Code Yellow: Threats to Freedom of Expression, Online and Off, in Canada

This morning the Huffington Post published an article I wrote for PEN Canada as part of its ‘Non-Speak Week’, “a string of events and exchanges exploring the state of freedom of expression here in Canada”, according to the group. The original version of the piece, with links, is reproduced below.

We reach certain points in time, what the critical media scholar Robert McChesney calls “critical junctures”, or that the sociologist and media historian Paul Starr calls “constitutive moments”. Now is one such moment, and choices and decisions made nowcould tilt the evolution of the network media ecology in Canada toward a more closed, surveilled and centralized regime instead of an open one that strives to put as much of the internet’s capabilities into as many people’s hands as possible. The latter approach maximizes the diversity of voices and is essential to any free press — digital, networked, or otherwise — and to the role of communications media in a democracy.

Threats to an open media and internet ecology, and thus to creative and expressive freedoms in Canada, are unlikely to arrive outfitted in jackboots. Instead, they will arise from the slow, cumulative outcome of decisions that will affect levels of media and internet concentration, internet surveillance for law enforcement and national security reasons, and a concerted push to turn internet service providers (ISPs) and digital intermediaries such as Google and Twitter into agents on behalf of the entertainment and software industries’ copyright maximalist agenda.

In terms of media and internet concentration, Canada already has some of the highest levels of concentration and cross-media ownership in the world. The ‘big four’ telecom-media-internet (TMI) giants – Bell, Shaw, Rogers and Quebecor Media Inc. – already control roughly half of the network media economy in Canada. This is set to get much worse if the CRTC gives Bell’s bid to take-over Astral Media the green light in a decision expected later this year.

The problem of media and internet concentration is crucial to freedom of expression for many reasons. First, large TMI conglomerates are often rickety enterprises that spend more to pay down the debt incurred by acquisitions and mergers than good journalism, investment in new technology and infrastructure, or supporting open media.

Second, these same entities have turned to soft tools of censorship such as usage-based billing and bandwidth caps to protect their investment in legacy media and which are transforming the user-centric internet into the pay-per Internet. Such measures constrain what we can and cannot do with our internet connections. They privilege incumbents’ own online video services while discriminating against other sources. Bandwidth caps are not unique to Canada, but the fact that they are near universal among the big players and set at very low levels with high prices relative to global standards, does set us apart from the rest of the world.

Lastly, a small number of massive integrated media and internet companies are more regulable than many entities of different stripes and sizes. In short, a few big firms make for juicy targets for those who see them as potential tools in their own efforts to push either a law and order agenda, as was the case last year with the Investigative Powers for the 21st Century Act (Bill C-51), or part of the arsenal of a strong copyright enforcement regime, as some sought but did not fully achieve with the Copyright Modernization Act passed earlier this year.

I think we need to push back against the tide. As part of my efforts to do so, over the past year I joined with the Digitally Mediated Surveillance research project and the New Transparency Project to create a video to discuss why internet surveillance and the Harper Government’s proposed lawful access bill specifically are bad for privacy, democracy, civil liberties and an open internet.

That bill died last Parliament and was to be reintroduced with the Government’s omnibus crime bill passed earlier this year. Its essential aim was to have ISPs and telecommunications providers retool their networks with far greater surveillance capabilities and to require telecoms providers, ISPs and search engines to disclose subscriber information, including name, address, IP address, and email addresses, to law enforcement officials without court oversight.

Fortunately, this aspect of the omnibus bill was stripped out at the last minute in the face of withering public criticism led by groups such as Open Media, dissent within the ranks of the Conservative Government, and even a broadside against it in one of Rick Mercer’s famous rants.  The victory is significant, but a similar bill sits in the wings waiting for an opportune moment to be reintroduced. Moreover, University of Ottawa law scholar Michael Geist observes that telecoms providers and ISPs already comply with over 90% of requests from law enforcement requests for information about their subscribers without a warrant.

As I said earlier, a few massive firms are more likely to be pliable entities than recalcitrant ones. This example shows that this is, in fact, the case. Such murky ties outside the formal rule of law do not bode well for freedom of expression in Canada, online or off. For an open network media ecology and citizen’s rights to autonomy and to express themselves freely to flourish, the collection, retention and disclosure of personal information between private media companies and the state should be minimized, not maximized.

The final factor in this trilogy of forces bearing down on an open internet is the copyright maximalist agenda. A strong version of this was visible earlier this year in the United States with the Stop Online Piracy Act, or SOPA. 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 to cut-off payments, (4) and advertisers to cut-off suspect sites from advertising placement, among other things.

The fundamental remaking of the Internet such activities contemplated unleashed a firestorm of protest, ultimately leading to a tactical withdrawal of SOPA. Yet as SOPA was being withdrawn in the US, copyright maximalists here in Canada were on a roll.

They deployed their hyperbolic rhetoric that carved up the world into good guys and bad guys, with repeated references to “wealth destroyers”,  “parasites”, “rogues” and “pirates” to make their case for why Canada needs strong digital locks, longer copyright protection terms, and for ISPs and search engines to step up to the plate on their behalf.

