Response to

Broadcasting Public Notice CRTC 1998-82 Telecom Public Notice CRTC 98-20 "New Media - Call for Comments"

1.

Electronic Frontier Canada (EFC) is Canada's premier online civil liberties organization, devoted to the preservation of fundamental rights and freedoms as new computing, communication, and information technologies are introduced into Canadian society. EFC's activities are national in scope.

2.

EFC is a federally incorporated non-profit organization and was founded in January 1994 by Professor David Jones (currently of McMaster University) and Professor Jeffrey Shallit (University of Waterloo). Its current Board of Directors also includes Professor Richard Rosenberg (University of British Columbia). All board members hold Ph.D.'s in computer science or related fields.

3.

EFC's several hundred supporting members are drawn from a diversity of backgrounds, professions, ages, and from all Canadian provinces and territories.

4.

EFC wishes to appear at the oral public hearing on November 23 1998 in Hull, Quebec. Our organization offers a unique perspective on Internet regulation, and there is no other Canadian organization with a mandate like ours, which has a particular focus on protecting freedom of expression on the Internet. EFC specifically wishes to give an oral presentation because our greater experience making such presentations. Also, because of our expertise, the commission may wish to have some questions addressed in person. Members of EFC's board have previously been invited speakers and participants at the Ontario Library Association annual meeting, the Canadian Library Association annual meeting, the CHRF conference on the Internet and Human Rights, the GILC conference Public Voice in the Development of Internet Policy, and have made numerous appearances on CBC television and radio. EFC has consulted with Industry Canada to help develop a government policy on privacy and encryption for Electronic Commerce. EFC helped organize a symposium entitled "Free Speech and Privacy in the Information Age" at the University of Waterloo in November, 1994.

5.

The following points summarize our position. The argument is expanded in points below.

a.

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". Consequently there is a heavy burden on the State to show why regulating the Internet and controlling content is "demonstrably justified in a free and democratic society".

b.

Communication over packet-switch networks, such as the Internet, does not fall under the traditional understanding of the term "broadcasting". Since it is not broadcasting, content should not be regulated by the CRTC under the Broadcasting Act.

c.

Even if it such communication is erroneously considered to be broadcasting, content should not be regulated by the CRTC because the primary rationales for broadcast regulation do not apply.

d.

Content regulation is likely to be harmful to the growth of the Internet and its potential for aiding the Canadian economy.

e.

Content regulation is likely to impose unreasonable hardship on service providers and content providers.

f.

Regulation is likely to homogenize content, making the Internet carry content fit only for children.

g.

The CRTC may have a role to play in ensuring competition among service providers and ensuring universal service.

6.

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".
      The Internet is an extraordinary medium of communication, widely accessible at low cost. As US Judge Stewart Dalzell stated in overturning provisions of the Communications Decency Act, "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." [12]
      Closer to home, the late Canadian Supreme Court Justice John Sopinka remarked in a speech at the University of Waterloo in 1994 that

... the burden on the government will be onerous to show why any action that violates free speech should not be struck down by the courts.
... In many ways, it may be said that electronic media such as Internet are the posters of the late twentieth century providing an invaluable means of expression to a wide audience...
... 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 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 the use of Internet [13].

7.

Definition of broadcasting. The Oxford English Dictionary lists several definitions of broadcasting, one being "disseminated by means of radio or television". Communication via packet-switch networks clearly does not fit under this definition.
      The Broadcasting Act [1], which gives the CRTC its authority to regulate broadcasting, applies to "programs", but states explicitly that

"program" means sounds or visual images, or a combination of sounds and visual images, that are intended to inform, enlighten or entertain, but does not include visual images, whether or not combined with sounds, that consist predominantly of alphanumeric text;

By far the vast majority of traffic on the Internet consists of alphanumeric text, and hence does not fall under the terms of the Broadcasting Act.
      Issuance of an exemption from the Broadcasting Act for new media delivered through the Internet would be useful to clarify particular instances for which the classification as "non-broadcasting" is less clear, e.g., digital audio data delivered through the Internet.

8.

