The Ottawa Sun
August 14, 1996

Hunt on for ISP test case

by Rob Hall,

Last month iSTAR received a lot of press attention for the removal of a handful of newsgroups.

The removal of these groups, which contained either copies of pirated software, or pictures of children forced to commit pornographic acts, brought immediate condemnation from the Internet community.

Discussion in newsgroups was vengeful and critics cried out about free speech and their individual rights being trampled.

By removing the groups, iSTAR simply stated that they did not want this illegal material stored on their servers. The Criminal Code is clear. Be in possession of illegal material, even in electronic form, and you face prosecution.

At a recent meeting of the Canadian Association of Internet Providers (CAIP), the RCMP was invited to speak. Two things immediately became clear.

First, the laws in this area have not been tested before the courts. Who is liable for material stored on servers, transmitted over high speed data lines or sent halfway around the world?

Secondly, it's also apparent that police forces are actively seeking that "Test Case". Remember that the police do not make the law. They are in limbo just as much as the ISPs. Until a case is brought before the courts and a precedent set, there is no clear direction.

To further understand the problem you must realize that there are many jurisdictions involved. Take the region of Ottawa-Carleton for example.

The local police (now regional police) could press charges based on a complaint. The provincial police also have some jurisdiction and could also launch an investigation. The RCMP have some responsibility and could equally start an investigation. Any of these three levels could investigate and prosecute. It simply depends on where the complaint originates. There is no one party clearly responsible for this type of crime.

The RCMP have a division which has responsibility for setting policy in this area but the division is staffed by a total of three officers for all of Canada and they're also responsible for counterfeiting and all credit card crimes.

Although they have expertise in this area, they are obviously extremely understaffed and not able to keep up with the growing demand for information concerning Internet crime.

Now back to iSTAR's decision. If the police want a test case, it's safe to assume they want a good one. They would not pick a small ISP, because you would not want a precedent set simply because the defendant lacked the means to properly present a case.

Now, who are the candidates for this case. Obviously there are iSTAR, Hookup, UUnet, and Sympatico. Sympatico is owned by Bell, and would not be a good case as there may be problems with Bell's status as a carrier.

That leaves the three national ISPs. Hookup was already restricting some groups, so iSTAR's decision now makes sense. They simply wanted to remove themselves from the pool for the test case. This was a logical business decision based on all the facts.

The CAIP formed a committee to study this area and all of the national ISPs are represented. The committee is being led by Margo Langford, iSTAR's legal counsel and will study the legal and liability issues of restricting material on the Internet. It will produce a set of recommendations for the members of CAIP which should be available in the next few months.

Rather than trying to make a few bucks by promoting an Internet service as uncensored and continuing to provide access to what most of society views as garbage, I would urge ISPs to follow the lead of the bigger players.

Ignoring the fact that illegal material is on your servers will not make you immune from prosecution. Feigned ignorance does not shield you from the law, but just makes you a bigger target to be the first test case.

Copyright © 1996 by the Ottawa Sun. All Rights Reserved. Reprinted with permission.