[IP] more on Telus Blocks Access to Union Website
Begin forwarded message:
From: Michael Geist <mgeist@xxxxxxxxx>
Date: August 1, 2005 9:39:51 AM EDT
To: dave@xxxxxxxxxx
Subject: more on Telus Blocks Access to Union Website
Dave,
Just over a week ago you reported on the decision by Telus, Canada's
second largest telco provider, to block 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
<http://geisttelusblock.notlong.com>
Freely available hyperlinked version at
<http://www.michaelgeist.ca/index.php?option=content&task=view&id=919>
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@xxxxxxxxx http://www.michaelgeist.ca
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