As a kid, I always got hand-me-downs from my older cousins: hand-me down clothes, hand-me-down toys and hand-me-down games. I guess it was OK, except that the clothes were usually out of style, the toys weren't the latest on TV, and the games usually came without the rules.
So I altered the hand-me-downs. Clothes got cut, toys were dismantled and remantled and, as for the games, I made up my own rules. After all, I could write them in my favor.
That's what Canadian Internet service providers (ISPs) are doing. Since there's nothing currently legislating whether or not they are liable for content on the Internet, ISPs have decided to make up their own rules - in their favor.
The Canadian Association of Internet Providers (CAIP), which represents 46 ISPs, has established a "voluntary" code of conduct about how members will deal with illegal activity on their servers. Basically, they want the public and government regulators to know that they're the good guys on the Internet crime front.
They're making the rules before someone else does.
Most ISPs offer access to newsgroups, chat groups, email, and space for people to publish material on the world wide web. That means ISPs could be held responsible under telecommunications, broadcasting, and publishing laws. Or are these just hand-me-down laws?
Situations that call ISPs' responsibility for content into question are multiplying. On Nov. 8, the webmaster at Ottawa-based Information Gateway Services (IGS) started receiving email from clients which informed him of a web page that contained the following text: "Lucien Bouchard is the closest thing to Hitler that Canada has ever known. The death of this man will be the salvation of all true patriots of Canada."
After contacting the RCMP and a lawyer, IGS blocked access to the site. The ISP's lawyer advised that the second phrase contravened Canadian hate literature laws.
Internet civil libertarians aren't convinced that IGS did the right thing. "This policy of censor first, ask questions later isn't the right strategy", says David Jones, president of Electronic Frontier Canada. "This notion that ISPs should take responsibility for the content published by their customers - information over which they have little or no effective control - is one of the weaknesses of the CAIP Code of Conduct. [It] stresses a complaint-driven process and cooperation with government and police, without any clear statement on the importance of freedom of expression and tolerance for a diversity of viewpoints."
Hate literature and defamation are illegal, but should ISPs be taking matters into their own hands? Section six of their new code says: "Although Internet providers are unable to monitor all content, CAIP members will make a reasonable effort to investigate legitimate complaints about alleged illegal content or network abuse, and will take appropriate action."
At the same time, the code says ISPs will respect their clients' privacy. But that's a contradiction in policies. What if authorities, acting on complaints, decide they want to start intercepting email? What will CAIP members do then?
CAIP president Ken Fockler admits it's confusing. "As I understand it", he said, "telephone companies are not responsible for content when people are talking dirty on the telephone or planning to overthrow government. But some ISPs are moving to create services like helping clients put content on the web. If you've somehow helped put up child porn on your server, who's liable?"
With as many as 45,000 web pages hosted on some CAIP-member sites, it would be impossible for an ISP to monitor all the content, and they know it. So the new code of conduct is a nice way of saying "we reserve the right to rat out our clients to the authorities."
In the end, ISPs are still going to have to wait for the courts to set precedent to know where they stand. The rules they have made for themselves have little meaning, except maybe to give customers less reason to trust them.
Maybe playing the game without rules is still preferable.