motion from only one side is risky, and that complex technical issues required those with the best knowledge of such matters, i.e. TekSavvy, to step forward.

Second, we can look to elsewhere for cases where ISPs have actively opposed attempts to enroll them into the machinery of copyright enforcement.  Two of the largest ISPs in the UK, BT and TalkTalk fought tooth-and-nail, for example, against sections of the 2010 Digital Economy Act that did just this. While they lost, BT and Talk Talk’s opposition was part and parcel of a wave of opposition, including the influential Hargreave Report, that sent key planks of the Digital Economy Act back to the drawing board.

Another UK case – ACS Law – MediaCat (and here) – showed how important opposing copyright claimants’ bids to pursue mass litigation campaigns against alleged illegal file-sharers is to revealing the shoddy quality of the evidence that often stands behind such claims. Lastly, the Australian ISP, iiNet successfully fought back a push by a group of 34 movie studios, the Australian Federation Against Copyright Theft (AFACT), to have the ISP play an active role in enforcing their copyright interests. iiNet won the initial trial case in 2010, on appeal to the Federal Court in 2011 and again in the High Court last year. In short, ISPs actively and directly opposing motions by a variety of copyright claimants has beaten back the tide on many occasions (thanks to Australian lawyer, Leanne O’Donnell, for the tips regarding these cases).

Third, the standard for disclosing subscribers’ information set in the BMG case is weak. Indeed, the idea that the claims being made are done in good faith falls far short of the stronger standards associated with the requirement that those pushing such a motion make a compelling case that they have a good chance of winning in court.

If speech becomes one of the pivots upon which such things will turn, then the standard will become higher yet. CIPPIC plans to push these points if it gains intervener status, but I can see no reason why having both it and TekSavvy pushing at the oars in unison won’t strengthen the case for moving the weak standards of disclosure that have been in place since BMG, and arguably behind why many ISPs since then have simply folded in the face of motions for disclosure, to much higher standards, and especially standards that put speech rights in the front window.

Ultimately, it needs to be established once and for all that ISPs can’t be turned into agents on behalf of copyright claimants such as Voltage. This is essential given that the ink on the new Copyright Modernization Act is not even dry yet, leaving it ripe for interpretation, as Judge Mandamin noted.

TekSavvy now stands in the best position to do this having been forced into playing that role to oppose the enormous burden that this places on ISPs. TekSavvy has a chance to stick up for important values with respect to its subscribers’ anonymous speech and privacy rights, and it should. Sure, CIPPIC could do this, but CIPPIC’s interests, as I noted in my last post, are distinct both from TekSavvy and its subscribers.

Until the likes of Voltage are successfully challenged, these pillars — speech and privacy rights — of a democratic communication space, which the Internet certainly is a crucial part of, will lay fallow, resting more on the rhetoric of internet freedom rather than a sturdy legal foundation, or economic one, for that matter, if even good (in the normative sense) ISPs like TekSavvy keep taking a financial beating. In short, I hope that the occasion can serve to effect an interpretation of the law that (a) minimizes to the absolute least amount possible the role that ISPs (and other digital intermediaries) are forced to play as agents in the copyright enforcement machinery and (B) maximizes internet users’ speech and privacy rights.

The fact that TekSavvy has broken ranks with past practices by incumbent ISPs and others, who have rolled over and disclosed subscriber info in pretty much every case after BMG (except Telus and Shaw, in that case), it would appear, also demonstrates the importance of having as much diversity and competition in internet access as possible. A more competitive and diverse supply of internet access means that subscribers will be less vulnerable to a handful of players being shaken down by copyright claimants for their personal information.

Voltage’s TekSavvy Subscriber Shakedown, Part II: Big Win for TekSavvy or Room for More?

Yesterday, a Federal Court in Toronto decided to postpone Voltage Picture’s motion to have TekSavvy divulge subscriber identities linked to 2000 IP addresses that Voltage claims have been used to share its movies illegally. Does the result vindicate TekSavvy’s refusal to oppose the motion and mark at least a partial victory for its subscribers, as some are suggesting? 