Copyright maximalists spurned claims that their agenda had anything to do with freedom of expression, but last year a United Nations’ report on internet and human rights 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).

Article 19, in case you didn’t know, sets out freedom of expression and opinion as a fundamental human right at the global level and calls on the 167 countries that are party to it to promote and protect such rights to the fullest extent possible.

In a powerful testament to the ability of “the Public” to influence arcane matters of policy and law, the copyright maximalist’s got only a fraction of what they wanted: digital locks yes, but no term extensions or requirement that ISPs, search engines and other digital intermediaries serve as tools on their behalf.

These examples suggest that when it comes to freedom of expression, there will be no smoking gun, just a slow tilt biasing the evolution of the telecom-media-Internet infrastructure in favour of greater control on behalf of incumbents, the state and copyright maximalists. For freedom of expression to flourish, we need to keep our eyes wide open to such efforts by stealth that seek to transform the network media ecology into one that is more closed, controlled and regulable.

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.

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. .

Global Internet Regulation: Tightening the Screws?

Last week in the run-up to the G8 leaders meeting in France, French President Nicolas Sarkozy convened a conference among prominent media and Internet types. The goal: how to ‘civilize’ the Internet.

As Sarkozy said,

The internet is the new frontier, a territory to conquer. But it cannot be a Wild West. It cannot be a lawless place, where people are allowed to pillage artistic works with no limits.

And you know what, he’s right. The Internet should not be a lawless frontier disconnected from the real world, and it is not. It is already deeply shaped by the same legal, political, economic and social forces that govern our actions daily.

That said, the crux of the approach being advocated by Sarkozy, and perhaps to come out in a communique at the end of the G8 meetings, is that Internet Service Providers, search engines and others are being ‘deputized’ to act on behalf of law enforcement officials and vested interests in the entertainment and ‘copyright industries’ (see the New York Times story as well). That is, they are being turned into adjuncts of both the state and vested interests to deal with matters that are, some more than others, sordid ones indeed: child pornography, money laundering, counterfeit goods and software and, of course (and in some instances) large-scale enabling of copyright infringement.

Of course, I’m the last to stand in support of child porn, money laundering, industrial scale piracy, and so forth. However, I am opposed to the full-court press that is now coming from three directions that aim to turn ISPs and search engines from being ‘gateways’ to the Internet to ‘gatekeepers’.

First, and largely since 2008, ISPs have come under a full-court press by the Recording Industry Association of America and the International Federation of Phonographic Industries (IFPI) to adopt a notice and take-down procedure. In this situation, once notified of allegations of copyright infringements, ISPs would block Internet users access to such content and, in some cases, cut off repeat offenders. Search engines would essentially make such content disappear by turning up a blank when suspect sites were queried.

The problem with this is already well-known: the gap between what is allegedly an infringement and what the law in each country actually determines to be so is big indeed. What typically happens is that private contractors using automated ‘notice and take-down’ systems take a shotgun approach, capturing much that is on the side of right in the process.

People caught in the cross-hairs have a steep hill to climb to prove their innocence. That is wrong because it turns presumptions of innocence on their head. Here’s a link to the Electronic Frontier Foundations “Takedown Hall of Shame” to get a sense of how overly-broad notices also curtail freedom of expression.

Second, Digital Rights Management (DRM) technologies began to go out of favour in the last few years, but as they were being abandoned, after 2008 the RIAA and its international counterparts were signing new memoranda of understanding with ISPs that enrolled the latter in the effort to combat piracy. The RIAA and IFPI have also pushed hard for national laws to accomplish the same ends. In other words, the RIAA is using technology, States and Markets to accomplish its goal of clamping down on content.

Sarkozy and the French Government were early and enthusiastic endorsers of such efforts and the three strikes law in France is considered by most to be particularly draconian. The IFPI has also chalked up several wins for such measures in other countries as well, including Sweden, South Korea, Taiwan and the UK, among a few others (see pp. 25-27).

Now, however, and at least in Britain such measures are under severe challenge in the courts by way of initiatives launched by two of Britain’s biggest ISPs, BT and TalkTalk, and in the court of public opinion, where they are losing badly. Yet, just as such measures come under severe criticism and challenge in some countries, they are being expanded in others.
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The Harper Majority, Telecoms Foreign Ownership and Canada as Digital Free Media Haven

Canadians are all a tizzy about what the Harper majority might mean across a whole range of things. There’s a panopoly of issues within the communication and media realm that might be up for quick action: foreign ownership rules, the re-tabling of copyright legislation, the potential regulation of Online Video Providers (OVPs), and the possibility to turn back the tide that his now transforming the Internet in Canada into a pay-per model governed by the incumbent’s ‘business models’, bandwidth caps and UBB.

For now, I want to focus on the first issue: the telecoms foreign ownership rules and the potential that any changes taken in that regard might be harnessed to a bigger project, namely turning Canada in a digital, ‘free media haven’ governed by the highest standards of the networked free press possible (see here and here, as well).

A version of what follows was published in my column for the online version of the Globe & Mail today, so here I will expand on a few of the issues and add a few links, as I usually do.