Rationales for regulation. Traditional rationales for regulation of broadcast media have included scarcity, pervasiveness, and preservation of "national cultural sovereignty".
      For example, in a 1978 US Supreme Court case, the Court wrote

Because of problems of interference between broadcast signals, a finite number of frequencies can be used productively; this number is far exceeded by the number of persons wishing to broadcast to the public. In light of this physical scarcity, Government allocation and regulation of broadcast frequencies are essential... [2]

However, this argument is specious in several respects. First, all economic goods are scarce, so this fact alone does not suffice to justify regulation. Newspaper presses are expensive, but this has not justified federal regulation of newspapers. Second, the scarcity of the broadcast spectrum is highly overrated. In addition to cable, consumers have access to a wide spectrum of broadcasting substitutes, such as satellite dishes, VCR's, and compact disc systems. As the technology improves, we can expect that it will be possible for thousands more stations to broadcast without interference. Third, statistics show that in fact there are currently many more broadcasting outlets than newspapers. Fourth, less capital is required to start a new radio or television station than to start a daily newspaper [3].
      Another rationale for regulation is pervasiveness. The media of radio and television are said by some to be so uniquely pervasive that steps must be taken to ensure that the general public, especially children, are "protected" from offensive or pornographic broadcasts [7]. This argument is also specious, as commentators have noted [8]. For one thing, those that find particular broadcasts to be offensive can always turn off the receiver or change the channel. In the absence of government intrusion, a large demand for "protection" from offensive content would result in simple free market solutions, such as receivers that can be restricted to certain stations who have agreed to provide inoffensive content.
      A final rationale for regulation is to enforce supposedly desirable national goals of Canadian content. However, Canadian content regulation was designed to apply to traditional broadcasting, a medium to which the government controls access. Furthermore, Canadian content regulation is essentially paternalistic and elitist, for it presumes that the average Canadian is incapable of choosing Canadian content when it is in their interest to do so.

9.

Traditional rationales for broadcast regulation do not apply to the Internet.
      Communication via the Internet is not a scarce resource -- more precisely, it is far less scarce than resources of traditional media. Anyone with access to a computer ($1000 or less) and an Internet connection ($20/month) can get online, set up a web page, post to a newsgroup, or join an IRC chat. Many Canadian cities have Freenets, which provide Internet access for even less. Without a computer, one can still access the Internet from public libraries for free, or cybercafes for a minimal price (typically $6/hr.)
      Communication via the Internet does not follow the "few to many" model of traditional broadcasting, in which the vast majority of us are passive viewers. Internet communication is "many to many", with any Canadian who chooses able to be a producer and distributor of their own message, to as large an audience as they wish to engage.
      Communication via the Internet is typically not pervasive. Unlike radio or television, images do not come unbidden to one's computer when it is turned on. Instead, one has to take active steps, such as click on a hypertext link in a web browser, or specifically request the contents of a Usenet newsgroup. For individuals concerned about inappropriate content, filtering software is available, from Canadian companies such as NetNanny. Canadians already have the tools they need to make appropriate choices about Internet content for their own families.
      It would also be inappropriate to attempt to apply Canadian content regulations to the Internet. First, the model of content delivery is quite different. On the Internet, consumers are free to choose in a way that is simply not available to them through traditional media. Secondly, even if such regulation were applicable, it could not be effective. The Internet is truly a global medium. The vast majority of content accessible to Canadians originates from outside Canada. Any attempt to impose Canadian content regulations on content which largely originates beyond our borders is nonsensical and impossible.
      There are millions of Canadian households connected to the Internet, participating in this global communication medium, 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 content is available on the Internet is through promotion of Canadian cultural industries involved in new media, financially or otherwise, much the way the National Film Board provides support for the Canadian film industry. However, such support should come from an independent agency, not the CRTC.

10.

There is no need for the CRTC to impose content regulation with respect to obscenity, hate propaganda, defamation, and copyright infringement, since these issues already fall under the Criminal Code of Canada and other Canadian laws. Indeed, Canadian police and the justice system have already demonstrated their effectiveness in enforcing these laws and obtaining convictions in various court cases. Currently, the CRTC also regulates broadcasting to enforce restrictions against portrayal of gender stereotypes, alcohol consumption by minors, and violence on children's television. EFC believes that any regulation of content on the Internet, beyond that already imposed by the Criminal Code, would be unconstitutional as discussed above.

