What if the Internet was Just Like Cable? A Look at Net Neutrality Policy in Canada

Jessica Riehm

The idea that governments have a role to play in enforcing net neutrality principles and internet regulation has gained traction in recent years. Canada currently lacks a government body that regulates Internet Service Provider (ISP) delivery of data information services. This means that providers like Rogers and Bell Canada have been able to engage in somewhat nefarious consumer practices – such as, for example, attempting to create tiered internet service and to restrict broadband access.

In order to preserve net neutrality, the federal government needs to consider developing policy on ISP regulation. Such a policy must address whether it will create a federal regulator of ISPs specific to data information or expand the jurisdiction of a current body – specifically, the Canadian Radio-Television & Telecommunications Commission (CRTC).

Today, access to broadband internet is generally understood to be basic infrastructure or a “public good”. Equal access to it has allowed start-up companies to mobilize into social media giants, among various other innovations. In Canada, service providers are currently prohibited from manipulating access to or use of the internet by charging different prices based on tiered or limited access plans. However, ISPs look to gain this control over their networks in order to profit from having data speeding up, slowing down, or blocking Internet traffic based on its source, ownership, or destination.

Such actions threaten the very essence of the internet as a public good by preferring some data and users over others – thus threatening the principles of net neutrality.

This type of network manipulation has occurred in recent memory – such as, for example, during the Telecommunications Workers Union’s (TWU) strike of 2005, where Telus cut public access to the TWU website due to pictures of employees crossing union picket lines. The Telus case clearly demonstrates that ISPs have a technical capacity to impact the content on their networks.

In Canada, the CRTC regulates telecommunications and broadcasting media under the authority of the Telecommunications Act and Broadcasting Act; however, the CRTC’s ability to regulate ISPs is questionable. Although a substantial degree of deference in CRTC decision-making has been acknowledge (due to the high level of expertise required), such deference is not unlimited. Yet the Supreme Court of Canada has determined that the CRTC has the ability to create policy instruments to carry out legislated objectives — such as equitable access to services.

Canada’s net neutrality policy does not occur in a vacuum. The very nature of the internet — the fact that it connects with international networks — requires consideration of other jurisdictions. South of the border, the United States Federal Communications Commission (FCC) does not regulate ISPs as it considers broadband internet an “information service” outside the scope of regulation. President Obama has recently urged the FCC to reclassify broadband internet as a public utility and affix it under Title II of the Communications Act.

More drastic changes have occurred outside of North America. In Brazil, the Senate recently passed an “internet bill of rights” containing three policy objectives: ensuring net neutrality by legislating that ISPs treat all information traffic equally; protecting user privacy by making it illegal for ISPs to collect user data; and protecting freedom of expression by mandating a court order be required to remove conspicuous content from the web. The legislation extends to all internet services used by Brazilian citizens, even if the service provider is based outside of the country — and any firm found to be in conflict with Brazilian legislation is subject to fines up to as much as 10 per cent of revenues.

And Brazil is not alone. Various other jurisdictions effectively promote some level of government intervention to ensure net neutrality — if not for consumer protection, for the innovations made possible by the internet in recent years. Yet despite political movements and significant debate internationally, net neutrality has failed to become a politically salient issue in Canada, where legal challenges have been waged with only limited success.

The question remains of what policy and level of government should be pursued in Canada, if at all, in regards to net neutrality?

Arguably the best step forward for Canada’s federal government today would be an amendment to the Telecommunications Act. The amendment would have to explicitly acknowledge data information as a type of telecommunication within the regulative authority of the CRTC, and permit the body to regulate ISPs. To enforce net neutrality principles, it would have to include provisions regarding user rights to a minimal level of service quality (accounting for technical and legal constraints).

Importantly, any legislative change would have to be designed to prohibit ISPs from discriminating against content, applications, or services on broadband internet based on their source or ownership. Here, the CRTC could apply its current regulatory framework in adjudicating over ISPs.

Policy changes in which net neutrality principles have been legislated have occurred in the EU and Brazil to a similar end. The CRTC already serves as a regulatory body for other types of telecommunication technology. It has the expertise required to take on this new role. CRTC regulation would also be client-centered, allowing ISPs to develop alternative charging mechanisms for users. Of course, questions regarding how Canada’s net neutrality policy would impact non-Canadian ISPs and users must be considered. One avenue of resolution could be to include net neutrality clauses in any future international agreements to maintain certain principles, such as forbidding content interference.

For the internet to remain the public good that modern society has come to take for granted, government intervention will be required. The CRTC has the capacity and expertise to act as sheriff in the Wild West that is internet regulation. Canadian governments need to take action and protect public access to, and use of broadband internet while it still can.

Jessica Riehm is 2016 Master’s of Public Policy Candidate at the University of Toronto’s School of Public Policy and Governance. She has previously worked as a policy consultant on international and Ontario programs including preventive blindness and compliance of providers with the Canada Health Act.  Jessica has a background in employment and medical malpractice law. Her particular policy interests include justice and health care policy.

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