The Conservatives are well-known for wanting to liberalize the current rules. Academics and consultants such as Michael Geist and Mark Goldberg have also called for greater foreign investment in Canadian telecoms. Most banking analysts feel the same way.

Konrad von Finckenstein, CRTC chief, is also in favour, but frets about how to deal with the slew of integrated telecom-media behemoths that he has recently blessed: Bell Media, Roger Media, Quebecor, Cogeco, Shaw, (but not Telus). In other words, how to open the gates for more foreign investment in telecoms but not broadcasting?

Those in favour of changing the existing rules believe that doing so could usher in more investment in network development, more competition, less bandwidth throttling and far greater consumer choice. The current incumbents who dominate the telecoms, media and Internet markets in Canada would, so many appear to believe, be forced to compete head-on with the big global players – AT&T, France Telecom, T-Mobile, Japan’s NTT, China Telecom – for customers.

The goals are laudable, but are they realistic?

Some suggest that movement on the issue will be slow because the Tories do not have a clear strategy to deal with it. Yet, the Government has had several options on the table since 2006:

• 1. removing all foreign investment limits;
• 2. raising the limits from the current twenty percent to just under half;
• 3. permitting foreign investment only in new companies that have less than 10 percent market share.

The only strategy the Government doesn’t have is keeping the status quo. Expect change soon.

The Government’s Cabinet Directive in 2006 instructing the CRTC to rely on market forces to the maximum extent feasible also tips its hand. Indeed, the Government tried to do an end run around the law through another Cabinet Directive overturning the CRTC’s decision to reject Globalive’s (Wind Mobile) bid to become a new wireless player on the grounds that it was not Canadian owned and controlled, as the Telecommunications Act (sec. 16) demands.

A Federal Court in February stopped that effort in its tracks. At least a formal change to the Telecommunications Act’s foreign ownership rules would have the virtue of bringing the law into conformity with the facts on the ground, i.e. Wind Mobile is up and running.

Even if we assume that allowing greater foreign ownership is a good thing, and I will offer a few more reasons below as to why it could be, many pesky issues remain. For example, what if the Government decides to just go with option #1: Allowing greater access to foreign capital markets for new comers?

The intended beneficiaries, of course, are Wind Mobile, Mobilicity and Public Mobile, but would it also apply to Quebecor, a company that is a newcomer to wireless but well-entrenched across the rest of the media? Somehow that doesn’t seem right.

That raises the larger issue about how to disentangle telecoms from broadcasting? The fact that telecoms and broadcasting are becoming more intertwined is becoming clearer by the day as Netflix gains a stronger footing in Canada and as Google and Apple appear routinely before the CRTC and Parliamentary Standing Committee on Canadian Heritage.

Indeed, when the Americans negotiated the NAFTA and WTO deals they anticipated that digitization would soon dissolve the boundaries between telecoms and broadcasting and bring the ‘cultural industries’ within the reach of the ‘global trade regime’ as a result of ‘technological forces’. MIT scholar Ithiel de Sola Pool argued much the same thing in his 1983 classic, Technologies of Freedom, many years earlier.

Yet we also need to ask if loosening the rules will lead to the outcomes that so many expect? AOL, AT&T and PSiNet were important players in telecoms and the Internet in this country during the dot.com era, but where are they now?

They have long since retreated, collapsed or gone bankrupt. The point being that this is not the rah-rah days of globalization in the late 1990s, but one when foreign investment in telecoms is at a low ebb.

Just as the “old” AT&T was retreating from Canada, it was also selling off a slew of networks across Latin America in the mid-2000s – mostly to Mexico-based TelMex. The trend continues.

Just last month, Deutsche Telekom sold its T-Mobile wireless operator in the U.S. to the resurrected ‘new’ AT&T. Pundits can believe all they want that AT&T, France Telecoms, Deutsche Telekom, NTT, and so on are lining up to enter Canada, but evidence suggests otherwise.

The lesson from T-Mobile is that foreign capital investment is hunkering down rather than trying to conquer the world. As two World Investment Reports from UNCTAD in 2008 and 2010 observe foreign investment and cross-border mergers & acquisitions in telecoms have fallen considerably from their late-1990s peak throughout the decade, and have yet to recover, especially after the ‘crisis of 2008’.

The sale of T-Mobile also reveals that even the massive U.S. wireless market is unable to sustain robust competition. Three players dominate the U.S. wireless market: AT&T, Verizon and a smaller Sprint/Nextel.

In other words, foreign ownership is no sure-shot solution for concentrated telecom, media and Internet markets. In fact, the World Bank’s message since the early 1990s, amongst others, is that foreign capital investment in telecoms only delivers the good when it is properly regulated and used to launch new rivals, rather than to acquire incumbents (i.e. ‘greenfield investment’).

None of this is to say that we should avoid more foreign investment in telecoms. In fact, the history of telecoms in Canada has been bound up with foreign capital since the first telegraph lines linked Toronto to Buffalo and New York in 1846 and the trans-Atlantic cables created a vast Euro-American space of capital, markets, migration and information with Canada at the hub in the 1860s and 1870s.

