regulation of internet commerceclass ten - january 18, 2008

professor michael geistuniversity of ottawa, faculty of law

special guest appearance by:

Veena RawatCommunications Research Centre Canada

Exam details

• Friday, January 25 - 8:30 - 4:30 take home• Exam available from Common Law

Secretariat or course site• Exam can be submitted in paper form to the

Common Law Secretariat or online• Online submission - via Yahoo Mail• Sample exams online

what responsibility?• No liability or responsibility for content or

activities.• An obligation to act only under a court order.• An obligation to act if made aware of illegal or

defamatory content.• An obligation to actively monitor content or

activities for illegal or defamatory content.• An obligation to control content.• An obligation to control content with personal

liability attached to the obligation.

the liability balance

• absolute immunity vs. absolute liability• costs• incentives

• if not isps, then who?

Lawful access• New surveillance capabilities as ISPs

upgrade• Exceptions for some ISPs based on size or

organization (original proposal)• Subscriber information disclosure - no

warrant required (CNA consultation)• Data retention/preservation• Potential for abuse?

Net Neutrality• Definitions• Why does this issue matter?• U.S. experience• Canadian experience• Political environment• Future Issues• Looking Ahead

Definitions

Save the Internet Coalition“Network Neutrality — or "Net Neutrality" for short — isthe guiding principle that preserves the free and openInternet. Put simply, Net Neutrality means nodiscrimination. Net Neutrality prevents Internetproviders from speeding up or slowing down Webcontent based on its source, ownership or destination.”

Definitions

Telecom Policy Review Panel"The Telecommunications Act should be amended to confirm the right ofCanadian consumers to access publicly available Internet applicationsand content of their choice by means of all public telecommunicationsnetworks providing access to the Internet. This amendment should

(a) authorize the CRTC to administer and enforce these consumer access rights,(b) take into account any reasonable technical constraints and efficiency considerations

related to providing such access, and(c) be subject to legal constraints on such access, such as those established in criminal,

copyright and broadcasting laws."

DefinitionsAT&T/BellSouth Merger

“AT&T/BellSouth also commits that it will maintain aneutral network and neutral routing in its wirelinebroadband Internet access service. This commitment shallbe satisfied by AT&T/BellSouth's agreement not toprovide or to sell to Internet content, application, orservice providers, including those affiliated withAT&T/BellSouth, any service that privileges, degradesor prioritizes any packet transmitted overAT&T/BellSouth's wirelines broadband Internet accessservice based on its source, ownership or destination.”

Definitions• Discrimination - treating equivalent content or applications

in a different manner (often due to economicconsiderations)

• Transparency - consumer awareness about the service theyare buying, what content may be altered

• Protection against limited competition in the market -potential for abuse due to limited consumer choice

• Maintaining a level playing field

Why Does This Issue Matter?• Importance of the Internet

– Communications– Commerce– Culture

• emergence of new players and new voices (Googles, eBays, bloggers, video)• Limited competition in Canada in broadband services

– 63% of market held by four ISPs– 96% of market held by incumbent telcos and cablecos

• Canadian perspective– Consolidation in the media market– Consolidation in the communications market– Deregulation of media and communications

• Implications of Internet discrimination

U.S. Experience• Actual cases - Madison River (VoIP), Verizon (text messages), Comcast (traffic

shaping)• Corporate Rhetoric - Verizon, BellSouth

“How do you think they're going to get to customers? Through a broadband pipe.Cable companies have them. We have them. Now what they would like to do is usemy pipes free, but I ain't going to let them do that because we have spent thiscapital and we have to have a return on it. So there's going to have to be somemechanism for these people who use these pipes to pay for the portion they're using.Why should they be allowed to use my pipes?”

- Ed Whitacre, SBC• Regulatory Interest

– FTC - AT&T/BellSouth merger– FCC - Comcast

• Legislative Interest– Congressional and state bills

• Competing Lobbies– Save the Internet vs. Hands Off the Internet

Canadian Experience• Actual cases -

– Telus (Voices for Change)– Shaw (VoIP surcharge)– Rogers (traffic shaping)– Bell, Videotron (support for new fees)

• Corporate Rhetoric - Videotron“If the movie studio were to mail a DVD . . . they would expect to pay postage orcourier fees. Why should they not expect a transmission tariff?”

- Robert Depatie, Videotron• Regulatory Interest

– Telecom Reform Panel Report• Legislative Interest

– Very limited - some House of Commons QP discussion, committee discussion• Competing Lobbies

– More limited - some early discussion including Hill Times piece– Neutrality.ca

Canadian Experience

• eBay Canada/Leger Marketing survey - September 2007– 34 per cent of Canadians are familiar with the term net neutrality,

67 per cent agree with the principle once it is explained– 76% of Canadians (including 70% of Conservative supporters, 79%

Liberal and 86% NDP) believe the federal government should passa law to confirm the right of Internet consumers to access publiclyavailable Internet applications and content of their choice.

– 77% of Canadians agree that net neutrality policies protect therights of Internet consumers.

Political Environment• Minister of Industry• Industry Canada

– Telecom Policy Branch– E-commerce Policy Branch

• Opposition MPs• CRTC• Telco lobby• Net Neutrality “lobby”