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Wealth Destroyers and End Game for the Copyright Modernization Act (Bill C-11)

Some of you may have noticed that I’ve been away for a while. Sorry about that for those of you who missed me. Let’s just say that I learned the hard way the steep cost of blogging, twitter, facebook, writing for the Globe and Mail, all for free, while holding down a real paying job where one has to actually teach, research and contribute to the department you’re in. There’s only so many hours in a day.

While away there’s been a mounting backlog of stuff to write about, and over the next few weeks I’ll unfold a series of blogs, but let me kick off with the current state of play for the Copyright Modernization Act (Bill C11). This is the fourth effort to revamp copyright law in Canada in the last seven years, and things are rapidly coming to head.

The bill itself has numerous elements that are actually not bad as currently written (no term extension for copyright holders, a very limited role for ISPs, search engines and others as ‘digital gatekeepers’, an innovative user created content add-on to fair dealing, etc.), but deeply troubling aspects as well (the digital locks provisions, notably). While the Bill has passed second reading and finished committee review yesterday (March 7), during the latter stage the ‘copyright maximalists’ lined up one after another in a last ditch push to convince MPs that the bill needs to be radically overhauled so as to stuff it with all sorts of things that have thus far been rejected.

The bill goes back to Parliament for a clause-by-clause reading on Monday and while there’s still third reading and Senate review to pass, its now or never to make sure that last ditch attempts by a few lobbyists to rewrite the bill never see the light of day.

What kind of stuff, you no doubt ask? Here’s just a partial list, culled mostly from the music and gaming industry lobbyists and like-minded legal advisors (see here and here):

  1. Tough rules that could require intermediaries from ISPs through to search engines (e.g. Google), social networking sites (e.g. Facebook, Digg, Twitter) and data/web hosting sites (e.g. BlackSun and other ‘cloud’ providers) to block access to websites and others alleged to enable copyright infringement;
  2. The substitution of a ‘notice and take-down’ and graduated response regime that would see ISPs disconnect subscribers accused of repeated infringement instead of the much less intrusive ‘notice-and-notice‘ regime already included in the bill and practiced as a matter of course by all of Canada’s major ISPs.
  3. Claw backs to the innovative user-generated content (UGC) clause of the act that allows people to make mashups and remixes for non-commercial uses.
  4. Copyright term extension from lifetime of the creator plus 50 years to life + 70 years.
The chances of any of these things being adopted is uncertain, but it needs to be stated clearly that any attempt to stuff the bill full of SOPA like provisions is a non-starter. For those not in the know, SOPA stands for the Stop Online Piracy Act in the US that gained so much notoriety earlier this year that its backers finally put a stake through its heart, at least for the time being, but only after an extraordinary outcry against the bill and after WikipediaFirefox, Google, and thousands of other sites went black for a day on January 18th, 2012.

SOPA would have required: (1) ISPs to block access to ‘rogue websites’, (2) search engines to make such sites disappear from their results, (3) payment providers like Paypal and Visa cut-off payments, (4) advertisers to cut-off suspect sites from advertising placement, etc. The fundamental remaking of the Internet such activities contemplated unleashed a firestorm of protest, in the US and globally, ultimately leading to a tactical withdrawal of SOPA. Yet as SOPA was being withdrawn in the US, the copyright maximalists here in Canada were on a roll and began pushing what looks like much of the same thing.

The first indication of this can be seen in the language used, with the copyright maximalists such as Barry Sookman, James Gannon, the Entertainment Software Association of Canada (p. 6) and the Canadian Federation of Musicians carving up the world into “good guys” and “bad guys”, backed by repeated references to “wealth destroyers”. This stuff is imported directly from copyright maximalists as Daniel Castro at the supposedly ‘non-partisan’ Information Technology and Innovation Foundation (ITIF) in the U.S. who referred to “parasites”, “rogues” and “leeches” to make his case for the ‘mother of SOPA’ early last year.

I’ve done this before but it bears repeating that the claims of wealth destruction are bogus. The trick is simple when it comes to the music industry, which in the present case has been bandying about a figure of $800 million dollar as having simply disappeared. That figure has been subsequently recycled by those on the committee, notably by Dean Del Mastro of the Conservatives, who stated on opening day, and drawing directly on the lobby group Music Canada:

“over $800 million a year [is] going missing. That’s coming right out of the pockets of artists, and that’s money that’s not being invested in this country (at 1645-50 in the transcripts).”

I have no idea where this figure has been tallied from, but it seems to be a magnification of already circumspect numbers that have been used in the past. The ruse in all this, as I’ve shown in earlier posts, is to take just one part of music industry revenues — recorded music sales (cds, LPs, etc.) — that really have suffered badly, i.e. dropping about $550 million (not $800m) in the past eight years, and then let this one segment stand for all revenues across the music industries as a whole. Looking at just the single category of recorded music industries, the situation does look dire, indeed, as the following diagram shows.

‘Recorded Music Industry’ Revenues in Canada, 1998 – 2010

The music business only appears to be in dire straits if we look at things from this cock-eyed view of the world. It looks entirely different when we include the recorded music segment and the three fastest growing segments of the business: (1) concerts; (2) internet and mobile phones; (3) publishing rights. Once we do that, the world looks entirely different, as the figure below shows:

Total Music Industry’ Revenues in Canada, 1998 – 2010

Source: Statistics Canada; PriceWaterhouseCooper; Socan.

And this is not just the case for the music industry, but the movie industry as well. Again, the following chart helps illustrate the point (If you can’t see the figure below, click here).

Source: MPAA (2011). Theatrical Market Statistics.

And again, as with the music industry, these figures for “Box Office Revenues” are only half the matter, actually a little less than half the matter. When we open our eyes wider to look at all revenue sources for the film industry, including pay-per view tv, cable and satellite channels, video rentals, rapidly declining dvd sales, and fast rising new areas such as online subscriptions and digital downloads, the picture changes dramatically.

Doing that, it is clear that the movie business is doing even better than the box office numbers suggest, rising sharply on worldwide basis from $46.5 billion in 1998 to $87.4 billion in 2010. Table 1 below shows the trend.

Table 1:  Worldwide Film Industry Revenues, 1998 – 2010 (US$ Millions)

1998 2000 2004 2008 2009 2010* Change %
Film 46,484 52,803 82,834 82,619 85,137 87,385 + 88%

Sources: PriceWaterhouseCoopers (2010; 2009; 2003), Global Entertainment and Media Outlook.

The same case can be made for the electronic software and video gaming industries, the constituents of the Entertainment Software Association of Canada (ESAC) and their corporate lobbyists who have also been out their plying their trade, backed by similar dubious assertions.

The biggest problem with all of this is not the underlying faulty economics and total absence of meaningful evidence, but rather the complete bankruptcy of the lawyers and lobbyists peddling the case. They appear to have no moral compass when it comes to these matters and would just as easily turn ISPs, search engines and social networking sites into online gatekeepers working on their behalf as they’d toss their grandmothers overboard if she hacked a digital lock.

That their positions are indeed those of radical extremists can be seen by, for example, comparing them with other interests in the mainstream of business thinking, such as the Business Coalition for Balanced Copyright. The BCBC group represents most of the major ISPs in Canada (Bell, Rogers, Telus, SaskTel, MTS Allstream), Google, Yahoo, eBay,  and so forth.

