I have never been to Waterloo - and only read about the morne plaine as described by Victor Hugo - and know little about water law. I should. We should. Water law has perhaps more to say how to regulate new technology and net neutrality than any other disciplines. Inspired by scholarly works on the commons - or rather the tragedy of commons, an expression famously coined by Hardin in 1968, and guided the atemporeal propositions of our Civil code, I know that “certain things may not be appropriated” (article 913). Water can not be appropriated. Why would the torrents of bits be?
Last week, the CRTC rendered its decision 2008-108 on what is called traffic shaping (lissage en français) which consists of slowing down the transfer rates of all peer-to-peer (P2P) file-sharing applications during peak periods”. The content is still available to the end-user but will reach him more slowly. Bell uses deep packet inspection (DPI) technology to implement its traffic shaping. Because the operation of the software itself raises a series of privacy issues the Privacy Commissioner announced recently that it is currently looking into a complaint about deep packet inspection.
Bell submits that controlling traffic is necessary due, among other things, to P2P file-sharing applications which allegedly overwhelmed the traffic and directly hinder the performance of the network - an effect which ultimately affects end and wholesale users. The CRTC dismissed the reliefs sought by the Canadian Association of Internet Providers to have Bell ceased this practice. In essence, the CRTC found no infraction to the Telecommunication Act since Bell technical measures applies to all without discrimination and adds: “Bell Canada, as a network operator, is responsible for ensuring that its network is operated effectively and efficiently, and considers that Bell Canada should be able to take measures in this regard”. It reminded me of the famous “Kraft is simply taking care of business” verdict of the Kraft case (Harrington, J., FC Trial division). The magic hand.
Coming back to our liquid analogy, could it not be said that Bell regulates commons in a manner that would conflict with fundamental property law principles? Article 913 of the Quebec Code certainly opens the possibility to a quasi-commodification of water and air but let us not forget that this option is conditional to the public utility criteria: “water and air not intended for public utility may be appropriated if collected and placed in receptacles”. Certainly the determination of what may or may not constitute public utility in relation with the use of water is a vexed issue and would not outright solve the problem we are facing. But it could certainly put in perspective 1) the questionable role of the CRTC in a dialog - de sourd - about the elusive notion of neutrality 2) when no regulation means in fact discrimination and possibly 3) indirect commodification of intangibles (content) via privatization and control of infrastructure or even, maybe, a pratice that may constitute a new form of 4) anticompetitive practices. With respect to the latter, several serious arguments were made before the CRTC and notably that:
1 - Bell traffic-shaping practices degrade the performance of P2P file-sharing applications and impact services such as virtual private network (VPN) services, voice over Internet Protocol (VoIP) services, and other encrypted communications. (it should be reminded here that in 2005 the CRTC decided to regulate VoIP services only when it is provided and used as local telephone service)
2 - Bell traffic-shaping practices prevent content and application providers and service providers that rely on P2P file-sharing applications to distribute their content to end-users in the most efficient manner;
3 - Bell Canada’s traffic-shaping practices caused certain ISPs and their end-users to be subjected to an undue disadvantage by reducing the speed and utility of their services to end-users
Is there not something to be learnt from classic civil law property courses? from the notion of navigable watercourse and their waterbeds of the Code? Furthermore, in its behaviourial undertaking, the Code sets a rule of reason that should inspire our legislator : “the owner of higher land has no right to aggravate the condition of lower land” (979 CcQ), and further, “as the water leaves his land, he shall direct it, not substantially changed in quality or quantity, into its regular course” (981 CcQ).
It is all very surprising the the CRTC did not mention s. 36 of the Telecommunication Act which sets that “a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public”. In fact, the decision may have revived the question of internet poviders liability. The rationale behind most so called safe harbor mechanisms - providing for a exemption for carriers, is that ISPs should not be held liable because they are not effectively controlling the content. To held them responsible would create a liability without fault. A similar argument, although casted differently, was made in the 2004 Supreme court case Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers (2004): “Like a telephone company, they (ISPs) provide the medium, but they do not control the message”. This statement might have to be reviewed in the light of the recent CRTC decision. Bell does control the content, both by identifying and shaping the traffic with respect to P2P exchanges. By doing so and this what pointed out by Philippe Renaud of La Presse, Bell’s victory might constitute a new ground of action for content producers and rightholders as, admittedly, Bell can play an active role in thwarting P2P traffic of protected content.
Le CRTC par avis daté du 20 novembre, a annoncé la tenu d’une audience publique avec comparution démarrant le 6 juillet 2009. Celle ci portera sur les pratiques de gestion du trafic Internet par les FAI pour évaluer leur compatibilité avec la Loi sur les télécom. Bell et les autres fournisseurs d’accès seront parties à l’instance. Affaire à suivre…
Is it Bell’s Waterloo ?
pem
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