The CRTC’s deadline for submissions on the Bell coalition website blocking plan closed last week, with more than 10,000 people and organizations filing directly with the CRTC. The interventions including a warning from the U.N. Special Rapporteur for Freedom of Expression that the blocking plan “raises serious inconsistencies” with Canada’s human rights obligations, fears from ISPs that the plan will increase Internet costs for consumers, expert analysis on the technical risks of site blocking, and detailed reviews of the many problems with the plan.

My submission has not yet been posted online, but is available in full here. The submission is divided into five parts:

• Part one identifies why the Coalition Proposal is a disproportionate response to piracy concerns
• Part two discusses why the Coalition Proposal is inconsistent with international standards, particularly given the absence of court orders
• Part three examines why the Coalition Proposal is likely to lead to significant harms including over-blocking
• Part four assesses why the Coalition Proposal is inconsistent with Commission’s policy priorities such as affordable Internet access, privacy, and net neutrality
• Part five highlights why the Coalition Proposal is inconsistent with the Commission’s Policy Direction and the Telecommunications Act policy objectives

The executive summary of my submission is posted below. The full submission can be accessed here.

Executive Summary

The Coalition Proposal is a Disproportionate Response to Piracy Concerns

1.    The Coalition argues that piracy in Canada is a growing threat, relying on data from MUSO to suggest that current activities “makes it difficult if not impossible to build the successful business models that will meet the evolving demands of Canadians, support Canadian content production, and contribute to the Canadian economy.” This submission argues that website blocking represents a significant reform with major costs and implications for freedom of expression, net neutrality, affordable and competitive consumer Internet access, and the balanced enforcement of intellectual property rights. Without a compelling case that piracy in Canada is particularly severe – and evidence that the proposed solution will have a major impact on piracy rates – the risks and costs associated with the Coalition Proposal will outweigh any perceived benefits.

2.    The MUSO report shows that Canadian piracy rates actually declined during the study period. Moreover, there are very questionable assumptions that call into question the validity of the data and highlight why the definition of “piracy sites” is subject to considerable manipulation.

3.    The Coalition Proposal must not only make the case that there is a significant Canadian piracy problem, but also that piracy is having an enormous impact on the business and creative sectors. Yet the Canadian data on the digital economy and Canadian creative sector show a thriving industry.

4.    According to the latest data from the Canadian Media Producers Association, the total value of the Canadian film and television sector exceeded $8 billion last year, over a billion more than has been recorded in any year over the past decade. In fact, last year everything increased: Canadian television, Canadian feature film, foreign location and service production, and broadcaster in-house production.

5.    The Canadian data on digital business models also points to a steady stream of success stories that refute claims that it is difficult if not impossible to create successful business models in Canada.  Online video services, which the Coalition suggests are harmed by streaming sites, are experiencing rapidly expanding revenues, now generating more than $1 billion per year. In fact, two Canadian online video services – CraveTV and Club illico – are estimated to have earned $373 million last year, up from just $13 million four years earlier.

6.    Canada has some of the world’s toughest anti-piracy legal provisions, which Coalition members have actively used in recent years. The Coalition is effectively arguing that it needs more laws or legal tools to target non-Canadian sites that may be accessed by Canadians. However, Canadian law already provides for injunctive relief in appropriate circumstances with the Supreme Court of Canada’s Equustek decision one of the more recent manifestations of courts issuing orders to non-parties in support of intellectual property rights.

7.    The Coalition argues that blocking “regimes have been widely adopted internationally because they have been proven to work.” The submission cites data from several countries including the UK, Portugal, and South Korea. However, a closer look at the data reveals that website blocking is far less effective than its proponents claim. Even if the piracy claims were taken at face value, studies from around the world indicate only limited impact from site blocking in the longer term.

The Coalition Proposal Is Inconsistent with Global Standards

8.    The Coalition has tried to downplay the absence of a court order from its proposal by suggesting that many countries have site blocking rules and that relying on alternate systems is commonplace. Its application states that at least 20 countries have site blocking, some with courts (the UK) and some without (Portugal). An examination of website blocking around the world reveals the inference that non-court ordered blocking is commonly used is inaccurate.