Thus, whereas the ESA (p. 7), Canadian Federation of Musicians, Canadian Independent Music Association (pp. 8-9), and copyright lawyers like Sookman and Gannon, call for a “much stronger and enforceable” notice-and-takedown regime, and graduated responses that would require ISPs to disconnect internet users accused of repeatedly infringing copyright material, the Business Coalition for Balanced Copyright forcefully rejects “notice-and-takedown and graduated response policies, which would turn intermediaries into ‘copyright police'” (p. 6). The group also rejects such a role being imposed on other digital intermediaries such as Google and social media services.

This is not unusual. To its credit, one of the world’s largest telecom and internet gear manufacturers, Ericsson, makes the same case in perhaps even more expansive language. Indeed, while supporters claim that the “graduated response” and digital intermediary strategy have only a minimal impact on individual liberties (see here and here), a recent UN Internet & Human Rights minced no words when it argued exactly the opposite point of view:

“. . . [C]utting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, [is] disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights” (p. 21).

As for the attempted claw back on user-generated content, once again we see the copyright maximalists as not just being out of step with others but so wedded to a restricted view of the world that they think that copyright law is all about them. Yet, as James Boyle observes in The Public Domain: Enclosing the Commons of the Mind (pp. 66-70), copyright sets out rights for creators and owners, on the one side, and users, readers and audiences to do as they please with media acquired legitimately, on the other.

From the blinkered, ego-centric position if the maximalists, it’s easy to understand the drive to extend copyright terms from life of the author plus fifty years to seventy, but why not in perpetuity? That they have not pursued this is mere capitulation to political reality versus any kind of principled stance.

Reading any of the above ‘copyright maximalists’ interventions one would be hard pressed to know that copyright law is about two sets of interests: copyright holders and media users. Thus, from the position of the ESA (p. 7), Canadian Federation of MusiciansCanadian Independent Music Association and copyright maximalist lawyers like Sookman and Gannon, the idea that the Copyright Modernization Act (Bill C-11, sec. 22) would carve out space for non-commercial user-generated content is completely unacceptable, akin to a tax, a subsidy, a sop thrown to the masses. It is not, it is simply recognizing that people have rights too.

Nowhere is this idea more evident than in the digital locks provisions of C-11. Indeed, whilst the bill contemplates some reasonable measures and in fact does acknowledge a new user right with the user created content provision, the fact of the matter is that the restrictions on tampering with digital locks effectively nullifies those rights. In other words, what the bill gives with one hand, it taketh away with the other.

Again, the Business Coalition for Balanced Copyright is much more onside in this matter than the content and entertainment industries. Indeed, they are emphatic that the greater articulation of user rights in the Bill is an advance, and that this is especially so with respect to the user created content right, but state equally emphatically that “the digital locks provisions render them illusory” (p. 4).

Ericsson stakes out a similar position, setting out three general principles that ought to govern whatever digital locks mechanisms that are used and backed by the force of law:

  1. They should be “built on an interoperable set of proprietary standards or consist of DRM technologies that are based on open industry-wide standards;
  2. “Must not limit individuals’ statutory right to make legal private copies of Music, Books and AV works;
  3. “[C]ontract law and technical standards should not be allowed to override statutory exceptions such a fair use regime or private copy exemptions, thereby limiting the availability of lawfully acquired content to format or device shift within the scope of the private sphere” (p. 6).

My point in all this is not to make a fetish out of those who make, own and run the pipes that make up the Internet and the networked, digital public sphere. Instead, it is to highlight some of the mainstream currents of thinking on the issues at hand and to highlight those who are now trying to stuff Bill C-11 with SOPA-stlye restrictions that will gut the Internet for what they are: radical extremists, and well in the minority.

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The Copyright Modernization Act (C-11), Digital Locks and turning ISPs into Gatekeepers One Step at a Time

For the fourth time in six years, new copyright legislation was introduced last month and debated in Parliament this week.  The proposed new Copyright Modernization Act (Bill C-11) is a word-for-word rendition of the last bill that died when the election was called, except for a few important tweaks (see below).

The bill, in fact, has much to commend it. It holds the line steady on the length of copyright protection at the lifetime of the author plus fifty years, rather than wildly extending it for up to 150 years, as in the United States.

It also recognizes new user rights, including the ability to swap content we already own across the devices we use, such as smartphones, tv screens, computers, tablets, and so on. So, yes, according to C – 11, take the music or episode of The Wire you bought online and burn a copy to watch on your telly. People can also copy legally-owned content for their own personal, non-commercial use, and for safe-keeping (section 29).

The most cutting-edge innovation is the nod given to the do-it-yourself culture of mass expression. People will be able to rip, mix and burn snippets of media content in order to create their own non-commercial parodies, satire, mash-ups, and Youtube clips.

The biggest problem is that these new rights are trumped by the sanctity given to digital locks in Bill C-11. Sure, do all of the things the new law permits until your heart’s content, but only if you do “not circumvent . . . a technological protection measure”. TPMs are inviolate, as the entirety of section 42 makes painstakingly clear.

This is the triumph of technology and contracts over human will and communication rights. Critics are right to single it out. It is hard to imagine the bill being salvageable without this ordering of things being seriously revamped.

That the Conservatives have consulted closely, and secretively, with Washington to design this bill is also problematic (see here and here). The book-burning clause requiring students to destroy copyright-protected, online components of course they take thirty days after receiving their final grade is plain dumb (section 30(5)).

Yet, there is another feature that needs higher billing than it has so far received: Notice and Notice rules that will require all ISPs to pass on notices from copyright holders to subscribers alleged to be illicitly downloading and sharing copyright protected content online. ISPs will also be required to retain records for six months that allow the identity of the subscriber to be established and disclosed if things end up in court (sec. 41.26b).

The requirement to retain subscriber information is new. The notice and notice regime, however, is not. Telus, for instance, already forwards 75,000 notices every month on behalf of copyright claimants on average.

In fact, all major Canadian ISPs – Bell, Shaw, Rogers, Quebercor (QMI), Telus and Cogeco – voluntarily agreed with the recorded music industry a decade ago to perform such a function — for free. Such a role is hidden in plain sight in each of their Terms of Service agreements (see here and here).

The publishing, software and movie industries have been the most frequent users of the voluntary notice-and-notice regime in recent years, while the recorded music industries have moved on to pursue a more ambitions agenda since 2008: new laws that require digital intermediaries – ISPs, search companies (Google), data centres — to block access to blacklisted URLs and, for ISPs to take the drastic step of cutting off the Internet connections of repeat infringers.

These approaches are known as the “graduated response” and “three-strikes” regimes. The Recording Industry Association of America (RIAA) and International Federation of Phonographic Industries (IFPI), working in tandem with their local offshoots, have been remarkably successful in having them translated into real-world laws in one country after another: Australia, Britain, France, Ireland, New Zealand and Taiwan, amongst others.

This agenda has not yet succeeded in the United States, however, although the push to make it so is relentless.  The terrain is not terra nulles, however, and all of the biggest U.S. ISPs – Comcast, Verizon, AT&T, Time Warner, Cablevision, etc. – signed a deal last summer with the big four music companies (EMI, Sony, Universal, Warner Bros.) and Hollywood studios (Disney, Viacom, Time Warner, News Corp., Universal, Sony) that will see them take on the notice and notice procedures and possibly some additional measures voluntarily.

