What Do You Want the Internet To Be?

[David Farber <dave () farber net>]

------ Forwarded Message
From: Michael Geist <mgeist () pobox com>
Date: Mon, 07 Mar 2005 06:35:03 -0500
To: <dave () farber net>
Subject: What Do You Want the Internet To Be?

Dave,

Of possible interest to IP -- My weekly Law Bytes column, posted below,
highlights several potential Canadian policies that may create a very
different Internet. They include ubiquitous network surveillance through the
lawful access initiative, ISPs that engage in packet preferencing as in the
two cases last week involving Vonage and Telkom Kenya, a new "extended
license" that would require schools to pay millions of dollars for content
that is currently freely available on the Internet, and rules that make it
far easier to remove an allegedly infringing song than to remove dangerous
child pornography. It concludes by riffing on an old Nortel ad campaign by
asking whether this is really what we want the Internet to be?

The Toronto Star version of the column, titled "Say No To Big Brother Plan
for Internet" is online at http://geistwhatinternet.notlong.com.

I've also posted a freely available, hyperlinked version at
http://www.michaelgeist.ca/resc/html_bkup/mar72005.html

MG

WHAT DO YOU WANT THE INTERNET TO BE?

During the Internet boom of the late 1990s, Nortel Networks ran an
advertising campaign that featured as its slogan, "what do you want the
Internet to be?".  The implications were obvious - the Internet was a
technology of unlimited possibility that could be whatever we wanted it to
be.

More than five years later, Nortel's vision is becoming reality. The
Internet has become so essential to the every day lives of millions of
people - a pillar of communication, information, entertainment, education,
and commerce - that at times it seems as if the Internet really is anything
we want it to be.

Notwithstanding the Internet's remarkable potential, there are dark clouds
on the horizon.  There are some who see a very differing Internet.  Theirs
is an Internet with ubiquitous surveillance featuring real-time capabilities
to monitor online activities. It is an Internet that views third party
applications such as Vonage's Voice-over-IP service as parasitic.  It is an
Internet in which virtually all content should come at a price, even when
that content has been made freely available.  It is an Internet that would
seek to cut off subscriber access based on mere allegations of wrongdoing,
without due process or oversight from a judge or jury.

This disturbing vision of the Internet is not fantasy.  It is based on real
policy proposals being considered by the Canadian government today.

Leading the way is the federal government's "lawful access" initiative.
While the term lawful access sounds innocuous, the program, which dates back
to 2002, represents law enforcement's desire to re-make Canada's networks to
allow for lawful interception of private communications.

If lawful access becomes reality, Canada's telecommunications service
providers (TSPs) will be required to refit their networks to allow for
real-time interception of communications, to have the capability of
simultaneously intercepting multiple transmissions, and to provide detailed
subscriber information to law enforcement authorities without a court order
within 72 hours.

Moreover, Canada's TSPs will be subject to inspections and required to
provide the government with reports on the technical capabilities of their
networks.  All of these activities will be shrouded in secrecy with TSPs
facing fines of up to $500,000 or sentences of up to five years in jail for
failing to keep the data collection confidential.

All of these changes come at an enormous cost - both financially (hundreds
of millions of dollars in new technology) and to our personal privacy.
While some changes may be needed for security purposes, the government has
yet to make the case for why the current set of powers, which include
cybercrime and wiretapping provisions, are insufficient.  Moreover, there
has been no evidence provided that this approach is the least privacy
invasive alternative.

Refitting the network is not limited to government initiatives. In recent
weeks it has become apparent that the network providers themselves may seek
to interfere with the free flow of data.  For example, Vonage (the leading
independent Voice-over-IP provider) recently filed a complaint with the
Federal Communications Commission in the U.S. alleging that an unnamed
Internet service provider was blocking its service.  Last week, the ISP
agreed to stop and to pay a fine to the FCC.

In a less publicized incident, the Communications Commission of Kenya last
week ordered the state-owned Telkom Kenya to restore service to Sema VoIP,
another Voice-over-IP provider which is backed by Canadian-based BMT North
America. The Commission warned Telkom Kenya against taking similar action in
the future.

The issue raised by these cases is not new.  Observers have long feared that
ISPs would succumb to economic self-interest, engaging in "packet
preferencing" by blocking or slowing data coming from competing sites or
services.  While ISPs are quick to argue that they want merely to serve as
intermediaries without regard for what traverses their networks, as they
offer competing Internet phone services, music download services, and other
value-added content, there will be a clear temptation to create a home
network advantage.

In fact, at the CRTC hearings into VoIP last fall, the parent company of at
least one major ISP gave every indication that it did not view third party
services favourably.  Quebecor, which owns Videotron, told the Commission
that services such as Vonage contributed nothing to the development of
facilities-based competition and that "the service provider's VoIP-based
service is totally parasitic on the local access facilities of other
carriers."

As the leading Canadian ISPs roll out their own VoIP services, many may look
at competing services in the same way and seek to limit the use of their
network.  Stopping such interference requires a strong CRTC, yet with
Industry Minister David Emerson's planned review of Canada's
telecommunications law, some industry experts fear that Canada is heading in
the opposite direction.

The Minister of Industry, together with Liza Frulla, his Canadian Heritage
counterpart, are also reportedly about to finalize new rules that may
reshape the availability of Internet content to educational institutions.
Acting on the recommendation of a parliamentary committee that was chaired
by Toronto MP Sarmite Bulte, the government may soon unveil a new "extended
license" that would require schools to pay millions of dollars for content
that is currently freely available on the Internet.

While the committee recommendation excluded payment for content that is
publicly available, it adopted the narrowest possible definition of publicly
available, limiting it to only those works that are not technologically or
password protected and which contain an explicit notice that the material
can be used without prior payment or permission.

Moreover, those same ministers are also contemplating a new system that
would allow content owners to file a complaint with an ISP if one of their
subscribers has allegedly posted infringing content. Canada's rules for
child pornography still require a court order before content is removed, yet
if the Canadian Recording Industry Association and other well-funded
interests gets their way, the ISP will respond to a mere allegation of
copyright infringement by "kicking the subscriber off the system."
With Canada conceivably ready to adopt rules that make it far easier to
remove an allegedly infringing song than to remove dangerous child
pornography from a new fee-based, surveillance-ready, packet preferenced
Internet, it is difficult to overstate how out of touch our Internet policy
process has become.  Is this really what we want our Internet to be?

-- 
**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Law School, Common Law Section
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124
mgeist () pobox com              http://www.michaelgeist.ca


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