9.    Research shows that of the 22 countries that have site blocked for copyright purposes, 20 use or have used court orders (the exceptions are Portugal (which is voluntary) and Italy (which permits both)). Of course, there are many notable countries, including the United States, Japan, Switzerland, Mexico (whose Supreme Court ruled blocking is disproportional) and New Zealand, that have no record of site blocking for copyright purposes at all.

10.    As currently framed, the Coalition Proposal may also violate human rights norms. Website blocking or other measures to limit access to the Internet raises obvious freedom of expression concerns that has sparked commentary from many international governmental organizations.

11.    International human rights rules and declarations leave the Coalition Proposal vulnerable to challenge in at least two respects. First, the absence of court orders remains a fatal flaw, placing Canada at odds with the majority of countries that have adopted any form of copyright-related website blocking. Second, the proportionality of the measures relative to harm also leaves it subject to challenge.

The Coalition Proposal is Likely to Lead to Significant Harms

12.    The Coalition Proposal downplays concerns about over-blocking that often accompanies site blocking regimes by arguing that it will be limited to “websites and services that are blatantly, overwhelmingly, or structurally engaged in piracy.” Yet the blocking activity is likely to expand beyond a narrow scope in at least three ways: over-blocking of legitimate sites, expanded coverage of “piracy” sites and services, and the inclusion of content beyond intellectual property issues.

13.    The danger of over-blocking legitimate websites raises serious freedom of expression concerns, particularly since experience suggests that over-blocking is a likely outcome of blocking systems.

14.    A fulsome review reveals that blocking orders frequently lead to over-blocking, potentially affecting tens of thousands or even hundreds of thousands of legitimate websites. Given the hundreds of ISPs in Canada with varying technical capabilities, mandated website blocking as proposed by the Coalition would likely lead to over-blocking of legitimate sites.

15.    The expansion of the definition of piracy sites is also likely to occur. Once the list of piracy sites is addressed, it is very likely that the Coalition will turn its attention to other sites and services such as virtual private networks (VPNs). The use of VPNs, which enhance privacy but also allow users to access out-of-market content, has been sore spot for the companies for many years. VPN services are already targeted by IP lobby groups such as the International Intellectual Property Alliance and can be expected to face demands for blocking. Beyond VPNs, it would not be surprising to find legitimate services streaming unlicensed content as the next target.

16.    If the Commission were to create a system for mandated website blocking of intellectual property issues, there is simply no doubt that it would quickly face requests for far more. For example, the first request for mandated website blocking involved a request in 2006 from Richard Warman to block two foreign-based hate sites. The Commission refused to issue the order, noting that it did not think it had the legislative power under Section 36 to issue blocking orders. With the floodgates opened, hate speech sites would quickly give way to online gambling and other regulated activities as blocking targets.

The Coalition Proposal Is Inconsistent with Commission Policy Priorities

17.    A mandated blocking system applied to all ISPs in Canada would have an uneven impact: larger ISPs will face new costs but may find it easier to integrate into existing systems, whereas hundreds of smaller ISPs would face significant new costs that would affect their marketplace competitiveness. In fact, larger ISPs might ultimately benefit from higher fees passed along to subscribers and reduced competition. By harming the competitiveness of many smaller providers, the Coalition Proposal may jeopardize efforts to extend affordable Internet access to all Canadians.

18.    Estimating the costs of the site blocking plan is made more difficult by the lack of detail in the Coalition Proposal. However, the experience elsewhere suggests that it could run into the millions of dollars. Larger ISPs in the UK disclosed their approximate costs in a 2014 case. For example, Sky Broadband spent over 100,000 pounds (costs described as “six figures”) to develop a website blocking system solely for IP right infringing website injunctions in 2011 and spent thousands more each month on monitoring costs. British Telecom spent over a million pounds on a DNS web-blocking system in 2012 and required more than two months of employee time on implementation. EE spent more than a million pounds on its website blocking system and over 100,000 pounds every month for operations.