The agreement is colloquially known as the “six-strikes-and-we’ll-see” approach because the higher level deterrents are seldomly used. Nonetheless, some worry that the push will be to steadily ratchet the levels of control enacted by ISPs to ever-higher levels.

The notice and notice regime contemplated by the Copyright Modernization Act is stricter than the approach arrived at in the United States. However, it is far less punitive than the “three strikes” and “graduated response” measures adopted by France, the UK, New Zealand and Ireland, among others, in recent years.

The Conservative Government’s decision to reject the three-strikes approach delivers a clear set-back to the recorded music industries’ policy agenda. More importantly, however, it comports well with a recent UN Internet & Human Rights report that emphatically states that “cutting-off users from Internet access . . . on the grounds of violating intellectual property rights law . . . is disproportionate and . . .a violation of . . . the International Covenant on Civil and Political Rights (p. 21).

Nonetheless, C-11 is problematic insofar that it takes a voluntary deal cooperatively arrived at among Canada’s incumbent telecom and cable companies and applies it to the rest of the 400-500 smaller ISPs that exist in the nooks and crannies of the Canadian ISP market. The new law will force small ISPs to assume roles that most have rejected, and which some oppose on privacy, information rights, and freedom of expression grounds.

Second, the new bill mandates that all ISPs retain data for six months and to disclose the identity of Internet subscribers under court order. This is a new element introduced by the legislation over and above the current voluntary arrangements. For those who believe that the goal should be to minimize, rather to increase, the collection and retention of subscriber data, this is problematic.

Third, as the Chilling Effects Clearinghouse and the Electronic Frontier Foundation’s Take-Down Hall of Shame in the U.S. illustrate, copyright claimants frequently launch claims based on broader assertions than the law permits. Removing the hurdle of a court order essentially permits copyright claimants to take a shotgun approach that captures far more than what it legally required. The chilling effect on free expression is considerable since many people stop whatever they were doing when sent a notice of alleged copyright infringement rather than wander on to uncertain terrain.

Because copyright holders groups strongly oppose the suite of user rights outlined above – to make back-up copies, create User Generated Content (UGC), swap content across devices, etc. –  they will work very hard to have these rights defined as narrowly as possible. A legally mandated notice and notice regime will serve them well.

C-11 will not turn ISPs and other digital intermediaries into gatekeepers on its own. Translating the voluntary agreements that Canada’s biggest vertically-integrated telecom-media-Internet conglomerates — Bell, Shaw, Rogers, QMI, Cogeco — have made with the music industries into the law of the land, however, will only tilt the bias further yet toward a more net-centric model of control. Extending these methods — plus new data retention and disclosure mechanisms — to all ISPs will compound the problem.

The dominant  telecom-media-Internet players have already demonstrated their capacity to discriminate in favour of their own content and services. In addition, their use of DPI (deep-packet inspection) technologies is already very high relative to global standards (see here). I see no reason to give either them or the copyright holders groups yet even more incentives that will only bolster their pursuit of network-centric models of control and perpetual copyright.

Seen in this context, digital locks are important but the possibility that notice and notice will become the law of the land deserves far more scrutiny than it has thus far seen.

Dream Bıg: Some Modest Reforms for the Telecom-Medıa-Internet (TMI) Industries in Canada

I’m taking a break for a few weeks, but before here ıs a slightly extended versıon of my column ,ın te Globe and Mail yesterday.

It’s time to step back for a bit from trying to explain, first, that the telecom-media-Internet (TMI) industries in Canada are concentrated, second that they are poorly regulated and, lastly, that this is problematic, not from the perspective of utopian ideals, but of a digital free press in a liberal capitalist democracy like ours.

 

When I come back I’ll write about other things, I promise (maybe). Before I leave, though, a few thoughts for your consideration.

 

We live in what Ron Diebert and Rohan Rohozinski of the Citizen’s Lab at the University of Toronto call a ‘constitutive moment’. This means that actions taken now will help lock in the structure, look and feel of the digital, networked mediaspace for years ahead.

 

Three matters are coming to a head as they wind their way through the CRTC and body politic:

 

  • The CRTC will decide the fate of the pay-per model of the Internet (UBB and bandwidth caps) (starting at CRTC hearings July 11) imposed by the ‘big six’ ISPs on Canadians while they were sleepwalking until all hell broke lose last January when the incumbents got regulatory approval to pin their hated pay-per model on the independent ISPs that serve the five percent of Internet users not served by the incumbents.
  • We will see if the CRTC has the wisdom and courage to pick the right tools to effectively deal with vertical integration and concentration across the TMI sectors as a whole.
  • a CRTC “fact finding inquiry” will examine whether online video distributors such as Netflix, YouTube, AppleTV and so on will be freely accessible in Canada or regulated like broadcasters.

 

By my estimation, each hearing involves about a hundred submissions of thirty or so pages each. That’s nearly 10,000 pages. It would be great if you could keep up to speed on these matters while I’m away by bumbling your way through the “truly primitive” website of the CRTC, as Cardozo Law School Professor Susan Crawford refers to it.

 

But who has the time and resources to do this? The incumbents and their well-heeled lobbyists, that’s who! I am on sabbatical, but still exhausted tracking this stuff day after day.

 

Others such as the Public Interest Advocacy Centre also take part in these processes as much as they can. For PIAC it’s a real problem, because late in the game it just learned that the CRTC’s fast-tracked “fact finding” expedition on new media isn’t a real hearing, so no funding for them.

 

The rabble-rousing group, Open Media, is marshalling its resources for this week’s UBB Hearings. Rightly so, since it put the issue of the pay per Internet model on the public radar to begin with. They are boycotting the OTT ‘fact finding’ mission, though, because their resources are stretched thin and to protest the fact that the CRTC buckled to vested interests’ pleadings to have the proceeding advanced from 2014 to now, even though similar examinations occurred just two years ago.

 

Google and Apple also scolded the CRTC for allowing matters to get all bungled up in a kind of regulatory trench warfare. The CBC and NFB want to deliver their content to as many people, anywhere, anytime and across as many platforms and devices as possible, as well, not new regulations. Mirko Bibic, Bell’s regulatory front man, called this idea “preposterous” at the vertical integration hearings two weeks ago.

 

This battle over the future of media is not the result of new industrial arrangements, digitization, or newfangled economic theory, but endemic to situations where those who control the medium also control the messages (content).

 

In the 1900s, for example, the Canadian Pacific Telegraph Co. and Great Northwestern Telegraph Co. (the latter owned by the New York-based goliath, Western Union) had exclusive distribution rights for the Associated Press news wire service in Canada. To fortify their dominant position in the lucrative telegraph business against smaller rivals (e.g. the Dominion Telegraph Co in Canada and Postal Telegraph Co. in the US), the Canadian Pacific Tel. Co. and Great Northwestern Tel. Co. gave away the AP’s news service to the dominant daily newspaper in each town across the country for free.

