Appeared in the Toronto Star on August 1, 2005 as Telus Breaks ISPs’ Cardinal Rule
Appeared in the Ottawa Citizen on August 4, 2005 as 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.   

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.