Today, greater foreign investment could not only be used to increase the availability and use of broadband telecom and Internet services and foster more competition, but as a stepping stone to far-reaching efforts to transform Canada into an open ‘digital media haven’.

New rules would provide an incentive for greater foreign investment, while our cool climate could entice Amazon, Google, Rackspace, Microsoft and others to build their massive ‘data warehouses’ on Canadian soil because it is cheaper to run these energy hungry facilities here than in the United States. Our stronger protections for personal information could put vast stores of data beyond the reach of the U.S. Patriot Act and keep the ‘domain name snatching’ operations of Homeland Security at bay.

Birgitta Jonsdottir, the Icelandic Member of Parliament, has similarly proposed to make her country a haven for “digital free speech” – similar to what the Cayman Islands is for banking, but with the higher purpose of advancing human rights, democracy and freedom of expression. Seen from this angle, relaxing foreign ownership rules in Canada could serve as the cornerstone of efforts to foster an open telecom, media and Internet system governed by the highest standards of a networked free press in the world (also see here).

For that to happen, however, the new majority Harper Government will have to embrace openness, freedom of speech and democracy just as firmly as it now has its hands on the levers of the state.

Politics and the Press: Counting Endorsements by Cdn. Press Group, 2011 Election

Well, you know what would be a lot of fun?  Counting up the number of endorsements each newspaper in Canada gives to each of the Prime Ministerial candidates.

There are roughly 100 daily newspapers in Canada. So far, four newspapers have registered their endorsements for Prime Minister: the Globe and Mail,  National Post, Times Colonist and the The Province. All have endorsed Harper.

On the one hand, one could say that there’s 96 papers to go. That would be a mistake.

The Globe and Mail and National Post are national papers and agenda setters. Besides, the last three on the above list all belong to one group of newspapers: PostMedia, the reincarnated Canwest.

Post Media still has ten papers to go across the country.  Will they all lean the same way, one city after another?

And how about Quebecor’s Sun Media, with its eighteen newspapers scattered in major and minor cities across Canadas, to say nothing of its much vaster holdings across the media?  Will they step on the scales in the same way, further proof that rather than a watchdog, Peladeau’s Quebecor Media (QMI) is the populist mouthpiece of Harper and Gang?

I think building such a list of all the newspapers in the country might be a lot of fun.  We can even work this stuff out together.

Here’s a handy list of all the major newspaper ownership groups and all sixty-one of the daily titles held under their respective umbrellas, most with links direct to each title. Pick your newspaper from the list, watch for the endorsement, then send it to me: presto, a national snapshot of whether ‘editorial opinion’ in the press corresponds at all to ‘public opinion’ on the streets. No prizes, no gimmicks, just a ‘crowd-sourced’ creation.

For the time being, I’ve created a simplified list below. It brings us up to date as of the end of April 29th and identifies the 9 major newspaper ownership groups in Canada that account for 61 daily newspaper titles just mentioned and roughly 95 percent of newspaper industry revenues.

As individual papers within these groups announce their endorsements over the next 24 hours or so, I will tally up the results. Again, it’ll really help if some people look at the ‘handy list’ above and send in a link to your local daily newspaper when it takes a stand. In the meantime, here’s how things stand:

Parent Group & Titles	Mrkt. Share($ 2009)	Dailies / Group	CPC	Lib.	NDP	Bloc	Green
Post Media (former Canwest)	27%	12	3
Sun Media (QMI)	25.9	18
Toronto Star	13.9	1
Globe & Mail	7.2	1	1
Power Corp/ Gesca	9.8	7
TranscontinentalMedia	3.2	11
Halifax Herald	2.2	1
Brunswick News	2.1	4
9 Groups Total Tally	61 Titles	94.2% Market Share	4

Harper’s standing at a perfect four for four.

My point is not to fetishize numbers and charts but rather to set up a question, and it is this:

If, in a representative democracy, a free press is suppose to reflect a plurality of a society’s voices and political forces, shouldn’t we hope that the range of editorial opinion in the press comes at least somewhat close to matching up with public opinion?

If so, the fact that Harper is currently standing four for four suggests that we’re off to a bad start.

Voting’s a pretty good proxy for popular opinion, so let’s set out some standards using that measure to help us assess the relationship between ‘editorial opinion’ and ‘popular opinion’. When Canadians went to the polls for federal elections in 2008, they voted as follows: CPC 37.6%; Liberals 26.2%; NDP 18.2%; Bloc 10%; Green 6.8%.  National turn out was 58.6%

Now, three days before the 2011 election, the pollster Ekos says that public opinion is lining up this way : CPC 34.5; NDP 29.7; Liberals 20%; Green 6.9%; Bloc 6.3%. Quite significantly different, actually, on close inspection. Advance polls were up by a third over the last election. People are in, even if somewhat begrudgingly.

Harper’s Conservatives have stayed remarkably steady since the last election and Ekos polling of the last few days. One third of the voters dig Harper. Four seasoned editorialists of four who have spoken, however, are ready to hand him the reigns of power despite their own acknowledged lengthy and, truth be told, tawdry list of abuses.

Anyway, the point is not to make the case against Harper but rather to suggest that there’s room for dispute and it would be nice to see such divisions reflected in the range of editorial sentiment available. So far, it has not.