 

AP’s service was so cheap because instead of paying the cost for the news service and the telegraph charges for delivering it, the companies only charged for the ‘transmission costs’. This was a boon to established members of the press and AP and a useful tool for the companies’ own efforts to stitch up their lock on the telegraph business. It was also a menace to network competition, rival news services and a diverse press.

 

Any rival news service that tried to enter the market was at a disadvantage because its subscribers had to pay the ‘transmission costs’ plus the cost of the news service. When the Winnipeg-based Western Associated Press set up a news service in 1907, it found its opportunities blocked because there was no way its subscribers could afford to pay two costs — transmission and for the news service — and stay in business, while AP’s new service was given away free to competitors.

 

Leveraging control over the wires, the telegraph companies choked the messages flowing through them. As one muckraking journalist, W. F. Maclean, wrote in the Toronto World,

 

“attempts on the part of public service companies [the telegraph companies] to muzzle free expression of opinion by withholding privileges that are of general right cannot be too strongly condemned.”

 

The matter was brought to a head by one of the first regulatory bodies in Canada, the Board of Railway Commissioners in 1910. Canadian Pacific Tel. Co. came out swinging, arguing that the BRC had no authority over news services or to compel them to separate the costs of the news service from their transmission costs.

 

The BRC didn’t wilt for a moment but shot-back that the law compelled it to insure that rates were ”just and reasonable”. Unless transmission rates were separate, explicit and equitable, “telegraph companies could put out of business every newsgathering agency that dared to enter the field of competition with them”, it declared matter-of-factly.

 

The regulator had all the authority in the world it needed to break up the ‘double headed news monopoly’, and it did.

 

To be sure, the modalities of communication have changed tremendously since and we now live in an age when information is plentiful, not scarce. Yet, as Tim Wu’s Master Switch, and the mounting evidence before us attests, the basic logic of leveraging content and networks to confer advantages on one’s own services whilst driving others into submission, if not out of business altogether, is alive and well.

 

Australia, Argentina, Belgium, Brazil, Britain, New Zealand and many others are dealing with their own contemporary experiences of networks being used to trample competition and diminish the range of voices and expression available. Australia created the National Broadband Company in 2009 with $43 billion in funding to spur competition and open networks, for instance.

 

We have the publicly-owned and financed CANARIE with its ultra fast networks serving hospitals, schools, universities and researchers across the country. However, its modest funding ($30 million/year, roughly), uncertainty about funding levels after March 2012, and its executives’ squeamish view of how little they should compete with the incumbent commercial providers all limit CANARIE’s ability to offer much by way of an alternative network.

 

In Belgium and Britain, respectively, Belgacom and British Telecom have been forced to give more generous access to their facilities to speed the development of next generation networks. The level of functional separation adopted in the UK is unmatched elsewhere and depended heavily a strong regulator to force it upon a kicking and screaming BT in 2006. It has already led to more telecoms competition, broadband Internet services with greater speeds and capabilities, and lower prices relative to most countries, including Canada.

 

As an academic, I can dream big, but between my dreams and reality, there is a middle ground represented by measures that the FCC and Department of Justice in the U.S. put in place when they approved Comcast’s take-over of NBC-Universal earlier this year. In return for their blessing, Comcast must meet four fairly tough demands:

 

  • its television and film content must be available to Internet competitors and online video distributors (OVDs), a new category designed to cover Netflix, Hulu, AppleTV, etc.;
  • adopt open Internet principles generally;
  • “offer broadband services to low-income Americans at reduced monthly prices;
  • provide high-speed broadband to schools, libraries and underserved communities, among other benefits”.

 

These are practical measures that the CRTC could implement. It is a middle of the road choice, not a radical one. It does force the market to deliver a minimum level of social justice, but first and foremost it tries to foster a digital free press fit for a liberal capitalist democracy, rather than striving for abstract utopian ideals or bowing to the status quo.

 

Down the Rabbit Hole at the CRTC: Regulator and Big 4 Make Molehill Out of Mountain on Telecom-Media-Internet Concentration Issues

As per my usual practice, this post is a slightly altered version of my column in the Globe and Mail today. It is a a wee bit longer and, as is my standard practice, comes more fully-equipped with citations and sources that you can turn to to follow up on, assess my take on things, and so forth.

In the first of two column’s last week I offered evidence and argument as to why the CRTC’s current vertical integration hearings are not likely to deal effectively with the question of telecom-media-Internet concentration in Canada. Sitting in on three full days of hearings last week has convinced me that the prospects may be even dimmer than I thought.

If you know how to say “voluntary code”, “case-by-case dispute resolution”, “skinny basic”, and status quo, you’re in luck because that’s probably what the outcome will be. Some consumers will benefit with slimmed down and more affordable basic cable and satellite packages and there’s a fifty-fifty chance that a hands-off-Netflix approach is in store, if I am right. The pay-per Internet model and less than a handful of telecom-media-Internet behemoths, however, will be still stand astride a set of highly concentrated industries, and we will be the poorer for this.

The hearings had an Alice-in-Wonderland feel, mainly because the evidence offered by all sides was remarkably poor. Consequently, discussion meandered between speculative worries and rose-tinted visions brought to us courtesy of the great media corporations of Canada.

The CRTC’s refusal to do much original research of its own compounds this problem, and compares badly with research conducted by, for example, the FCC and Ofcom, respectively. Like the mythical beaver that castrates itself in self-defense, the CRTC seems to worry that conducting original research might bias its decisions. Strange.

All of the top brass from Bell, Shaw, Quebecor Media Inc. (QMI) and Rogers attended, sometimes with as many as ten to a delegation. With few exceptions (see below), the Big Four stood as one against almost everyone else, but nonetheless they seem to have set the parameters of discussion around less than a handful of touchstone themes:

  • That we should rely on market forces to the maximum extent possible.
  • Canadian markets are competitive, small by global standards and need big media companies to compete.
  • problems that do arise should be settled one by one after they occur rather than establishing clear regulatory rules before hand.
  • concerns about the anti-competitive potential of vertical integration are mostly speculative rather than real.

Rogers allowed a crack of light to peak through when it broke ranks with Bell, QMI and Shaw to table a “code of conduct” that would require vertically-integrated media firms to sell programming rights to traditional broadcasters, such as the five CityTV stations that it owns. While the others tried to belittle or ignore Rogers’ stand on this point, the CRTC seemed to like the voluntary code of conduct idea very much. I suspect we’ll have some version of it.

Otherwise, Rogers, Bell, Shaw and QMI united behind the view that smaller rivals should not be entitled to a regulated guarantee of fair and reasonable access to their networks or the content rights associated with TSN, Rogers SportsNet, the History Channel or any of the other 100-plus television channels they own between them.

QMI’s CEO and majority owner, Pierre Karl Péladeau, scoffed at the idea that exclusive content agreements were a problem. Bell’s chief regulatory front man, Mirko Bibic called the idea that audiences should be able to access content on any device from any provider, anytime, “preposterous”.

Brad Shaw, the CEO and part of the family that controls Shaw Media, bristled when I intervened in a journalistic softball scrum to ask him to respond to the possibility that concerns with vertical integration and media concentration are not based on speculation and fear mongering but current evidence and recurring historical patterns. After shrinking back into my shoes, he returned to typical patter about how vital it is for Shaw to be “consumer centric”.

