Appeared in the Toronto Star on March 3, 2008 as Canada Stuck in Slow Lane on 'Traffic Shaping'

Last fall, the Associated Press and the Electronic Frontier Foundation reported that Comcast, the largest cable provider in the United States, was actively interfering with network traffic by engaging in traffic shaping.  The practice – largely undisclosed by the company – resulted in reduced bandwidth for peer-to-peer file sharing applications and delayed the delivery of some Internet content.

The revelations sparked an immediate outcry from the public and U.S. officials.  Class action lawyers filed lawsuits, members of Congress introduced legislation mandating greater transparency and neutral treatment of Internet content and applications, state law enforcement officials issued subpoenas demanding that Comcast turn over information on its network management practices, and the Federal Communications Commission, the national telecommunications regulator, launched hearings into the matter.

Last week, the FCC devoted a full day to the issue as companies such as Vuze – an online video provider that uses peer-to-peer technology – along with public interest groups argued that the Commission needed to use its regulatory muscle to ensure greater transparency in the broadband market and to preserve an open, non-discriminatory Internet.

While the FCC established ten principles for network operators to ensure network neutrality in 2005, there is mounting pressure in the U.S. for it to do more.  Given that many believe that the Comcast’s practices violated the FCC principles, regulatory and legislative responses to the lack of transparency in ISP network management may be on the way.  

Moreover, the issue has seeped into the U.S. Presidential race.  Democratic front-runner Barack Obama has committed to introducing net neutrality legislation during his first year in office and a recently introduced bill on network neutrality is garnering growing support in the U.S. Congress.

The strong legislative response stems in part from concerns that traffic shaping provides an unfair advantage to network providers, who may prioritize their own video content at the expense of the competition. Further, the practices may harm artists and film makers who use the Internet to circulate their work as well as open source software developers who depend on the Internet to distribute their programs in a cost-effective manner.

While the U.S. appears to be rapidly moving toward legislative and regulatory action, Canadian regulators appear stuck in the slow lane.  Indeed, Canadian Internet service providers have engaged in much the same conduct that has placed Comcast on the defensive, yet they have not faced any similar legal or regulatory repercussions.

For example, a Rogers' executive told an industry meeting last fall that the company traffic shapes by limiting the percentage of bandwidth available for peer-to-peer file sharing.  Notwithstanding that acknowledgement, the company continues to shroud its practices in secrecy. Its website does not fully disclose its traffic shaping practices and company spokespeople have provided inconsistent explanations for what is happening behind the scenes.

The Canadian experience has even extended beyond questionable network management practices.  In 2005, telecommunications giant Telus blocked access to hundreds of websites for several days without a court order or judicial authorization.

In sharp contrast to the U.S., however, there has been near-complete inaction from Canadian regulators and politicians.  The Canadian Radio-television and Telecommunications Commission and its chair Konrad von Finckenstein could seize responsibility for this issue.  The Competition Bureau's Fair Business Practices Branch could investigate the lack of transparency with Canadian ISP services.  Industry Minister Jim Prentice could pursue net neutrality legislation or encourage the Industry Committee to conduct hearings on the issue.

Yet to date, with the notable exceptions of the 2006 Telecommunications Policy Review Panel Report (which recommended the insertion of a net neutrality provision into law) and last week's Canadian Heritage Committee Report on the CBC (which called on the CRTC to consider the issue), net neutrality concerns have been met with indifference or utter silence.

Although U.S. leaders have long embraced a hands-off regulatory approach to the Internet, they have now proclaimed themselves "willing and able" to intercede in cases of abusive, non-transparent network management.  Canadians might well ask why their leaders are seemingly unwilling to do the same.

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.