Moreover, the endorsements that are in are not just any endorsement, but from two of the major national agenda-setting papers — The Globe & Mail and the National Post (Post Media).

Only the Toronto Star, so far, has staked out an “anything but Harper” editorial on the 28th. It will announce its ultimate verdict tomorrow.  Liberal, Layton or Coalition?

Now, to be sure, editorial opinion is not the opinion of the press as a whole. Nonetheless, it is one critically important indicator.

It is also an important questions about the free press and journalism in this country to know whether or not editors have to tow their respective owners’ line. Will each pen something ‘unique’ for the city they serve or broadly endorse the same candidate for PM right across the chain of a dozen (PostMedia) to a dozen-and-a-half newspapers (QMI) in one city after another across the country?

Of course, there is more diversity across the rank and file journos that fill out the rest of the pages of the press, but it would be nice to know that there’s some diversity in the editorial ranks, and a least a slice of clear blue sky between editors and the 9 entities that own the newspapers that they have been appointed to run.

4 Phases of Internet Development: From the Open to the Contested Internet

I’ve just come across what looks like a very interesting article by John Palfrey, a Harvard Law School Professor. You can find the article here.

Here’s the basic gist of the article, in his words:

The four phases of Internet regulation are the “open Internet” period, from the network’s formation through about 2000; “access denied,” through about 2005; “access controlled,” through the present day (2010); and “access contested,” the phase into which we are entering.

The paper draws on a decade of interdisciplinary work conducted by members of the Open Net Initiative, a group that consists of researchers who I have long thought have been doing some of the best work on the topic at the Citizen Lab at the Munk Centre, University of Toronto (Prof. Ron Deibert, principal investigator), the SecDev Group (Rafal Rohozinski), and the Berkman Center (Palfrey and Jonathan Zittrain).

Secret Surveillance and Hereditary Kings: Putting a Check on Unlimited Network Surveillance

On Monday (March 23) a Second Circuit Court of Appeal in New York reinstated a lawsuit by civil liberties and human rights groups, journalists, media organizations, labour unions and others who argue that Internet, telephone and other electronic communication surveillance in the U.S. violates Constitutionally protected rights to privacy and freedom of expression.  The gist of the case is that the groups do have standing even though they are unable to prove whether or not their communications are actually under surveillance or not.

The case is a continuation of running attempts over the past five years to reign in claims that the President has unchecked powers to authorize the National Security Agency (NSA) to spy on the electronic communications of Americans.  The process was first brought into the light of the day in December 2005 by New York Times’ reporters James Risen and Eric Lichtenblau. However, even then Risen and Lichtenblau’s coverage had been held back for a year because of the NYT’s deference to Bush Administration assertions that publication threatened national security (see mea culpa by NYT public editor Byron Calame, Jan. 1, 2006).

Despite being found to run afoul of existing law and the Constitution (see below), nobody ever put a stake through the heart of the Bush Administration’s illegal warrantless surveillance program. Instead, it has been continued by the Obama administration and given a retroactive legal footing with the 2008 Foreign Intelligence Surveillance Amendments Act. Consequently, the electronic surveillance of communications of Americans making international phone calls and using the internet to correspond with others outside the country is likely still alive and well, complete with secret data rooms and dedicated network connections linking all of the major U.S. telecom companies main switching centres to the NSA.

For those interested in a fuller treatment of the issues involved up until late 2007, I published an article in the International Communication Gazette in 2008.  You can find it here.

In its original form, the NSA’s warrantless electronic surveillance programme was authorized by President Bush on the pretext that he could do so using the claim that wartime presidents have virtually unlimited powers to do whatever it takes to prosecute a war. And we must remember that the Bush Administration used 9/11 to unleash a global war on terror that knows no set limits either in terms of how long it will last or where it will take place. Putting the two together — unbound powers of Wartime Presidents and war without end — the Bush Administration made unbound claims that it could it could do as it pleased, including authorizing electronic surveillance outside the normal process established by law of judicial review by the Foreign Intelligence Review Courts.

Sometime shortly after 9/11, the NSA began tapping into the telecom networks and switching hubs of AT&T, Verizon and most other big US telecoms firms (except, to its credit, Qwest) to eavesdrops on telephone, email and Internet communications between people in the US and elsewhere in the world. The program targeted up to 500 people at any one time and thousands overall in a bid  to monitor the electronic communications of people suspected of having ties to Al-Qaeda and other terrorist groups, and thus to pre-empt terrorist plots.

The two major cases dealing with these issues — Hepting v. AT&T and ACLU v. NSA — are replete with sections of the government’s case ‘blacked out’ on account of unspecified claims of national security. The cases also take on a Kafkesque tone with the Government’s claims that it was impossible to proceed with the cases at all because doing so would reveal the existence of ‘state secrets’.  And without being able to discuss the matters, well, the people involved couldn’t prove anything.