Over the course of the three days, Netflix was set up as a formidable threat to the Canadian broadcasting system. This may be a shock to some, but I got the sense that the CRTC is not all that eager to assume this role, despite enormous pressure from Bell, Shaw, QMI and (less so) Rogers, the Over-the-Top Working Group, media unions, arts and culture groups, the Senate Committee on Canadian Heritage as well as a pending Supreme Court case.

When I spoke with Michael Hennessy, Telus’s Senior Vice-President, Regulatory and Government Affairs, he came across as a thoughtful man and seemed to better understand the idea that just because a company owns the medium does mean that it should control the messages flowing through them. Telus’ primary focus is on connectivity, he told me, not content.

Telus’ periodic work with Google, amongst other things has taught the company, he also said, that it is better to grant as much access to outside content sources as possible and push control out to the edges of the network and into the hands of Internet users. One doesn’t have to be a dyed-in-the-wool Telus fan to accept everything that he claimed, but in my view Telus is on the side of angels on this question – even if this has not always been the case.

Telus’ launch of IPTV services over the past few years has been a success by Canadian standards, but obtaining content rights for its IPTV and mobile video services has been a real obstacle, with Bell standing out in this respect since its acquisition of CTV earlier this year. According to a recent OECD study, Canada ranks 19th out of 27 in terms of the percentage of subscribers to IPTV, while rates in Sweden, Belgium and France are four- to ten-times higher (p. 223). One wonders if this low ranking is related to the problems just described and regulatory rules not up to the task of curbing market power across a number of telecom, media and Internet industries?

Commercial broadcasters have been slow to develop online video services, doing so only around the end of 2007, early 2008. It was the CBC, instead, that blazed the way, only to find one of its early attempts to use BitTorrent to distribute an episode of Canada’s Next Great Prime Minister thwarted by Bell’s ‘network throttling’ practices. The big four have accelerated their efforts in the past year, mainly as Bell, Shaw, Rogers, and QMI import the “tv everywhere” from the US so that existing subscribers can access the companies’ own content anywhere, anytime.

Reflecting the fact that commercial broadcasters have been slow on the uptake, Konrad von Finckenstein asked Péladeau why QMI hadn’t launched an online video downloading service to compete with Netflix? The activities of the “state broadcaster” (the CBC), he responded, excessive regulation, and nervous investors were holding it back. The head of the CRTC also asked for evidence that Netflix was a threat to the television system, but was told by Péladeau that he had none.

Smaller players, in sharp contrast, piled anecdote upon anecdote to show that vertical integration is, in fact, a significant problem. Telus, MTS, SaskTel and Cogeco submitted a “joint proposal” as well that sets out a handful of principles that they want enshrined in a sturdy regulatory framework:

  • Access to content by television program distributors and carriers should be on fair and reasonable terms.
  • Subscribers should be able to access the content they want from the device they want anywhere, anytime.
  • Block booking — tying the rights to purchase one television channel to buying several others, among other things – should not be allowed (a stance consistent with CRTC’s favourable view of “skinny basic”, i.e. a minimalist basic cable tv service).
  • A tough regulatory regime is needed before-hand and not after the fact, as the big four would like.
  • The regulator must assume a tough stance toward vertically-integrated telecom-media-Internet conglomerates that possess substantial market power.

Most independent broadcasters more or less agree with these ideas, with some minor tweaks. Despite their merit, however, the evidence to support these principles, was not convincingly demonstrated by anyone.

The fact that evidence was probably never going to carry the day anyway, however, struck me hard on Day Three when von Finckenstein called Telus’s proposal “over the top”. Newly-appointed Vice Chair of the CRTC, Tom Pentefountas, added to this sense when he asked Michael Hennessy if Telus’ “proposals essentially take the ‘free’ out of the ‘free market’?”

Across the aisle from me, Bibic, the regulatory pitbull from Bell who had made more than one CRTC commissioner wince and waiver during his presentation a day earlier, smiled broadly like The Cheshire Cat. Day 3, and the endgame was coming clearly into view.

Day 3 and the endgame was coming clearly into view.

Big, Brash & Bold: Drop all Telecom-Media Foreign Ownership Limits

A new report by the CD Howe Institute came out today. It’s not big, just 3 pages and seemingly informed by a bunch of guys sitting around a table at the Howe’s ‘inaugural meeting’ last week (June 17).

It is brash, and some might dress it up as bold: drop all limits on ownership of telecoms and media industries in Canada, it says. Full stop.

No phase out. No ‘newcomer advantages’, full stop again. No attempt to separate the ‘medium’ (wires, spectrum, sewer access) and the message (broadcasting, integrated suite of ‘content’ from mags to blogs) from one another. A digital free for all, you might say.

Perhaps the gentlemen, and they were with the exception of only a single woman, thought this might be a good idea while they sat around and chatted last Friday afternoon. Apparently, there were not so many women ‘law & economics’ types available to join them, given that all but out of the 16 places apparently went to the guys and boys from Bell (see below). I guess ‘law and economics’ types like Sheridan Scott, a hard liner in these matters, and Monica Auer, who generally takes the opposite tack by speaking eloquently and passionately on the telecom and media workers’ behalf, weren’t available, or any of the other smart dames roaming these circles as I saw, in the minority, at the CRTC’s hearings this week.

I looked at the composition of ‘the deciders’ not just because their gender was so obviously skewed, but because I recognized the names of most of the guys. One in particular leapt out, Jeffrey Church, a University of Calgary economics professor. By all accounts, he’s an excellent teacher. Professor Church caught my eye because, in addition to advising the ‘big 3Ps’ in Canada as I’ll call them — Petroleum, Alberta Beef Producers, Pharma — Professor Church just wrote an economic analysis for Bell as part of the very, very important vertically-integrated telecom-media-Internet hearings now being held by the CRTC.

According to Church in his voluminous 93 page submission on Bell’s behalf, vertical integration is good for consumers and for Canada (p.5). I disagree, strongly, for reasons set out regularly in this blog (e.g. here) and my column for the Globe and Mail on Monday.

It’s not just Church that is so closely tied to Bell, but also Marcel Boyer, Bell Canada Professor Emeritus of Industrial Economics, Université de Montréal, as the CD Howe report indicates on the back of this slim 3 page ‘report’. 2 out of 16 does not a majority make, obviously, but their presence does stand out.

The rest of the lot in this ‘law and economics’ crowd does not seem very adventuresome, either. I know one professor occupying a BCE endowed chair that won’t be called upon, Professor Robert E. Babe at the University of Western Ontario, for he has traced the propensity of telecoms historically to go from limited competition to ‘total consolidation’ on a regular basis.  Let us say that the fact that Howe ‘report’ has zero to say about such notions is not all that surprising.

The 3 page ‘report’ is candid that dropping the foreign ownership limits on everything — telecom, media, internet — will not increase the number of competitors in the market. As it states, “given the small size of the Canadian market, the consensus view saw no major change in the number of national competitors”.

Translation, the big three companies in wireless telecoms — Bell, Rogers, Telus — for instance will still account for about 94% of the market (according to CWTA 2010), but they might be owned by yet a larger foreign based telco (Vertizon, the ‘new’ AT&T, Deutsche Telekom, etc.) or may private equity funds. Me, I have doubts many foreign investors — telcos, priv equity funds, banks — will even come if permitted to do so (or if we want ’em to on such ‘carte blanche’ terms). I’m not alone on this, and hardly radical, given that even the World Bank states that the keys to effective foreign ownership is a ‘strong state’ able to regulate and competition.

