Thursday, November 26, 1998

EFC
Electronic Frontier Canada (EFC)
20 Richmond Avenue
Kitchener, Ontario N2G 1Y9
email: efc@efc.ca,   web: http://www.efc.ca/

 
Speaking notes for EFC's oral presenation at

CRTC Public Hearing on "New Media"


Electronic Frontier Canada was founded in January 1994 and is this country's premier online civil liberties organization. We're a non-profit organization supported by several hundred members drawn from all provinces and territories, and from a diversity of ages, backgrounds, and professions. Our principal aim is to protect fundamental rights and freedoms as new computing, communication, and information technologies are introduced into Canadian society.

Our web site is at www.efc.ca

My name is David Jones, and I am currently president of EFC. I'm also a computer science professor at McMaster University where I teach in McMaster's Theme School on Science, Technology, and Public Policy.


It seems irrelevant to worry about what kinds of technologies are captured under the arbitrary term "new media", which after all carries no particularly special meaning in relation to the CRTC's regulatory authority.

The real question is:

Should the CRTC regulate the Internet?
More specific questions might be:
Should the CRTC regulate content on the Net?
Should the CRTC license Internet service providers?
Should new taxes be levied on Internet users or service providers?
Our answer to all of these is 'NO'.

- - -

I like to begin with a somewhat tongue-in-cheek Top Ten list.

Top Ten changes Canadians would notice if the CRTC were to begin regulating the Internet.

10)
Within minutes, Canadians start transferring their web pages to unregulated offshore computers. (Electronic Frontier Canada's web site moves to Australia -- "offshore.efc.ca")

9)
Web sites with adult content are disabled until after 9pm when the kids are in bed. To avoid chaos and confusion, all of Canada will have to adopt a single time zone.

8)
Canadian Internet guru, Jim Carroll, publishes a new book entitled, "How to send encrypted audio and video over the Net", subtitled, "What the CRTC doesn't know, can't hurt you." It's a best seller.

7)
The CRTC subsidizes new media technology companies to develop software that automatically filters web page content and converts to Canadian spellings for words like colour, neighbour, and honour.

6)
Through a policy of government-approved censorship known as "simultaneous substitution", Internet service providers are forced to replace all banner ads on American web sites with by Canadian ads as the data crosses the border. CNN Time/Warner takes the government to court.

5)
The CRTC determines 90% of all personal home pages in Canada are "not of sufficiently high quality", and gives 60 days notice either to comply with "generally accepted audience standards", or else be shut down.

4)
Microsoft's Internet Explorer is given exclusive control of the web brower market in Canada, in exchange for a default home page populated with links to Canadian pop culture icons, such as Celine Dion, Bryan Adams, Sarah McLachlan, and Wayne Gretzky.

3)
Heritage Minister, Sheila Copps, creates 20 million web pages, each displaying a Canadian flag. No one visits them.

2)
The RCMP are unable to cope with a million Canadians watching unregulated "WebTV" on their pirate satellite dishes.

And the number one change Canadians would notice if the CRTC were to begin regulating the Internet?

1)
It is illegal to have a web page that says, "Fuck the CRTC".


More seriously, we do not believe that a CRTC-regulated Internet would be desirable or even constitutional. We take note, in particular, that it has been in the absence of heavy-handed government regulation and control, that the Internet has flourished.

The development of "killer applications", like electronic mail and hyperlinked web pages, has attracted a growing proportion of the population to participate in a "never-ending worldwide conversation" in the virtual community known as cyberspace.

With traditional media, such as newspaper, radio, or television, Canadians must rely largely upon intermediaries to tell their stories, to convey their opinions, to tell them what their fellow Canadians are thinking and doing in distant parts of the country, and we have very little recourse if these intermediaries do a poor job of it. These are media from the few to the many. The economic barriers to entry in traditional media are often enormous.

But on the Internet, everyone can be a publisher.

And even though the telephone allows direct one-to-one conversation over great distances, the Internet offers one-to-many and many-to-many communication to an unprecedented degree.

In the U.S. court judgement overturning unconstitutional provisions of the Communications Decency Act, Judge Stewart Dalzell wrote,

"the Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not ... interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion."
Electronic Frontier Canada's primary concern at these hearings is protecting freedom of expression on the Internet from undue government interference.

