As the concern over U.S. net neutrality rules heats up, last week I appeared before the House of Commons Standing Committee on Access to Information, Privacy and Ethics to provide committee members with an hour-long briefing on the issue. The audio of the appearance can be found here. My opening remarks, which emphasized the Canadian net neutrality framework, the potential impact of U.S. policies, and the implications for privacy and freedom of expression, are posted in full below.

Appearance before the House of Commons Standing Committee on Access to Information, Privacy & Ethics, December 6, 2017

Good afternoon. My name is Michael Geist.  I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law, and I am a member of the Centre for Law, Technology, and Society. My areas of speciality include digital policy, intellectual property, and privacy. I have appeared many times before this committee and as always, I appear in a personal capacity representing only my own views.

I am grateful to the committee for its commitment to privacy and access to information and its interest in how the issue of net neutrality may affect these issues. I propose to begin this briefing with an introduction to net neutrality, some comments on recent events, and then considerations of the intersection between net neutrality, privacy, and access.

Canada seemed lost when it came to Internet policy a little over a decade ago. The government showed scant interest in the technicalities of Internet services and the CRTC stood idly by as leading Internet providers limited speeds of some applications (a practice known as traffic shaping) and mused openly about new fees for the right to transmit content to subscribers.

Those early Internet policies are unrecognizable today as Canada has emerged as a world leader in supporting net neutrality. At its heart, net neutrality means that all content and applications should be treated equally and that choices made by Internet users should be free from ISP or telecom interference. The policies do not guarantee Internet success – no law does – but signals a clear commitment to placing consumers and creators in the Internet driver’s seat.

The foundation of Canadian policy lies in four CRTC decisions that address practices such as managing Internet traffic to limit speeds for some applications or creating pricing plans that “zero rate” certain content that does not count as part of monthly data consumption caps. CRTC policies now restrict these practices, recognizing that net neutrality preserves the “common carrier” approach for ISPs and encourages marketplace competition and innovation based on price, speed, and quality of networks.

The CRTC approach allows for Canadians to file complaints about net neutrality violations, which they have done on occasion. The CRTC proceeds to investigate and, in some instances, conduct hearings into the broader implications raised by the concern. The policies also provide for greater transparency on network management practices, requiring ISPs to disclose how they manage their networks and what their practices mean for consumer Internet use.

In recent weeks, Canadian leaders and regulators have made their support for net neutrality clear. For example, Navdeep Bains, the Innovation, Science and Economic Development Minister responded to the U.S. developments that I’ll discuss momentarily by affirming that “Canada will continue to stand for diversity and freedom of expression. Our government remains committed to the principles of net neutrality.”

Canadian Heritage Melanie Joly has similarly emerged as a notable proponent of net neutrality. Some cultural groups have called on the government to abandon net neutrality by mandating preferential treatment of Canadian content. These recommendations have come as recently as last week as part of the CRTC’s consultation on the future of broadcast. Yet Joly has affirmed that the principle remains at the core of Canadian cultural policy, noting “we will continue to champion the Internet as a progressive force and an open space without barriers. As a government, we stand by the principle of net neutrality.”

The Canadian commitment to net neutrality has been similarly endorsed at the regulatory level. New CRTC chair Ian Scott told an industry conference last month that “as companies continue to innovate in their offerings to Canadians, the CRTC will continue to ensure that Canada’s Internet neutrality provisions are respected…the owners and operators of the country’s communications may not discriminate against content based on its origin or destination.”

As you know, the FCC, the U.S. telecommunications regulator, plans to rollback net neutrality regulations. This has sparked an immediate backlash from the Internet community who fear that the decision will turn the Internet in the U.S. into a cable-like service dominated by the carriers and deep-pocketed giants that can afford to pay new fees to keep their content on the fast lane. The U.S. order, which would also block states from implementing their own versions of net neutrality policies, is set for a vote next week.

Canadian consumers may be shielded from net neutrality abuses in their home Internet use, but the effects of the U.S. decision may still be felt here. Since Canadian Internet traffic often transits through the U.S., there are concerns that Canadian data could get caught by non-neutral policies. Moreover, Canadian Internet services hoping to attract U.S. customers may face demands for payments to have their content delivered on the fast track.

Since the NAFTA renegotiations include a chapter on digital trade, Canadian negotiators should be pushing for the inclusion of a strong, enforceable net neutrality provision. In fact, earlier this week, lead Canadian negotiator Steve Verheul told a Commons committee that Canada wants a net neutrality provision included in the digital trade chapter in NAFTA. That would be a good step, particularly if the provision has real teeth.

It should be noted that there is a direct and important connection between net neutrality and privacy.  Canada has long recognized the dangers that would come from active monitoring of telecom and Internet users. Neutrality – whether in our telephone networks or Internet networks –  always included a link to privacy. For example, one of the early net neutrality concerns involved Internet telephony, which offers the prospect of cheaper, secure, encrypted communications. Yet providers saw the service as a competitor, leading to reports of blockages or degrading speeds to render the services less usable. This was true in the U.S. in the Madison River case and true in Canada under some of the early net neutrality complaints. Strong net neutrality rules help ensure that does not happen.

Similarly, the first CRTC net neutrality decision (called Internet traffic management practices) included considerable discussion on carrier practices involving deep packet inspection, which allowed them to examine the type of content running on their networks. The technology raised significant privacy concerns and the CRTC ultimately issued an order that “all primary ISPs, as a condition of providing retail Internet services, not to use for other purposes, personal information collected for the purposes of traffic management and not to disclose such information.”  In other words, the net neutrality rules established additional privacy safeguards resulting from carrier management of their networks.

Net neutrality also has a strong connection to access to information.  Reports this week that Bell plans to ask the CRTC to create a website blocking agency, which would develop block lists without court review, highlights how carriers may interfere with access to content. In a recent submission to the CRTC, Bell links the need for blocking of unauthorized streaming sites and downloading services with the success of its CraveTV service, arguing that blocking access to those sites would result in hundreds of thousands of new subscribers. That claim is debatable, but the incentives to block content in carrier self-interest, particularly for large, vertically-integrated companies, is very real.

Indeed, one of Canada’s first net neutrality cases involved Telus, which infamously blocked access during a labour dispute to a site called for Voices for Change. Telus maintains that it has not repeated the blocking approach, but the fact that it did so – and believed that it could exercise the power to do so – demonstrates why there is need for clear, legislative safeguards against content blocking.

Yesterday, David Lametti, the Parliamentary Secretary for the Minister of Innovation, Science and Economic Development, told the House of Commons that “net neutrality is the critical issue of our times, much like freedom of the press and freedom of expression that came before it.”

Given the critical role played by the Internet in all walks of life and the exceptional power wielded by carriers, Mr. Lametti is right.

I look forward to your questions.