My friend and colleague David Ellis makes an excellent case for why the answer is yes. As David sees things, far from caving, TekSavvy “was in fact working against Voltage on several fronts”. I’ve talked with several people with good knowledge of the case, thought long and hard about it, and while I agree with many of David’s points, I’m not convinced TekSavvy got the wins he thinks it did.

Let’s start on the positive side of the ledger though, because there is much to appreciate in what TekSavvy has accomplished thus far, with potential for more to come.

Standing Up for Subscribers

First and foremost, TekSavvy has dedicated many hours and, according to statements made in court, already spent $190,000 in legal fees and other costs fighting to ensure that its subscribers’ interests are properly accounted for. Besides David’s kudos for TekSavvy, CIPPIC’s director David Fewer is emphatic that the indy ISP deserves much praise for fighting strongly for its subscribers to be notified and more time to put together a proper legal defense.

Standing up for CIPPIC and the Public Interest

Second, TekSavvy has pushed hard to open space for CIPPIC, the public interest internet law and policy clinic, to gain standing in the case (more on this below). While nothing has been decided on this point, comments by Judge Leonard Mandamin suggest that CIPPIC will gain standing, as David’s post and live tweets from the court room by Paul Andersen and National Post reporter Christine Dobby, indicate.

Voltage argued strenuously against Teksavvy advocating on behalf of a role for CIPPIC. Its lawyer, James Zibbaras, argued the move to defer a ruling was just a delaying tactic to mask the fact that TekSavvy had no case. Justice delayed, would be justice denied, he claimed, because as the courts fiddled, Voltage’s movies would be ripped and burned across the planet. The judge was having nothing of it, however, and the matter was put on hold.

Starting Over: Letter from Voltage – Dear Fans

Third, TekSavvy’s counsel, Nick McHaffie, succeeded in getting Voltage to walk its scorched earth strategy back several steps. Whereas Voltage went straight for the subscriber identities linked to the 2000 IP addresses it has identified, this bypassed the usual first step in such cases: asking ISPs to politely send cease and desist letters to those allegedly engaged in illegal file-sharing, while using this as an opportunity to convert pirates into paying fans.

Voltage did none of that. A late in the game bid by McHaffie, changed this. As a result, Zibarras agreed to do just that, with McHaffie making it “very clear”, according to Ellis, “he intends to put language into the draft order that will protect the privacy of potential defendants”.

Compared to Other Canadian ISPs, TekSavvy’s a Saint

Fourth, TekSavvy’s efforts, as Jean-Francois Mezei put it in a perceptive comment to my last post, distinguishes the indy-ISP from others who have rolled-over and shut-up in two similar cases. In the first, also brought by Voltage in 2011, Bell, Videotron and Cogeco not only did not oppose the motion to disclose the identities linked to fifty IP addresses alleged to have illegally shared the movie The Hurt Locker, they didn’t bother to even show up in court. Despite winning the case, Voltage abandoned its claims last March and things came to a halt (also see here).

In another case late last year, four ISPs – Distributel, Access Cooperative, ACN and 3 Web – faced a similar motion by Canadian motion picture company, NGN Productions. Once again, all ISPs were missing in action, leaving their subscribers hanging in the wind (also see here and here).

At this point, I also need to clarify and correct a point I made in my last post: in the precedent-setting BMG case, far from all of the incumbent ISPs lining up against the record labels, only Telus and Shaw took the lead, while Bell and Rogers selectively and reluctantly joined the fold; Quebecor (Videotron) actively sided with the record labels (see CIPPIC’s archived materials).

In short, relative to most ISPs, TekSavvy is a saint, and should be applauded for walking the extra mile on behalf of its subscribers.

A Glass Half Empty/Full: What Else is a Good ISP to Do?

While TekSavvy has gone well-beyond the norms that prevail among Canadian ISPs, its stance still falls short of what is possible, not just in some fantasized world but against what seems achievable through the legal resources available as well as relative to best practices adopted both in Canada and elsewhere.

Delays May Be Useful, But Are Not a Legal Victory

The first thing to note is that even after spending $190,000, TekSavvy has not won anything yet in terms of a legal ruling other than two delays that allow others more time to get their houses in order. More to the point, it is still not opposing Voltage’s motion.