Over and against the administration, stood those representing journalists, academics, writers and lawyers who argued that they had been illegally caught up in the electronic drag-net because of their work involving Muslims living abroad. The president lacked authority, they stated, under the AUMF, the Constitution or any law to create the secret programme. Carolyn Jewel, a writer of futuristic action and romance novels, claimed that the surveillance programme made it impossible for her to talk ‘openly about Islam or US foreign policy in emails to a Muslim individual in Indonesia and that she could no longer use the Internet as part of her research.

In the ACLU v. NSA case, Judge Anna Diggs Taylor was blunt in her decision: the surveillance program was illegal and unconstitutional. She further argued that the claims before the court were not speculative and general, but ‘distinct, palpable, and substantial’ (ACLU et al. v. NSA et al., 2006: 22). The activities, she stated, crippled plaintiffs’ ‘ability to report the news and … to effectively represent their clients’ (ACLU et al. v. NSA et al., 2006: 20).

In exceptionally strong language, she disparaged Bush’s claims that his authority stemmed from the ‘inherent powers’ clause of the Constitution or the Authorization of Use of Military Force — a law hastily passed within days of 9/11 (ACLU et al. v. NSA et al., 2006: 33–41). To these claims of unfettered authority, Taylor sharply retorted: ‘There are no hereditary Kings in America’ (ACLU et al. v. NSA et al., 2006: 40).

The administration withdrew for the next six months, but in January 2007 it announced that the surveillance project would continue, but only after warrants were obtained according to the rules of the Foreign Intelligence Surveillance Act and the Foreign Intelligence Review Court. In other words, the Bush Administration would follow the law.

Even that, however, was not enough. On July 10 2008, the Foreign Intelligence Surveillance Act was changed to, essentially, make legal what was previously illegal. Just as importantly, the new law granted telecoms companies such as AT&T, Verizon, Sprint, etc. immunity from prosecution, either for their activities in the past or in the future.  In other words, U.S. telecoms companies got a free pass despite the fact that they were, by court decision, acting in concert with the government in ways that were beyond the pale of either the Constitution or the law.

The decision on March 21, 2011 by the NY Second Circuit of Appeals is the next phase in this process. In many ways it was a rehash of issues that have already played out in the past, but with the crucial distinction that the ACLU and the others involved now have the new Foreign Intelligence Surveillance Act in their sights. If successful, the sections of the Act granting extensive actions to the Executive to authorize surveillance and for such activities to be conducted outside of formal processes of judicial review could fall on the grounds that they are unconstitutional.

One of the travesty’s of the current case is that the Obama Administration has simply carried through with the precedents set by Bush.  This is another major blemish on the Obama Admin’s original claims to establish some clear blue water between itself and its predecessor.

Thus, in the current case, many of the same players are involved, with the Executive, NSA and telecoms companies lined up on one side against journalists, media organizations, minority (e.g. read Muslim) groups, and civil rights groups, on the other. And again, claims are offered by the former that to even discuss the matter would be to reveal ‘State Secrets’ — a catch-all maneouvre that seeks to stop things dead in their tracks before they even get started by ruling that any kind of discussion of the matter is, simply, off-limits because of the wide ranging powers of the President that are in dispute.

And similar, too, are comments by journalists such as Noami Klein and media organizations such as the  leftish magazine that has been around since the 1865, The Nation — the oldest weekly magazine in the U.S. — that the spectre of unbound surveillance has a ‘chilling effect’ on free speech and freedom of the press.

As Naomi Klein stated in the Globe & Mail piece today, “The issue is that we think that the activities that we do could fall under these broad definitions”. When asked whether she herself was the target of such surveillance, Klein responded, “I have no idea whether they are or they aren’t”.

And that’s the point: the extraordinary powers and secrecy granted to ‘wartime presidents’ makes it impossible to penetrate the veil of ‘State Secrets’ and to know just where one stands. As a result, speech is chilled, the free press trumped by unchecked powers of the State, and privacy turned into a poor shadow of itself.

The decision on Monday by the New York Appeals Court is to be applauded. As the decision to go ahead with this legal challenge states, those pressing the case do not have to show that they are actually under surveillance, because given the broad claims of the national security agencies and the President this would be impossible to prove. It is enough, as the court state, that “allowing the executive branch sweeping and virtually unregulated authority to monitor the international communications . . . of law-abiding U.S. citizens and residents”, at least on the surface, appear to be an affront to the Constitutional protections of free speech and the free press, privacy as  well as the restraints that aim to prevent presidents, whether Bush or Obama, from acting like, to use Judge Anna Diggs Taylor’s words, “hereditary kings”.

This is a topic that, for Canadians, we also need to examine. This because are own Prime Minister Harper often appears to have torn a page from the Bush Administration’s playbook and sets himself up as an authoritative leader. As a wartime Prime Minister, just what kind of electronic network surveillance has been authorized in Canada?  And to what extent have the telecoms companies gone along with them?

From WWI onwards, the fact that trans-Atlantic cables linking not just Canada, but the U.S. as well, to Europe and the rest of the world have run too and from Nova Scotia and Newfoundland have made them an integral part of the Euro-American surveillance system. It is unlikely that this is still not the case today, although someone needs to take up the challenge of doing the digging to find out.

Is the Pay-Per Internet Fair or a Menace?

