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Canadian Internet service provider censors union's web site

Canadian Internet service provider censors union's web site
Canadian Internet service provider censors union's web site





-------- Original Message --------
Subject: 	Canadian ISP Censors Union Website
Date: 	Mon, 1 Aug 2005 09:39:54 -0400
From: 	Michael Geist  
To: 	declan@well.com 



Declan,

Telus, Canada's second largest telco provider, recently blocked
subscriber access to a site supportive of its union.  The NY Times has
additional coverage today at
http://www.nytimes.com/2005/08/01/business/worldbusiness/01telus.html 

I also cover the story in my weekly column (posted below).  I argue that
Telus violated the basic ISP rule that providers transport bits of data
without discrimination, preference, or regard for content.

The company argued that its subscriber contract granted it the right to
block content.  While that may be true for its roughly one million
retail subscribers, the blockage occurred at the Internet backbone
level, thereby blocking access for other ISPs (and their customers) that
use Telus as their provider. For example, Prince Rupert, a small city on
the northwest coast of British Columbia, has established a community ISP
to provide its citizens with municipally supported Internet access.
Since their connectivity is provided by Telus, last week the entire
community found itself unable to access the website in question.

Further, while the legal issues associated with the incident are
somewhat murky, the website blockage was stunningly bad policy that may
ultimately come back to haunt the entire Canadian ISP industry. Earlier
this year the federal government launched its Telecommunications Policy
Review, a comprehensive review of all aspects of the Canadian
telecommunications regulatory framework, including the provision and
availability of Internet services.
The Telus blockage, combined with ever growing concerns about ISPs that
engage in packet preferencing or discrimination against competitive
Internet telephony services, as well as doubts about the effectiveness
of ISP action against spam, and fears about ISP protection of customer
private data in light of potential new law enforcement surveillance
requirements, may lead to increasing calls for a new national ISP
accountability framework.

Toronto Star version at
 
Freely available hyperlinked version at
 

MG

*Michael Geist*
*August 1, 2005*
*
*
*TELUS BREAKS NET PROVIDERS' CARDINAL RULE

*Internet service providers always seem to get the first call when a
problem arises on the Internet.  Lawmakers want them to assist with
investigations into cybercrime, parents want them to filter out harmful
content, consumers want them to stop spam, and copyright holders want
them to curtail infringement.  Despite the urge to hold ISPs accountable
for such activities, the ISP community has been remarkably successful in
maintaining a position of neutrality, the digital successor (in spirit
and often in fact) to the common carrier phone company.

Adopting a neutral approach has always required strict adherence to one
cardinal rule:* that ISPs transport bits of data without discrimination,
preference, or regard for content*.

That rule has served ISPs very well in Canada.  When the federal
government amended the/ Canadian Human Rights Act/ to remove lingering
uncertainty about its application to hate on the Internet, ISPs were
exempted from liability.  Similarly, when Ottawa established rules to
address the removal of online child pornography, it consciously avoided
placing ISPs in the role of judge and jury by requiring them to take
down offending content only after receipt of a court order.

Most recently, Bill C-60, Canada's proposed copyright reform, envisions
the creation of a "notice and notice" system for allegedly infringing
copyright material online.  That system mirrors the child pornography
approach by leaving it to the courts to determine when content should be
taken offline.

In fact, Canadian courts have also respected the ISPs' role as
intermediaries, setting a high threshold for revealing subscriber
personal information in the file sharing lawsuits and upholding their
neutrality in last summer's Tariff 22 decision, a Supreme Court of
Canada case involving online music streaming.

Given the importance of the neutrality principle, it came as a shock to
learn last week that Telus, Canada's second largest telecommunications
company, was actively blocking access to Voices for Change, a website
supporting the Telecommunications Workers Union.  Telus has been
embroiled in a contentious labour dispute with the union, yet its
decision to unilaterally block subscriber access to the site was
unprecedented.

The company argued that the site contained confidential proprietary
information and that photographs on the site raised privacy and security
issues for certain of its employees.  Nevertheless, the blockage of the
site was completely ineffective since it remained available to anyone
outside the Telus network.  Moreover, those within the Telus network
could access the site with a bit of creative Internet surfing.

The appropriate approach for Telus would have been the same formula it
advises law enforcement and copyright holders to follow -- to obtain a
court order to get the site removed.  In fact, that was precisely what
Telus ultimately did as late last week it obtained a court order barring
the site from posting content with the intent of threatening company
employees.

By first unilaterally blocking the site, Telus raised a host of
challenging legal issues.  The company argued that its subscriber
contract granted it the right to block content.  While that may be true
for its roughly one million retail subscribers, the blockage occurred at
the Internet backbone level, thereby blocking access for other ISPs (and
their customers) that use Telus as their provider.

For example, Prince Rupert, a small city on the northwest coast of
British Columbia, has established a community ISP to provide its
citizens with municipally supported Internet access.  Since their
connectivity is provided by Telus, last week the entire community found
itself unable to access the Voices for Change website.

Canadian law also raises some interesting questions.  While not directly
applicable to a private sector company, the/ Charter of Rights and
Freedoms/ guarantees Canadians "freedom of thought, belief, opinion and
expression."  The Supreme Court of Canada has ruled that those rights
extend to both the speaker as well as the listener.  Telus may not be
subject to the Charter, but surely all Canadian corporations should
aspire to abide by its principles.

The Canadian/ Telecommunications Act/ may also be relevant to this
situation, though the Canadian Radio-television and Telecommunications
Commission's 1999 New Media decision to take a hand-off approach to the
Internet may diminish its applicability.

Section 27(2) forbids unjust discrimination in the provision of a
telecommunication service.  This section is primarily applicable to
competing services, though the blocked website may well fit within the
definition.

Moreover, Section 36 of the Act provides that a  "Canadian carrier shall
not control the content or influence the meaning or purpose of
telecommunications carried by it for the public."  The CRTC has sought
to limit the applicability of this provision to retail end-user Internet
services, yet it is clear that the Telus action extended well beyond its
own retail customers.

Irrespective of the legal situation, the website blockage was stunningly
bad policy that may ultimately come back to haunt the entire Canadian
ISP industry. Earlier this year the federal government launched its
Telecommunications Policy Review, a comprehensive review of all aspects
of the Canadian telecommunications regulatory framework, including the
provision and availability of Internet services.

The Telus blockage, combined with ever growing concerns about ISPs that
engage in packet preferencing or discrimination against competitive
Internet telephony services, as well as doubts about the effectiveness
of ISP action against spam, and fears about ISP protection of customer
private data in light of potential new law enforcement surveillance
requirements, may lead to increasing calls for a new national ISP
accountability framework.  The Policy Review is accepting comments until
the middle of this month, leaving ample time for those affected by the
blockage to contribute to the process.

Canadian ISPs have been supported for many years by a self-regulatory
environment premised on network neutrality and non-discrimination of the
traffic on their systems.  In light of last week's events, they may soon
find the federal government stepping in to back this principle with the
force of law.


-- 

**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa, Faculty of Law
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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