Standing Up for Privacy is a Real Option, even if not an Obligation

While discussion with others has led me to accept that Canadian law, and PIPEDA specifically, does not compel ISPs to take a stance on behalf of their subscribers’ privacy, the latter does give them the opportunity to do so. TekSavvy should take it.

That it has not stands at odds with best practices set by Telus and Shaw in the BMG case. Even Rogers, which otherwise waffled in the face of the record labels’ case at the time, agreed that ISPs are “obliged to protect . . . the privacy of their customers . . . by virtue of the Personal Information Protection and Electronic Documents Act (2000)”(para 13). This appears to be a moral position rather than a legally compelled one, but so be it if it aids in gaining a big win for subscribers’ privacy. After all, human rights are but empty legal shells if not moral rights, too.

CIPPIC is Not a Proxy for TekSavvy

While TekSavvy’s intervention has opened space for CIPPIC, the decision to defer a ruling on the motion does not guarantee it will be permitted to intervene. Even if it is, CIPPIC is not a proxy for TekSavvy but, as its request for intervener status states, it “brings an important public interest perspective to the proceedings, different from the Plaintiff, the Defendants and the non-party Respondent” (emphasis added).

As CIPPIC director David Fewer told me, CIPPIC’s first role, if it is granted intervener status, will be to underscore the importance of the right to anonymous speech online, with judges functioning as the safety valve in determining when such rights must yield to more pressing public policy concerns such as hate speech, defamation and copyright (see dayna boyd for good discussion of the vexed issue of anonymous speech rights). If the Voltage motion is not just about privacy rights, but speech rights, the fundamental question is which test will be used to decide when the right to anonymous speech can be over-ridden?

The continuum of options stretches from the weak ‘good faith’ standard adopted in the BMG and other copyright cases versus stronger standards in expressive rights cases that require those pressing a claim to demonstrate they possess evidence that is of a high enough standard that they just might win. In other words, when property rights trump speech rights, there better be good policy reasons and strong evidence for doing so.

CIPPIC’s stance reflects the increasing awareness that copyright claims have enormous implications for freedom of expression. That might not be of interest to TekSavvy, but it is a public interest of the highest order. It is also why CIPPIC needs to be in the room.  

CIPPIC’s second concern is to raise questions about whether the courts are being used illegimately as part of copyright trolls’ business model, a model that depends on people, when faced with threat of litigation, making the rational choice to fold simply be settling rather than going through a costly court case. That Voltage went straight to a motion for disclosure versus taking the time to send cease and desist letters throws such concerns into sharp relief.

CIPPIC’s role, thus, is specifically not to intervene on behalf of any of the Jane or John Does that might stand forward in the Voltage motion or TekSavvy because the interests of each of these groups are not one and the same. ISPs must take a stand for themselves. And within a mountain of factors making it unlikely that the hundreds, if not thousands of Jane and John Does will be able to effectively participate, as Howard Knopf states, CIPPIC’s job is to suggest how the law should be applied, what tests should be used when property and speech rights clash, and to uphold the public interest.

TekSavvy, the Federal Court Wants (Needs) You

Towards the end of yesterday’s hearings, Judge Mandamin indicated that hearing a motion from only one side is risky. Two possible interpretations seem to flow from this: One, CIPPIC could play a more adversarial role, and perhaps it will. Or two, TekSavvy needs to step up to the plate more forcefully than it has.   

I think the judge had the latter option in mind, but it is likely that only he and others in the room will ever know for sure. Two things seem to support this interpretation. First, Mandamin was clear that the Copyright Modernization Act, which just came into effect last November, is new and untested, meaning it’s ripe for interpretation and essential to get things right. TekSavvy has an opportunity to help define the new law and should use it. This is a job for those on the front line, not CIPPIC or a rag-tag group of Jane and John Does who may or may not show up when needed.

Judge Mandamin also made it clear that there were difficult technical issues that had to be dealt with and that the court needs to be as informed as possible. TekSavvy is in a better position than any to test the quality of the technical evidence, and for this reason, too, it should go beyond its current stance to directly oppose the motion.

Not a Fantasy

In the end, it is not that TekSavvy is doing nothing. As I argue above, and as David Ellis shows, it has done much, especially relative to what other ISPs have done. For that, we should stand in support of Marc Gaudrault, rather than casting barbs from the sideline.