Central to debates over bandwidth caps and usage charges in Canada are very real questions of fairness.

The claim that people should pay for the Internet according to how much they use it has a powerful, yet superficial appeal to it. After all, we pay for almost all other goods, why not for the Internet? And why should ‘excessive users’ be subsidized by average or low-end users? Upgrades to networks are expensive, the big telecom and cables companies invest billions per year, and someone has to pay for all this.  It should be those who use the network most.

This is the common sense bedrock of claims made by both the CRTC as well as big telecoms and cable providers like Bell and Shaw (listen here at around the 1hr,45min – 2hr mark). They are also commonplace in everyday discussions about the Internet as well.

However, the problem, as Albert Einstein once said, is that these are the kinds of questions that need to be addressed on a different level than which they are asked. Even just taking these questions as posed, with their market-based criteria set as the barometer of what a rational response should look like, there are many problems with such reasoning.

First, there is no indication that the unlimited Internet model is compromising the dominant cable and telecom companies’ ability to invest in network upgrades. Indeed, in the last fifteen years, Internet Access has added a brand new line of industry worth $6.5 billion to their bottom-line.  That is a lot of money by any count.  It is roughly equal to the size of the cable and satellite tv distribution sector, which took around half-a-century to reach this size. Despite this very substantial new source of revenue, there is no evidence to suggest that there has been an increase in network investment to match.

Telecoms companies have always been confronted with the question of whether or not to charge high prices for access to limited facilities, or to increase the use of much higher capacity networks through cheaper costs. They still are. The “cheaper rates/bigger network” view leads to increases in people’s access to communication facilities and contributes to society and economy-wide benefits. The high price/limited facilities view, in contrast, prioritizes elite users and leads to the under-development of networks, either in terms of ‘cutting edge’ technology, extension to under-served areas and groups, or both.

Each time that that the major players have been faced with this choice, they have initially clung to the high price/limited facilities view, as the experience of the US, Canada, Britain, and indeed worldwide shows.  However, most key general purpose network technologies since the mid-19th century — the telegraph, telephone, Internet — have been forced over time by political pressures, new rivals, and public discontent to adopt the cheaper rates/bigger network approach.  The result in each case has been the transformation of each new generation of network technology from luxury into necessity, but not without a fight.

They pay-per model of the Internet in Canada aims to reverse this trend, but as is all-too-plain to see, this will not happen without a fight.  Like their predecessors, the big players will kick and scream in opposition to the drift of events.  Hopefully, like their distant cousins, they too will lose the fight

To be sure, Canadians are heavy Internet users by global standards, although we must never lose sight of the fact that over one-fifth of the population still do not have Internet access (also see here). The rest, however, tend to be avid users. Indeed, Canadians have always been ‘early adopters’ and intense users of new communication and media technologies. This is still the case.

The average Internet user in Canada spends 46 hours per month online. This is twice as high as Australians, and much more than the 30 to 34 hours the average user spends on the Internet in the UK, US and South Korea. They also view the most video online. In January 2009, 21 million unique Canadian viewers, or 88% of those who use the Internet, watched an average of 147 online videos each, compared to 135 in the UK, 108 in Germany, 90 in the France, and 88 in the US. They are some of the most generous contributors to Wikipedia, the co-operatively produced ‘go to’ online encyclopedia and eighth most visited website in the world. In other words, Canadians are both enthusiastic consumers and contributors to digital information universe.

The “market” should adapt to these realities rather than trying to dampen them. Government policy should do the same,  rather than using price and other economic measures to, as the CRTC has stated, “discipline” excessive users.  Instead, however, at least for the time being, both groups are clinging to the old ‘high prices/limited facilities’ strategy.  This is not good for Canadians or for Canada.

The Government has indicated a willingness to revisit the controversial UBB decision of January 25th, but Industry Minister Tony Clement appears unwilling to do more than that. This, however, is far from adequate, as I have noted in an earlier post. It will leave the basic provider controlled, pay-per model in place for the overwhelming majority of Canadians. It is the ‘locking in’ of a new model of the Internet that needs to be opposed, not just the very last step in the big player’s decade long run at squashing competition and killing the open Internet as we know it.

Claims that the pay-per Internet reflect market demand have been made before, notably in the US where Comcast and Time Warner have both pushed similar initiatives. However, both were forced to back off in the face of a consumer backlash. They have also had to hold back when other significant competitors are in the market. As a Pew Internet and American Life study in 2009 showed, not surprisingly, the greater the number of ISPs, the lower the price — to which we can add, the more the providers there are, the greater the chance that bandwidth caps will not exist or be vastly higher than in the Canadian context.

We should also recognize that today’s villified ‘bandwidth hog’ will become tomorrow’s mainstream user in relatively quick order. Canadians working from home regularly use 500 MB to 2 GB per day uploading graphic design work, software code, catalogues, brochures, free lance journalistic pieces, video and a whole lot more. Decentralized creativity spread out to the ends of the Internet into people’s hands also fosters even more creativity and innovation. A kind of thinly-veiled high-brow elitism also characterizes much of the discussion of so-called bandwidth hogs, with downloading tv and films from Netflix, or watching Youtube videos set up as frivolous activities undeserving of lots of bandwidth and affordable costs. But why not?  It’s also true that about 13 percent of online traffic is of, let us say, an ‘adult content’ kind. Who will champion this juicy tidbit as another reason for cheap bandwidth?  Obviously, however, open channels of communication allows us to do a lot in the privacy of our own home that we might not otherwise drag into the public arena.