11.

Content regulation is likely to prove harmful to the Canadian economy. "Telecoms, computers, and broadcasting ... account for about 6% of the Canadian gross domestic product" [9].
      Currently, one of the great advantages of the Internet over other media of communication is its cost. Unlike a radio station or daily newspaper, an organization can get out its message to the world for just a few hundred dollars. Content restrictions or other forms of regulation would put Canadian organizations at a severe disadvantage, and would likely result in content providers moving to the United States or other countries.
      Furthermore, the Internet has grown from a small number of interconnected computers to millions of sites spanning the globe in 15 years largely because of the absence of any unreasonable governmental intrusion. Given this, there is clearly no pressing need for governmental intrusion into what is essentially a free-market-driven enterprise. One may legitimately ask, who is demanding Internet regulation, anyway?
      Finally, it is important to recognize that digital data is very mobile. If Canada creates an unreasonable regulatory environment for Internet content providers and companies engaged in electronic commerce, then they will simply move offshore, taking jobs and economic prosperity with them. As an illustration of just how easy it is, EFC has already created its own mirror site in Australia (offshore.efc.ca) which is just as accessible to our Canadian audience. In fact, it takes some technical know-how to even verify that the web site is indeed in Australia.

12.

CRTC regulation of broadcast media has, contrary to CRTC claims, minimized diversity and homogenized content.
      Although the CRTC claims "we don't censor programs" [4], this is false. For example, in 1994 the CRTC ruled that CKDU, the radio station of Dalhouse University, could only broadcast poems and plays dealing with sexual themes after 9 PM [5,6]. The rationale used for such regulation is Section 3(1)(g) of the Broadcasting Act [1], which states that "the programming originated by broadcasting undertakings should be of high standard". This unconstitutionally vague provision has historically been used to suppress sexually explicit speech. In a CRTC-regulated Internet, then, one can expect Canadian sites to contain content fit only for children -- while sites outside Canada are effectively beyond Canadian regulation.
      By withholding licence approval and other tactics, the CRTC forces programmers to censor themselves. The result is that Canadian broadcasting does not adequately reflect the cultural, political, economic, social, lifestyle, or regional diversity of Canadians. For example, there is hardly any broadcast political commentary available from far-right or far-left sources.
      Through its Canadian content regulations, the CRTC acts to minimize diversity. For example, cable subscribers in Ontario are unable to receive American public television station 23 from Buffalo, largely because of CRTC regulations.
      Through its simultaneous substitution rules, the CRTC also prevents Canadians from watching American commercials, should they choose to do so. The financial rationale provided for simultaneous substitution is startling in its frankness: it "repatriates over $100 million a year in advertising revenue" [11]. Clearly, freedom of expression is taking a back seat to financial considerations. It is also important to note, that some forms of simultaneous substitution of advertisements may in fact be illegal if applied to the Internet [16].

13.

Content regulation is likely to impose hardship on service providers and content providers. Unlike radio and television broadcasters, which at most present a few dozen programs each day, service providers provide access to literally millions of web pages, Usenet postings, and other content, most of which is beyond their control. From a technical viewpoint, it would be extremely difficult, if not impossible, to enforce the kinds of restrictions the CRTC currently enforces against sexually explicit matter in broadcasting.

14.

In order to encourage a wide diversity of opinion and a broad spectrum of commentary, new legislation should be enacted that would exempt service providers from being liable for providing access to content not directly under their control. Content providers, of course, would still be responsible for content they directly create [15].

15.

Currently, the Internet benefits from lack of central control, and a structure that is idea-driven. Such organization, or perhaps lack of organization, means that the development of new techniques is encouraged and innovations can be rapidly tested and brought to fruition. Central regulation, such as that potentially imposed by the CRTC, would have a serious detrimental effect on the evolution of the Internet.

16.