That said, however, there is scope to do more. My desire to see more does not stem from seeing TekSavvy as falling short of some other-worldly standard of privacy or anything else, but concrete possibilities within currently existing laws, as Telus and Shaw (and to a lesser extent Rogers and Bell) showed in the BMG case and, as I suggested, in my last post, by best practices adopted by Sonic.Net and Twitter in the U.S. and ISPs in Sweden.

They  have taken an active and assertive role in directly opposing motions by copyright claimants and/or the state to disclose their subscribers’ account-related data. In the case of Sonic.Net as well as the Swedish ISPs, they  embraced policies that minimize the collection, retention and disclosure of subscriber information, thereby making it harder to turn-over subscriber information to copyright trolls, and anyone else, because they simply do not have it.

Yes, as someone I respect very much told me, I should be careful what I wish for, because if this mini-campaign for minimalist data collection, retention and disclosure policies gains legs, it’s possible the Harper Government would step in to mandate a minimum data retention law, likely in the range of six months.

My response is two-fold. First, we’ll deal with it if it happens. It’s not possible to be shadow-boxing with ‘what-ifs’. Should ISPs and other internet companies adopt this pet-project of mine, and face such a reaction, as some smart minds contemplate, then let us resume the battle royale that such a move could trigger, similar to the public outcry to the government’s last lawful access bill (Bill C-30).

Second, if expressive rights are tied to concerns about control over our own personal information, then perhaps it would be possible to challenge any attempt to legislate a data retention requirement on grounds that such a measure is excessively broad and an affront to speech rights? A more tailored response seems to have been grasped in the new Copyright Modernization Act where the need to retain subscriber data for six months only kicks in after an ISP receives notice of IP addresses that have been linked to infringing behavior. Data retention seems to be a bit of a blackhole when it comes to the interests of property and the state in Canada, and the sooner we shed some light on it, the better. 

Last Words

David Ellis, J.F. Mezei, and others are right that TekSavvy has done more than most and won a few victories along the way. With all that TekSavvy has done over the years, it would be churlish to see it as selling out. 

However, there is more that it can and should do. At this early stage in the shaping of the new copyright law, carving out an even greater role for itself could fundamentally shape the legal landscape for the internet and digital media for years to come.

And it is for all these reasons that I hope it will rise to the occasion, while being mindful that it has done much already and itself not privy to an unlimited stash of cash. Perhaps this is grasping at straws, but how about a John and Jane Doe and TekSavvy Copyright Troll busting fund?

If that’s an option to be pondered, I’m in for $190 to start (1/1000 of what TekSavvy has on the table so far).

Voltage’s Teksavvy Subscriber Shakedown: What’s a Good ISP to do?

Tomorrow will be a big day in a federal court in Toronto. At 11am, the court will hear a motion by Voltage Pictures to have Canadian indy-ISP and darling of the open internet community, TekSavvy, disclose the subscriber names and contact addresses associated with a list of 2000 IP addresses that Voltage alleges have been used to upload and share its films and tv programs in violation of copyright law.

At the end of the day we may know whether Voltage has prevailed and TekSavvy forced to hand-over the subscriber account information linked to those 2000 IP addresses. But while we wait, there is another question that I want to address in this post, and that is whether TekSavvy has done as much as it should to oppose Voltage’s motion?

As TekSavvy’s CEO Marc Gaudrault stated in DSL Reports last December when the case first erupted into public view, “we will not be making a case against the merit of what they are alleging. That’s for those affected and others to do if they wish to.”

That refusal to take a stand, to put it mildly, has displeased many of its subscribers. It has also unleashed a roiling discussion thread on DSL Report as well as the blogosphere. Respected copyright lawyer, Howard Knopf (here, here and here) and Jason Koblovsky (here & here), one of the co-founders of the Canadian Gamers Organization, have been highly critical of TekSavvy, arguing that it should be doing more to push back against Voltage’s shake-down of the ISP.