Instead, the Council of 15 wise men and 1 smart woman says, drawing on newfangled theory about ‘competitive innovation’ drawn from the right-wing side of Schumpeterian ‘innovation economics’, that “the gains from liberalization would likely result . . . from better performance by telecommunications market participants”. Umm, I hope so, especially because its this same crowd breying for the withdrawal of any meaningful conception of regulation or state intervention. The CRTC’s horizons have been blinkered and public ventures like CANARIE have had their wings clipped. How foreign capital will ‘improve’ performance standards in Canada is not clear to me/self-evident.

The report advocates this ‘regulatory shock and awe’ to be developed in one swell swoop, with no distinctions kept between telecoms and broadcasting, between networks and content, between incumbents and newcomers. The telecom-media-Internet sectors are now so entangled on account of digitization and how people use media that they must be treated together as a whole. Partial agreement there about treating things ‘holistically’.

More targetted measures are suggested as alternative to foreign ownership for whatever “cultural policies” might be left over. Some of these ‘targetted measures’ I believe in — securing financing for content production, shelf space, strong CBC — and they have been promoted by at least two of the same writers involved in today’s 3 page missive (e.g. see Hunter and Iacobucci, with a third author Michael J. Trebilcock).

There are several problems with this “report”, however, that make it’s contribution to public discussion dubious, despite the fact that it will gain much attention.

1. Three pages is not a report and should not be pitched as one.

2. The Council of the Wise is skewed along lines suggested above, ie. by Bell and by Gender. Bell has always had a visible hand in the telecom, broadcasting and media industries, indeed, since it began broadcasting speeches, songs and sermons in the 1880s and took-over the Chairmanship of the 1905 Mulock Commission which had originally been convened to look into the underdevelopment of the telephone system in Canada in the early days of the 20th century.

So, that Bell continues to be front and centre 100 years later, at the dawn of the 21st century, is both a marker of continuity and somewhat unsurprising, but equally suspect/problematic in each of these occasions. The presence of Bell’s hired gun (Church), a Bell sponsored ‘academic chair’ (emeritus, Boyer), and BCE CEO George Cope’s speech at the C.D. Howe two months ago all so bunched up in time and common stance has a whiff of something not quite right about it.

3. While I don’t actually have many problems with increasing competition and dissolving lines between the medium and the message, or the network infrastructure and content, we also need to be upfront about the fact that the former (media infrastructure) are generally scarce and the latter (messages) abundant. In today’s OECD Communication Outlook 2011, it is clear that, generally speaking, the top 2 ‘netcos’ in each of the OECD countries account for between two-thirds and three quarters of fixed and mobile telecom network markets in each of the OECD countries (pp. 56-59). This means:

  • that Netcos generally should be regulated for market power, ‘messagcos’ generally not.
  • ties between Netcos and Messagcos are congenitally fraught with problems and propensity for anti-competitive behaviour.
  • Free speech standards and the values of a ‘networked free press‘ are also at play (and here). As the United Nation’s Human Rights Council recently stated, those standards apply to the Internet and people should have, as Article 19 of the Universal Declaration of the Rights stated before it in 1948, the freedom to receive and impart any information, through any media regardless of frontiers. At the CRTC Hearings on vertical integration the other day, Bell’s Mirko Bibic and Shaw’s brass called the idea that people should have access to any content on any device “preposterous”. The C.D. Howe ‘report’ is oblivious to these considerations.

4. The C.D. Howe report misses reality and the ‘big picture’. Perhaps this is because there is not a whiff of heterodox thinking among the ‘law & economics’ experts who wrote it. Not one ‘ecclectic’ economists, not one wild eyed, crazy lawyer, not a communication and media scholars or a historian in sight.

This is too bad because as long as it continues to be the case, people will continue to talk past one another. And it also means that ‘reports’ like this one, and the policies and approaches that actually do follow close in tow in the ‘real world’, will lack legitimacy.

5. Without being able to expand their horizon, the authors of the C.D. Howe ‘report’ blithely countenance “North American integration”. Economically, as I said above, I don’t have a particular problem with that, although I doubt that things will pan out as they expect, and even that what the Howe folks do expect ain’t much (“better performance” from same number of players).

Politically and culturally, however, there is a problem, not with Cancon and ‘traditionalist/romanticist’ conceptions of culture, but ‘network culture’. Netcos and search engines are now closely allied with state security, military strategy and defense contractors.  It’s probably best to keep some clear blue water between these domains. The authors give no hint that they have even thought of this.

Netcos, ISPs, search engines, etc. are also constantly being badgered by lobbyists as well as politicians in Canada and the U.S. to play a greater role on behalf of  media and entertainment industries (for most recent and strong opposition to this from within just the mainstream’, see here). The approaches have differed, with the last government in Canada wisely turning down lobbyists push to have ISPs play the role of ‘copyright cop’, disconnecting people who repeatedly are identified as ‘copyright bandits’.

The International Federation of Phonographic Industries (IFPI) launched it’s efforts to lean hard on ISPs and search engines, and less on Digital Rights Management (DRM), in 2008. It has been picking off ‘wins’ for this agenda around the world, but not so much yet in Canada.

Yesterday, CNet journalist Greg Sandoval reported that AT&T, Comcast, and Verizon “are closer than ever to striking a deal with media and entertainment companies that would call for them to establish new and tougher punishments for customers who refuse to stop using their networks to pirate films, music and other intellectual property”.  That turn-of-heart, in turn, he reports, was eased by coaxing from the Obama Administration and the National Cable TV Association.

The pressure is already strong in Canada, but so far government and regulators have refused to make ISPs the deputies of the media and entertainment industries or to regulate the Internet as a broadcast distribution medium. On law and order, however, the push is for a stronger state and more compliant Netcos and Searchcos.

While there’s lots of dots to connect between all of these latter points, the key idea is that integration at the network and market levels is going to increase pressure to harmonize tougher matters that impinge greatly on network media, and thus network culture. That the blokes and one women from C.D. Howe have nary a word about this and don’t dare let the phrases ‘network neutrality’ and ‘open media’ cross their lips is a problem of the first order because those concerns, as sure as night follows day, are at the heart of the emergent network media culture. How can foreign ownership be reconciled with these concerns should be the question, rather than if it if good or bad altogether.

In sum, until we can start speaking one another’s language and stop passing off economic and policy platitudes backed by those with big stakes in the game, the nominal ideas presented in this “report” should be shelved and other big questions — vertical integration, for example — put on hold.

Ultimately, Pork, Petroleum and Pharma are not the same as telecoms and media. We need some new thinking for ‘new media’.

Until we recognize this, we’re not going to get very far, at least in a a way that takes into account the full range of issues at hand, rather than the economists narrow measuring rod of value.

Globalive: InstaAnalysis of Wind Mobile Decision

Globalive’s (Wind) ability to operate and compete in Canada’s cellphone market was given surer footings and wider berth yesterday.  That’s the effect of a Federal Court of Appeal ruling that said that the Government acted properly when it used an “order-in-council’ to allow Globalive to enter the Canadian wireless market even though it was clearly owned and financed by capital from Orascom, an Egyptian company that has since passed into the hand of new owners: VimpelCom, a Russian based outfit.

