regulation of internet commerce
class ten - january 18, 2008
professor michael geist
university of ottawa, faculty of law
special guest appearance by:
Veena Rawat
Communications 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 — is
the guiding principle that preserves the free and open
Internet. Put simply, Net Neutrality means no
discrimination. Net Neutrality prevents Internet
providers from speeding up or slowing down Web
content based on its source, ownership or destination.”

Definitions
Telecom Policy Review Panel
\"The Telecommunications Act should be amended to confirm the right of
Canadian consumers to access publicly available Internet applications
and content of their choice by means of all public telecommunications
networks 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.\"

Definitions
AT&T/BellSouth Merger
“AT&T/BellSouth also commits that it will maintain a
neutral network and neutral routing in its wireline
broadband Internet access service. This commitment shall
be satisfied by AT&T/BellSouth's agreement not to
provide or to sell to Internet content, application, or
service providers, including those affiliated with
AT&T/BellSouth, any service that privileges, degrades
or prioritizes any packet transmitted over
AT&T/BellSouth's wirelines broadband Internet access
service based on its source, ownership or destination.”

Definitions
• Discrimination - treating equivalent content or applications
in a different manner (often due to economic
considerations)
• Transparency - consumer awareness about the service they
are 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 use
my pipes free, but I ain't going to let them do that because we have spent this
capital and we have to have a return on it. So there's going to have to be some
mechanism 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 or
courier 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 pass
a law to confirm the right of Internet consumers to access publicly
available Internet applications and content of their choice.
– 77% of Canadians agree that net neutrality policies protect the
rights 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”