We also need to look at this from the angle of creativity.  A good example is, even if you don’t particularly like the show, the TV program Sanctuary that now airs on cable and satellite channels all over North America.  It got its start as an Internet-based television series produced in Vancouver and went big in 2009.  It was the first ‘made-for-Internet TV’ series that crossed-over into commercial broadcast television rather than the other way around. The thing is, you don’t want to hobble creativity at the outset by imposing punitive charges.

Imposing bandwidth caps and the pay-per model also causes the budding publisher of an environmentalist newsletter, a feminist magazine, a hunting enthusiasts’ website with lots of pics and stories to be told to second guess what they’re doing if the goal is to just give things a shot and see how it all works out.  Much of this kind of activity is done for reasons other than a buck to begin. Of course, over time, some of these people may well decide to make a living out of their interests and hobbies. Than then can migrate over to a commercial service, and there is nothing that stops the big providers from doing just that.

But it’s not just P2P, Porn, Youtube and the bolt of success out of nowhere that are at stake, there’s some pretty decent high brow stuff out there as well, such as the websites “Ted.com” and “TopDocumentaries”, both of which are diverse, good quality and educational.  My wife watches them all the time, and I occasionally sneak a peak. While we may not all benefit from what some of our neighbours are doing behind closed doors, a good open channel where affordable access to information and educational stuff is always a good thing.

Furthermore, education, information and bandwidth are all ‘public goods’, things that are socially desirable, hard to price, and really stupid and expensive to exclude people from. You see, there are a million and one different things that people can do online, and while someone else’s thing might not be yours, in the round you’ve got a special interest, too, that puts all of us in this together . . . the amorphous public. There’s no need to make sure the person beside you ain’t getting something you’re not.

Public goods are hard to price and this is patently obvious with respect to bandwidth.  It is also patently obvious in the way that the big carriers are trying to price their service. If we follow their prices, a ‘regular priced bit’ of bandwidth costs anywhere from $2/GB (Telus) to $16/GB (Bell) for ‘lite’ services, and between 20 cents/GB (Telus) to $1.17/GB . Surcharges for so-called “overage” cost anywhere from .50 to $5/GB, depending on your plan and your provider. Almost everywhere else in the world, there is no such ‘excess usage’ charge at all.

The basic point is that there is no relationship between the cost of supply and the price charged. Estimates regarding the ‘cost of production per bit’ range from 1 cent/GB to 10 cents/GB, which means that so-called excess usage chargesare 50 to 500 times greater than their costs of production.  That is a sure sign that prices are arbitrary and a reflection of market power rather than underlying economic considerations. They are also a sign that the dominant players are trying to colonize the public good qualities of information, or the Internet, for themselves. In any case, none of this is ‘normal economics’.

More than this, though, we must leave the plane of economic analysis and enter another bigger one more appropriate to really getting at the issues now in front of us. Communication is about more than markets and commodities.

Unlike a can of soup, bandwidth is not used up but rather allocated amongst users temporarily before being put right back in the big pool of bandwidth on tap.  Communication and media goods are also not commodities in general, because in open and democratic societies we swaddle them with the values of freedom of expression, citizen’s rights, good government, and fostering the kind of culture that we want to live it. These are indivisible things, and even if I don’t exercise my right to free speech, tell a story, read the newspaper, etc. I sure am happy that you exercise your rights and hope to hell that the press is on the ball.  We’re in big trouble if these conditions don’t hold, because they are the lifeblood of democracy.

In a real democracy, the more participation the merrier, but democracy does not rise or fall on each and everyone of us being homo politicus maximus — it is sufficient that there are enough among us who take an active role to keep the culture of democracy alive and its political machinery in check.  This is why communication, speech and association are cornerstones of democracy and enshrined in Constitutions, including ours in Canada (also see Article XIX of the 1948 Universal Declaration of Human Rights for an even more expansive view of communication and speech rights). When bandwidth providers’, that is the big cable and telecom players, interests collide with the people’s interests in this regard, it is the former that must yield, not us.

Finally, in all of this, the market-based fixation of making each user pay according to what they use ignores the fact that communication goods are shared goods. That is, their value increases the more that we share them with one another. Try telling a joke to someone who doesn’t understand your language, or hanging about the water-cooler to talk about the Super Bowl or last night’s Grammy Awards, or for that matter, riffing on how about how awesome Arcade Fire is, if nobody else has watched or heard any of these things. It’s like the sound of one hand clapping.  That, in other words, is what the pay-per model and the fixation on ‘relying on market forces to the maximum extent possible’ imposes on Internet-based communication.

That maybe the Government, CRTC and ‘Big Players’ model of an open Internet fit for an open society, but it ain’t mine. If its your’s, please give it a rethink in light of some of the points raised above.