The decision has not yet been posted on the Federal Court of Appeals website, and even using the mighty Google proved fruitless in turning up the original decision, or perhaps I’m just dumb. Several other sources of varying quality, however, are available: here’s Windmobile’s self-serving cant; an online source that looks useful is TelecomPaper, and the law firm Stikeman Elliot offers a thorough review. After this, there’s the cascade of your run-o-the-mill news sources — CBC, the Star, National Post, and Globe & Mail, in roughly that order — that all seemed to follow the basic line that hit the wires (and here).

So, the fact that the actual decision itself is missing is, umm, a problem. It appears that some people have not quite got that we now live in a ‘show me’ environment, where having the actual decision easily to hand would be nice. We should not have to work so hard to find important things, or rely on hand-me downs in the news and information realm.

In December 2009, the CRTC found that the Egyptian-based Orascom owned and essentially controlled Globalive, mostly because it provided the lion’s share of capital investment standing behind the erstwhile Canadian cellphone company. The CRTC denied Wind Mobile a wireless license, thereby stopping it from entering the market.

The Government overturned the regulator, but then found its own path subverted when communication workers (CEP), Telus and Public Mobile successfully challenged the Government’s ability to skirt the Telecommunications Act’s limits on foreign ownership by way of Cabinet Directive before the Federal Court earlier this year. The Federal Court agreed with them and slapped down the Government for using the power of Cabinet Directives to do an end run around the regulator and existing law, putting Wire Mobile in limbo.

Complicating matters greatly, just before the CRTC denied Wind Mobile’s application for a wireless license, Industry Canada had sold spectrum rights to Globalive, in line with Government policy.  With Industry Canada and the CRTC at odds with one another, something had to give. The CRTC was pushed aside in the end, Wind Mobile can go ahead with its spectrum and wireless markets now more firmly in hand.

Cabinet has broad authority to interpret and reconcile such clashes between different branches of ‘the State’, according to yesterday’s Federal Court of Appeal decision.

That the CRTC decision had made the spectrum rights just given by Industry Canada to Globalive useless, demanded that Cabinet step up with a novel interpretation of telecoms law and policy in Canada. It did, arguing in a novel manner that nobody else seems to have thought of that promoting access to foreign capital is part of promoting competition in the marketplace. I can see the link, but think that interpretation is pretty hard to square with the foreign ownership restrictions in the Telecommunications Act.

Many might not complain too much about promoting competition by loosening the foreign ownership rules, although some would (CEP).  Few, however, would agree that the Telecommunications Act is meant to promote access to foreign capital. A plain reading is that its restrictions are designed to limit foreign ownership and control. And few would suggest that it’s okay for the government to do end runs around the regulator and law to achieve changes to the law that it could not obtain in Parliament.

That’s what the Federal Court said in March. That set of principles, however, was thrown out on appeal yesterday by the Federal Court of Appeal, and everything else that the CRTC and Federal Court had said. The Appeal decision accepted the Government’s position. It gave a blank cheque to Cabinet to rule by fiat rather than the Telecommunications Act. And it broadened Windmobile’s scope for action and the security of its spectrum and market access rights.

The decision may delay the introduction of more competition, however, because the ground rules remain murky and the existing foreign ownership rules in the Telecommunications Act intact. The Government may find good reason to move even slower on reforming the law because there is no longer a specific case to prod its hesitant hand.

This state of affairs will serve Wind Mobile and almost all of the other incumbents reasonably well. However, Public Mobile intends to appeal the case to the Supreme Court.

The Communication Energy and Paperworkers will likely join it. As the banner hanging from CEP Headquarters in Ottawa proudly declares, “it’s your’s, own it”, by which they mean telecoms, culture, broadcasting, lumber, energy plants, etc. “The need to maintain Canadian-control of telecom and broadcasting is more critical than ever”, Peter Murdoch, CEP’s VP media, states.  I am not so sure. Is that really true?

I do agree with CEP and PM (Public Mobile), though, that opposing giving Cabinet the authority to do end-runs around regulators and laws, to rule from the top rather than the messy processes of ‘regulation from below’, is a bad thing.

One thing that CEP might take cold solace in is that foreign ownership ain’t gonna happen just because Harper et. al. and the Federal Court of Appeal have opened the Pearly Gates to Canada’s telecom market — big as it is, ranking around eighth or so, depending on whose doing the counting.  But make no doubt about it, that we’ll need rules . . . . , and even then it is not certain how much capital will come.

When the rule of law and regulators clashed with policy and politics yesterday, it was the former that crumbled. Of course, Globalive, and its ultimate owners and investors, Vimpelcom, are the immediate beneficiaries of this court decision. So, too, are customers, a point made with no time wasted by Windmobile Chairman Anthony Anthony Lacavera, and figure-head for the concept that, regardless of where the money comes from, it is Canadians like him and other Directors on Windmobile’s board that are in control.

As Lacavera exclaimed, “we and our 300,000 customers are thrilled with this decision.” Well, maybe not thrilled . . . . . but you know what, he’s not entirely off the mark.

Just yesterday, another OECD report placed Canadian wireless users at the bottom of the international heap for outrageous international roaming charges, 25 bucks/MB for Canadians versus less than $5 for people in Greece and just under $10 for OECD countries on average. The full report can be found here.

Lacavera’s other comments were little more than self-serving cant: “Now we can continue . . . without the distraction and expense of challenges by our competitors to our right to operate.” Ya, sure, whatever.

I do not like it when politics and policy trump law and regulation in a heavy handed way. There’s lots of room to finesse this, but for now I can say that I do not thing that rule by Order in Council is a good way to make policy. It politicizes it. In fact, there seems to be a penchant for this in Canada when it comes to telecom, media and the Internet, as I have shown in a previous post. You can see for yourself by looking at the Privy Council Office’s Order-in-Council database.

The penchant for rule by Cabinet Directive has been ramped since the Chretien Liberals in the mid-1990s and has not abated since. Canadian levels of intrusiveness appear to be high by my estimation points to a certain backwardness in Canada that allows relationships between telecom-media-Internet titans, regulators and the ruling Government of the day to be too close. That’s code, in other words, for the cozy relationship between politics and telecom-media-Internet companies in Canada is a bad thing, anti-democratic and at odds with the ideals a free and open network media system.

About the Other Day: Lawful Access and ISPs in Canada

The other day I pounded away madly on the keyboard about global internet regulation. I was perturbed by the preliminary ‘e-G8’ meetings convened by President Sarkozy that seemed mostly designed to push a regulated Internet on the basis of bringing order to a disorderly and criminal Internet. It was a bad idea I said.

Here, though, I want to speak about the push for similar measures in Canada. As I see things, an open network is caught in the cross-hairs of several forces at the present moment:

  • first, we have the well-known issues of UBB and bandwidth caps that are transforming the open and user-centric Internet into the pay-per Internet;
  • second, we have the copyright industries pushing for ISPs and search engines to become extensions of the copyright enforcement regime;
  • third, each of the ‘big six’ ISP’s ‘acceptable use policies’ contain extensive measures that constrain what people can and cannot do with their Internet connections;
  • fourth, proposals in the Investigative Powers for the 21st Century Act (Bill C-51) introduced in the last Parliament and set to be reintroduced with the new Government’s omnibus crime bill sometime soon aim to retool communication networks in Canada for greater surveillance capabilities and to make it mandatory for telecoms providers, ISPs and search engines to disclose subscriber information, including name, address, IP address, and email address law enforcement official without court oversight.