In addition to broadcasting, the CRTC is also responsible for telecommunications. If there is any role for the CRTC to play with respect to the Internet, EFC believes it may exist in regulating existing telecommunications in such a way as to facilitate the growth and success of the Internet in Canada -- in particular to achieve the goal of universal service.
      First, although the Internet is new and unique form of communication, it is to a large extent built on top of more fundamental communication technologies, such as the public switched telephone network, cable networks, fibre optic data networks, satellite communications, and so on. Large, powerful, well-established corporations already involved in telecommunications and broadcasting are able to exercise control over these underlying communication media. If the CRTC is not careful about setting terms and fees for for these underlying services, there could arise an anti-competitive climate that would stifle the growth and diversity of Internet service providers available to Canadians. There have already been a few isolated skirmishes between, for instance, the Stentor companies and various smaller Internet service providers. The CRTC can and should continue to play a role in regulating the large telecommunications providers to ensure fair and equitable access by Internet service providers and by individual content providers.
      Second, even though the barriers to entry in many kinds of Internet services are remarkably low, they are still significant enough to act as a deterrent for many organizations such as schools and public libraries. Since it is very much in the public interest for these kinds of organizations to become connected to the Internet, the CRTC can and should facilitate the development of, and public access to, Internet services by developing an appropriate telecommunications tariff structure that reduces the financial barriers to entry for these types of organizations.
      In our view, however, this narrow form of telecoms-inspired regulation cannot be used as an excuse to regulate content. For example, Section 5 of the Bell Canada Act states that the company "shall neither control the contents nor influence the meaning or purpose of the message emitted, transmitted, or received" [10].

Notes

[1]

Broadcasting Act, http://www.crtc.gc.ca/ENG/LEGAL/BROAD_E.HTM

[2]

FCC v. National Citizens Committee for Broadcasting, 436 U. S. 775 (1978).

[3]

This argument is based on Jonathan Emord, _Freedom, Technology, and the First Amendment_, Pacific Research Institute, 1991.

[4]

"This is the CRTC", document available at http://www.crtc.gc.ca/ENG/BACKGRND/sowhaten.htm

[5]

"Dalhousie radio station censored by CRTC", University of Toronto Varsity, October 31 1994, p. 1.

[6]

Decision CRTC 94-106, Ottawa, 24 March 1994, CKDU-FM Society, Halifax, Nova Scotia - 931277800.

[7]

FCC v. Pacifica Foundation, 438 U.S. at 748 (1978).

[8]

Lucas A. Powe, Jr., _American Broadcasting and the First Amendment_, University of California Press, 1987.

[9]

Dwayne Winseck, "Canadian telecommunications: a history and political economy of media reconvergence", Canadian Journal of Communications 22 (1997), 217-260.

[10]

"An Act respecting the Bell Telephone Company of Canada" (Chapter 48), In Acts of the Parliament of Canada, 27th Parliament, Second Session, 1967, p. 5.

[11]

"TV program rights: The beginnings", I-way Broadcastfax, Canadian Association of Broadcasters, 1997.

[12]

ACLU et al. v. Reno, US District Court decision, June 12, 1996. Available at http://www.eff.org/pub/Legal/Cases/EFF_ACLU_v_DoJ/960612_aclu_v_reno.decision

[13]

John Sopinka, "Freedom of speech and privacy in the information age", The Information Society 13 (1997), 171-184. Electronic text available at gopher://insight.mcmaster.ca:70/0R0-51356-/org/efc/doc/sfsp/sopinka.txt

[14]

Radiocommunication Regulations, Radiocommunication Act, SOR/96-484, November 5, 1996. Text available at http://canada.justice.gc.ca/ftp/en/regs/chap/r/r-2/sor96-484.txt

[15]

For example, this provision (not overturned and still in force) of the US Communications Decency Act, which exempts service providers from responsibility for illegal content: "No person shall be held to have violated subsection (a) or (d) solely for providing access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing such access or connection that does not include the creation of the content of the communication." Title V of the Telecommunications Act of 1996, Pub. L. No. 104-104, 502, 110 Stat. 56, 133-35.

[16]

Opinion of Lord Hamilton in the case of The Shetland Times Ltd. v. Dr. Jonathan Wills and Zetnews Ltd., Court of Session, Edinburgh, 24 October 1996. Also see Guy Clapperton, "Game of the name...a roulette of rights", The Guardian, November 28, 1996.