Drawing on his experience as legal counsel to CIPPIC in a close parallel to the motion now in front of us — the BMG case in 2005 — Knopf argues that TekSavvy should take the lead in opposing Voltage’s motion for at least three reasons:

  1. First, since it is the only entity that can resolve the link between IP addresses and subscriber identities, it is in the best place to challenge the technical evidence that Voltage and its forensics contractor, Canipre, have put forward;
  2. Second, in the BMG case, Telus and Shaw actively stood in opposition to the record labels’ bid to obtain subscribers’ identities on just this ground and TekSavvy should do no less in the present case, especially given that it holds itself out as being more attuned to its subscribers’ interests than its corporate cousins – a point that Koblovsky also relies on heavily;
  3. Third, it is too much to ask of CIPPIC, an organization with a skeletal staff and limited resources, to take the lead in the case.

The criticism of TekSavvy has led to a lot of soul-searching, mostly because, to most observers, the indy-ISP has been on the side of angels. The little-ISP-that-could, for instance, led the charge against the CRTC’s hated UBB decision in 2011, has intervened time and again in a myriad of regulatory decisions in which the fate of indy-ISPs has been on the line, held itself up as a plucky alternative to the incumbents with more affordable services, bigger caps or none at all, and has been a patron of Open Media, probably the most successful group this country has ever seen in terms of opening up arcane telecom, media and internet policy issues to a much bigger audience.

So, not surprisingly, others have come to TekSavvy’s defense. Most notably, in addition to denouncing Voltage’s mass copyright litigation (here and here), the other day David Ellis chastised TekSavvy’s critics. As Ellis sees it, TekSavvy has being working hard on behalf of its subscribers for two months. Moreover, TekSavvy quickly joined CIPPIC to ask the court to postpone the matter to give the ISP more time to notify its subscribers, for the court to consider CIPPIC’s request to join the proceedings and to give Voltage and its hired-gun, Canipre, more time to clean up their data. Ellis also suggests that the distance between pushing for a delay and outright opposition might not be that far, and we could still see it take on a more active oppositional role yet.

He also argues that TekSavvy’s reticence to take a stance is probably due to concerns that doing so could jeopardize its claims to being a neutral, common-carrier. In this view, by staying neutral, TekSavvy avails itself of ‘safe-harbour’ provisions that get ISPs off the hook in terms of their own liability in copyright infringement cases.

While I agree with Ellis that TekSavvy could yet change its stance, and that it has done much to buy its subscribers time to arrange their own defense, I do not think it has done enough. I also think worries that actively opposing Voltage’s motion could jeopardize its ‘safe-harbour’ defense are misguided. As a common carrier, ISPs already have limited liability for what their subscribers do, and what TekSavvy does in the courtroom will have no effect on that.

I agree with Knopf that TekSavvy should be taking the lead in opposition to Voltage’s shake-down because it is in the best place to do so from a technical point of view. That there may be problems with the technical data that Voltage is presenting is evident in the fact the company cut their initial list of 4000 IP addresses down to 2000 at the last minute – a good sign that things are not quite in order. Given the weight the BMG case put on the quality of the data in determining whether privacy would be trumped by other pressing concerns, this is essential (see para 21).

Second, ISPs are common carriers and this means their liability for what subscribers say and do is very limited, both by law and by tradition. The basics of what that means is set out in the Telecommunications Act of 1993 (see sections 27-29 and 36). Common carrier principles are also carried over into the new Copyright Modernization Act, as the following passage indicates:

A person who, in providing services related to the operation of the Internet or another digital network, provides any means for the telecommunication or the reproduction of a work or other subject-matter through the Internet or that other network does not, solely by reason of providing those means, infringe copyright in that work or other subject-matter (sec. 31(1)).

Incumbent ISPs have always reserved the right to aid copyright claimants (read your Terms of Service agreement) and, indeed in 2011 Telus said that it was sending out 75,000 notices a month of alleged copyright infringement to its subscribers. The new Copyright Modernization Act has parlayed this informal arrangement into a notice-and-notice regime that now requires ISPs to do the same thing as a matter of law, and to retain and disclose subscribers’ information for a period of six months after receiving notice of copyright infringement.