19.    The Coalition cites privacy protection as a reason to support its plan, noting the privacy risks that can arise from unauthorized streaming sites. There are obviously far better ways of protecting user privacy from risks on the Internet than blocking access to sites that might create those risks, however. Rather than enhancing privacy protection, the Coalition Proposal puts it at greater risk, with the possibility of VPN blocking, incentives to monitor customer traffic similar to the now-controversial practices arising from the case involving Facebook and Cambridge Analytica, and the potential adoption of invasive site blocking technologies.

20.    Given that the starting principle for net neutrality is the right for users to access content and applications of their choice, blocking content is prima facie a net neutrality violation.

21.    The Coalition argues that net neutrality is limited to “lawful content” and that its plan therefore falls outside the rules. In its application, however, it does not cite the Canadian rules since Canada’s net neutrality framework was never explicitly limited in application to content that is “lawful.”

The Coalition Proposal is Inconsistent with the Policy Direction and the Telecommunications Act

22.    Despite years of insistence by Coalition members that the Commission follow the CRTC policy direction, the Coalition has now proposed regulatory intervention that could not be more inconsistent with that direction.

23.    With courts around the world concluding that site blocking is a disproportionate remedy, evidence that it is likely to lead to over-blocking, and risks that it violates net neutrality and privacy rights, the Coalition Proposal fails to meet the policy direction’s requirement of “efficient and proportionate” regulation.

24.    The Commission has made it clear that it will only permit blocking in “exceptional circumstances” and only where doing so would further the objectives found in the Telecommunications Act. The Coalition Proposal must therefore do more than simply raise concerns with respect to copyright law or cultural policies found in the Broadcasting Act objectives. Rather, it must convince the Commission that website blocking would further the telecommunications policy objectives.

25.    The Coalition Proposal cites three objectives in support: that piracy “threatens the social and economic fabric of Canada” (subsection a), that the telecommunications system should “encourage compliance with Canadian laws” (subsection h), and that website blocking “will significantly contribute toward the protection of the privacy of Canadian Internet users” (subsection i).

26.    The Coalition Proposal is exceptionally weak on all counts. There is no compelling evidence that piracy on telecommunications networks is threatening the social and economic fabric of Canada. Indeed, claims that Canada is a piracy haven are not supported by the data. The argument on encouraging compliance with the law is even weaker as the Commission has already stated that compliance with other legal or juridical requirements does not justify site blocking.

27.    Not only does the Coalition Proposal fail to make the case that it furthers the Telecommunications Act objectives, but there is a far better argument that it undermines them. For example, Subsection (a) references the “orderly development throughout Canada” of the telecommunications system. The creation of a blocking system applied to hundreds of ISPs and wireless carriers of all sizes across the country would undermine that goal as it would likely lead to the implementation of differing blocking technologies, inconsistent over-blocking of legitimate content, and a non-neutral Internet in Canada.

28.    The regulatory framework for telecommunications – whether in the Act’s objectives, the government’s policy direction, or in the Supreme Court’s clear separation of broadcasting and telecom – all point to policy priorities premised on efficiency, affordability, and competitiveness. To engage in content regulation on the Internet is incompatible with those priorities and would turn the Commission into an Internet content regulatory authority, opening the door to licensing or regulating Internet streaming services, traffic that runs through ISP networks, and web-based content wherever it may be located.

29.    Supporters of the Coalition Proposal downplay these concerns, arguing that it is a narrowly tailored approach to address piracy. This submission identifies why the blocking system is likely to lead to over-blocking and expanded scope of coverage for both IP and non-IP issues. But even more fundamentally, implementing blocking under Coalition Proposal without a court order under the auspices of the CRTC turns the Commission (and by extension the government) into a regulator of Internet content in direct contradiction to the telecommunications legislative framework and the Commission’s stated approach to online content.