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Ordinary Thursday Anything But For Canadian Internet

By Michael Geist

My weekly technology law column (Toronto Star version, homepage version) notes that last Thursday began as an ordinary, rainy, spring day in Ottawa.  Canadian politicians, having just avoided an unwanted election, were only two days away from an extended summer break.  Yet by the end of the day, a trio of events unfolded that could help shape the Internet in Canada for years to come.

The first event took place mid-morning, with the introduction of new lawful access legislation.  The bills would dramatically change the Internet in Canada, requiring Internet service providers to install new surveillance capabilities, force them to disclose subscriber information such as name, address, and email address without a court order, as well as grant police broad new powers to obtain Internet transmission data.


The introduction of the legislation by Justice Minister Rob Nicholson and Public Safety Minister Peter Van Loan - accompanied by more than a dozen law enforcement representatives - generated an immediate wave of criticism.  ISPs expressed concern about the cost of the program, while privacy groups lamented the government's about-face on the issue of court oversight since Stockwell Day, the previous Public Safety Minister, had pledged not to introduce mandated disclosure of subscriber information without it.

Given the experience with misuse of surveillance powers in other countries, the bill will likely continue to attract attention as Canadians ask whether the government has struck the right balance between providing law enforcement with the necessary investigative powers, ensuring robust oversight, and preserving online privacy.

Hours later, the scene shifted to Question Period, where Liberal Industry critic Marc Garneau surprised Internet watchers by emphasizing the importance of an open Internet and declaring that the Liberal party now firmly supports net neutrality.  The party has adopted a position opposing the management of Internet traffic that infringes privacy and targets specific websites, users, and legitimate business applications.

The move represents an unexpected shift in policy direction just weeks before the Canadian Radio-television and Telecommunications Commission is scheduled to conduct hearings on network management practices.  For months, the NDP has stood virtually alone among the major Canadian political parties in its support for net neutrality.  With the Liberals now onside, the door is open for a bi-partisan effort this fall to enshrine net neutrality principles into law.

Immediately after Question Period, the Standing Committee on Industry held its final hearing before the break on the Electronic Commerce Protection Act, Canada's new anti-spam bill.  Some business groups have sought to water down the legislative proposal, implausibly arguing that Canadian privacy law is sufficient to address persistent spamming activities and that the ECPA's tough penalties could dissuade talented business leaders from taking on corporate directorship positions for fear of potential liability.

Representatives from the Office of the Privacy Commissioner of Canada, the Competition Bureau, and CRTC Chair Konrad von Finckenstein firmly put those fears to rest.  Assistant Privacy Commissioner Elizabeth Denham rejected the view that current privacy laws are up to the task of countering Canadian spam and welcoming the clarity of the anti-spam bill.  Von Finckenstein was similarly supportive of the ECPA, expressing optimism about its potential to address longstanding spam concerns and doubt about whether the prospect of penalties would create a disincentive for would-be corporate directors.

These issues - lawful access, net neutrality, and the ECPA - will be back on the parliamentary agenda in the fall.  But on a single rainy day in Ottawa, all three moved to the fore with big implications for the future of the Internet in Canada.

Full post as published by Michael Geist on June 22, 2009 (boomark / email).