There is nothing in the new act or the old legislation, however, that prevents or even discourages ISPs from taking a stance against a motion for disclosure. Again, as Knopf observes, when mass copyright litigation first hit Canada in the BMG case, Shaw and Telus stepped up to oppose BMG and the rest of the recorded music industry arrayed against them. Moreover, while Bell and Rogers were less committal in the opposition, ultimately they did line up foursquare with Shaw and Telus behind the view, as the court stated, that ISPs should step forward to “protect[] the privacy of their customers whom they were obliged to protect by virtue of the Personal Information Protection and Electronic Documents Act (2000) (para 13). They won.

TekSavvy should do the same. Going out on a limb a bit, at least one seasoned lawyer that I have spoken with suggest that the case could be fought and won easily, for five figures, i.e. under $100k.

Beyond the BMG case we can also look further afield to the United States at a recent example of what a real stance opposing a motion of disclosure looks like. Thus, when faced with a request from the Department of Justice to hand-over account information for three of its subscribers, without telling them, as part of the DOJ’s investigation of Wikileaks, Twitter refused. The company obtained a court order allowing it to disclose the request to the users in question. It also put them in touch with legal counsel at the Electronic Frontier Foundation.

Finally, Twitter fought the request tooth and nail, all the way to appeal, but lost because, according to the ruling, the social media company’s business model is based on the unbridled collection of user data for advertising purposes in return for free access to the service. The upshot of that, in turn, is that users have no reasonable expectation of privacy and thus Twitter had to hand over subscribers’ account information to the state.

Whether Twitter won or lost is not the key point; the fact that it stood up to the plate, and fought to the bitter end in support of its subscribers and a principle – privacy – is. Moreover, while a loser in the court of law, in the court of public opinion, it won: Twitter’s chief lawyer, Alex MacGillivray, was named by The Guardian as one of its top twenty “champions of the open internet” last April.  The Electronic Frontier Foundation offered its own honorifics.

The last point that I want to make is that TekSavvy has another option at its disposal: minimizing the collection, retention and disclosure of subscriber data as a matter of company policy. Apparently there has already been some discussion of this, with the ISP at one point in time before the Voltage motion hit the fan thinking about increasing the length of time that it keeps data logs from three months to six. That is now off. And that is certainly a good thing.

There are many reasons that ISPs need to keep data logs, not least of which are billing and network management. However, there are also ways of meeting these needs that limit the data kept to just these narrow purposes and which otherwise minimize how much data is collected, how long it is retained, and when it is disclosed. Billing data, for instance, can be kept separate from traffic data, with the former retained, and the latter tossed.

There are two excellent examples along these lines that I’ll close this post with. The first is Sonic.net, a San Francisco Bay area ISP with 45,000 subscribers. It keeps subscriber data logs for only two weeks and has been the recipient of copious amounts of praise and a four-star rating by the Electronic Frontier Foundation in the latter’s annual “Whose got your back” scorecard because of this practice. TekSavvy could take some lessons from Sonic.net.

Lastly, in 2009, several Swedish ISPs, including one of the top 3 – Tele2 – began erasing “traffic data” in order to protect their subscribers privacy. They did so in response to the Sweden’s own new copyright law, IPRED, and in order to avoid precisely the kind of predicament that TekSavvy now finds itself in.

In my view, such a minimalist data collection, retention and disclosure policy is part and parcel of what a full-throated defense of principles and its subscribers would look like. The point is not to turn TekSavvy into a scofflaw, or a ghetto for copyright infringement abuse. The case of Sonic.net, Tele2, Twitter, and others demonstrate well that strong privacy and subscriber protections are not tantamount to such things, and indeed are good business and good for people’s rights.

Minimizing the collection, retention and disclosure of subscriber information embodies practices and values that apply across domains. Today it is copyright; tomorrow, lawful access and the son-of-Bill C30 (lawful access). Such values and practices will serve us well in that context, too.

We are in the midst of many events and choices that will be made that will set down the firmament in which the internet establishes deep roots. In my mind, we need to realize that these decisions and events will determine whether we can develop an internet fit for democracy, or whether we will see trade-offs all down the line to the point that an open internet and democracy are just a dream. Good night.

* Note: revised January 14th to acknowledge that Bell and Rogers were far more tepid in their stance than Telus or Shaw in the BMG case, while Quebecor (Videotron) actively sided with the record labels.

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