As the late Supreme Court Justice John Sopinka said, in a speech given at the University of Waterloo in 1994:

"We must be very careful not to unduly restrict free speech simply because it is difficult to control the illegal use of information technologies. Systems such as [the] Internet can enhance an individual's ability to promote truth, political and social participation, and self-fulfilment. Since these goals lie at the core of free speech, one might expect that it would be very difficult for the government to legitimately pass any regulations prohibiting [or limiting] the use of Internet."
The Charter of Rights and Freedoms guarantees Canadians "freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication".

Before the CRTC can begin to meddle with content on the Internet, it must satisfy a heavy burden of proof to show that such an intrusion is justified. This proof must include several elements. It must be demonstrated that

And yet, in its initial public notice, the CRTC suggests that some degree of regulation would be appropriate for certain kinds of controversial content.

We think it is important to recognize that there is no need, and indeed we think no authority, for the CRTC to enforce content restrictions with respect to:

since these issues already fall under the Criminal Code and other laws. The CRTC is not authorized to make determinations, for instance, about whether or not something is legally "obscene", and the CRTC is ill-equipped to investigate and prosecute criminal offences. In contrast, Canadian law enforcement agencies and the justice system have already demonstrated their effectiveness at enforcing these laws and obtaining convictions in court.

In its initial public notice, the CRTC seems to suggest that some of the restrictions it has traditionally imposed on broadcasting should be applied to Internet content, such as:

As an illustration, in a television beer commercial, CRTC regulations dictate that a 23 year old actor who simply "looks young" cannot appear; you can't actually depict someone consuming beer; and you can't even make swallowing sounds off camera!

Perhaps in a passive broadcast medium such as television Canadians tolerate such paternalistic restrictions on what the government will allow us to see, but when it comes to the Internet, we don't think such limitations would survive a constitutional challenge, (... in much the same way that the American CDA's prohibition against "indecent" Internet content was struck down.)

Although the CRTC claims it enhances diversity and doesn't censor programs, the record shows differently. In 1994, the CRTC ruled that the Dalhousie University radio station, CKDU, could only broadcast lesbian poetry after 9 pm. By the CRTC threatening to withhold licence approval, programmers are compelled to censor content until the CRTC is satisfied. As a consequence, CKDU has been prohibited from airing its "All Day, All Gay" special programming to celebrate gay pride. The rationale used was Section 3(1)(g) of the Broadcasting Act, which simply states that "programming originated by broadcasting undertakings should be of high standard". In the case of CKDU, the commission ruled that frank and realistic depictions of gay sexuality "do not meet the high standard required by the Act" and offend "generally accepted audience values".

We find these terms unreasonably vague, and we think that this kind of restriction would certainly be unacceptable if applied to the Internet.


In addition to concerns about restricting content, we are also concerned about content being imposed upon us. On the radio airwaves, it is feasible to impose prescribed amounts of Canadian content upon listeners. The required content displaces other programming because of the linear nature of radio programs and the limited broadcast spectrum. But on the Internet, there is an essentially unlimited capacity, and because of its interactive, non-linear, asynchronous nature, people will always be able to access the content that interests them, rather than the content the government wishes them to see.

There are already millions of Canadian households connected to the Internet, each able to produce and distribute their own story and their own point of view --- this is truly Canadian content on a grand scale. In our view, the proper way to facilitate and ensure high quality Canadian content is available on the Internet is through the promotion of universal access and the promotion of Canadian cultural industries involved in new media. We don't, however think this should be funded through taxes on Internet users or service providers, and we think it should come from an independent agency, not the CRTC.


In preparation for today's hearing, I took some time to re-read the transcript of an online interview given by the CRTC's David Colville, vice-chairman, telecommunications. I must say that I was somewhat dismayed when he highlighted "tax policy, research and development, and man-power training" as areas the CRTC wishes to investigate. Does the CRTC plan to grow into an entire governing body? Where are Revenue Canada, Industry Canada, and the provincial man-power and education departments in all of this discussion?


In the time remaining, I would like to touch briefly on some of the other points we tried to make in our written submission.

On a somewhat more constructive note, I would offer two observations.

First, the United States is already two steps ahead of Canada in exempting Internet Service providers from liability for illegal content (including copyright infringement) distributed over the Internet by their customers. The absence of such legal protection has saddled the Canadian industry with a great deal of uncertainty and places it at a significant competitive disadvantage. Parliament should act to level the playing field.

Second, we do believe that the CRTC may continue to play a useful role in ensuring competition and fair business practices among providers of basic telecommunication services and in facilitating universal access.

Thank-you for the opportunity to speak to you today.


EFC