This post focuses on the latter initiative, and what is known as ‘lawful access’. As with the rhetoric mobilized by Sarkozy, underpinning the push for greater surveillance power and easier access to records of Internet users is the idea that the Internet is disorderly and unruly place.

Yet, we must remember that in Canada, the Criminal Code already covers the Internet and crimes in real space are also crimes in cyberspace, notably child pornography, ‘hate crimes’, and obscenity. In other words, the Internet is not the wild west without the rule of law in place.

The Government wants to, it says, simply update and ‘modernize’ the existing arrangements with the Investigative Powers for the 21st Century Act (Bill C-51), a move which they say is long overdue because the existing laws were put into place when there was no such thing as the Internet. The Canadian Internet Policy and Public Interest Centre (CIPPIC) offers a good historical review of the current bill and its predecessors here.

In some ways, the Government claim is true. Public communication networks have always been intertwined with the interest and operations of the nation-State. That was as true for Roman roads and Venetian canals in the past, as it has been for the telegraph, postal and other media networks that have evolved up until today.

From emergency 911 services, spectrum grants to police and firefighters, and the Defense Early Warning (DEW) line in Northern Canada during the Cold War (and lucrative development ground for what eventually would become Nortel, before it crashed and burned on the embers of dot.com stupidity), the state and communications providers often work hand in glove. Silicon Valley North, as some in Kanata like to say, ain’t next to Ottawa (and the DND, or CSIS, or the Communication Security Establishment) for nothing.

In the past, some heterodox media political economists such as Dallas Smythe and William Melody complained that building networks to high-end national security, military, law enforcement and business needs created gold plated networks that were effectively subsidized by the general telephone subscribers.

Yet, just because there is nothing new in telecoms companies being deeply involved in matters of the state and law, this does not mean that there is not a lot that is new in the Government’s proposed legislation.

The new legislation:

  • is not based on compelling arguments that it will deal better with crimes in cyberspace — child pornography, ‘hate crimes’, and obscenity –than the Criminal Code, without unduly stifling the free of expression in network media spaces.
  • would require telecoms providers, ISPs and search engines to adopt expensive ‘network upgrades’ that expand their capacity to collect and retain ‘general contact data’ for all of their subscribers and even for specific contents of our online communications.
  • to disclose this information to law enforcement and national security agencies upon request.
  • to do so without a court-authorized warrant.

A few journalists and bloggers have issued alarmist calls that the new legislation would effectively outlaw anonymity and certain kinds of hyper-linking. I don’t think so.  Michael Geist and the legislative review of the Investigative Powers for the 21st Century Act done by the Library of Parliament show convincingly enough that that’s not likely to happen.

It will, however, implement several new measures that will skirt, or bypass existing practices: no court orders, wide-scale implementation of news surveillance technologies, and procedures that have left all of Canada’s provincial Privacy Commissioners and others strongly opposed to the Conservative’s proposed new law.

One virtue of the Investigative Powers for the 21st Century Act (Bill C-51) is that it will bring out into the open and formalize in law a set of ‘voluntary’ practices that are already used to combat ‘cybercrimes’, but currently conduced behind closed doors.

Project Cleanfeed, for instance, involves ISPs working hand-in-hand with police to identify and block problematic URLs, mostly for the purposes of blocking access to child pornography and to facilitate investigations of such activities. The RCMP works hand-in-hand with the Immigration and Customs Enforcement (ICE) in the United States and thirty some odd similar agencies worldwide to disable access to ‘illegal websites’, so-called ‘domain name seizures’. The new law would match up with the facts on the grounds as they’ve already been established by ‘the State’.

The problem, however, is enrolling telecoms providers, ISPs and search engines in such processes to begin with. Up until now, ISPs act in tandem with the police through secret lists, no CRTC oversight, no court orders, etc. in Project Cleanfeed. Formalizing the requirement that they continue to take on this role, and to do so at the beck and call of national security agencies and cops rather than a court authorized warrant, takes a very bad route to a potentially good thing. Legalizing ‘rough justice’ and a murky role for ISPs does not sound like a good idea to me.

As I said earlier, telecoms companies have always had to build their networks equipped for national security and law enforcement purposes, and to comply with court orders when they are presented with them. That should continue to be the case today, with more candour and conformity to the concerns of privacy raised by, among others, all of the Provincial privacy commissioners pointed to above.

Basic rule in all of these cases, and regardless of whether it is the state or market interests that are bending basic networks and functionalities (i.e. search, storage, surveillance, etc.) to their purposes, is that gateways (telecom networks and ISPs) should never be gatekeepers. The goal should be to minimize rather than to maximize surveillance and ‘gatekeeper’ powers.

The idea of badly authorized and murky intelligence operations running roughshod on the public Internet is not a dystopian and remote fantasy. Over three quarters of U.S. military communications runs on the public netowrk. All submarine cables landing on U.S. shores must be equipped with electronic surveillance capabilities built to the specs of the U.S. state. Aspects of the common carrier/network neutrality obligations for telecoms and ISP providers in the U.S. were traded off in 2005 in return for major telecoms providers upgrading their networks in line with the asserted needs of a ‘post 9/11 world’.

Under the guise of the ‘global war or terrorism’, all of the major US telecoms and ISPs — AT&T, Verizon, SBC, Sprint, etc. (except, to its credit, Qwest) turned over these capabilities to the National Security Agency to eavesdrop on telephone, email and Internet communications between people in the US and elsewhere in the world. Again, while the objectives may have been legit, the operation skirted the existing laws and the courts found such activities illegal and claims that President Bush had unbound ‘wartime powers’ unjustified as New York Times’ reporters James Risen and Eric Lichtenblau revealed in December 2005 — albeit, after the New York Times had sat on the article for a year.

Congress rewrote the law in 2008 to bring the law into line with the facts that the Bush Regime had established on the ground. The new law also gave AT&T, et. al. retroactive and future immunity from prosecution when dealing with similar requests. A Second Circuit Court of Appeal in New York put the issues back into play recently when it reinstated a lawsuit by human rights groups, journalists, media organizations, labour unions and others who argue that Internet and telecoms surveillance violates their rights to privacy and freedom of expression (See here for a fuller treatment of the issues).

I am concerned that, from the general drift of things in the Investigative Powers for the 21st Century Act, as well as the lessons from the past decade in the U.S. and the choir of voices coming from the G8 last week about the need to ‘civilize’ cyberspace, point in the wrong direction: a more tightly regulated, closed and murky Internet. Basic standards of judicial oversight are removed and capacities expanded. There are pressing issues at hand, but they need to be handled with dexterity rather than the iron-fist of the national security state.

Just for fun, let me point to just one alternative way of doing things: the Icelandic Modern Media Initiative, a drive to adopt the most open and freedom of the press and communication-friendly environment in the world. Here’s a Youtube video outlining some of its ideas and ideals. Imagine. .

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