Mark Goldberg


www.mhgoldberg.com





Fox Group Dispatch

Legislative neutrality

For years, I have found the issue of technological neutrality in legislation to be a fascinating area.

Eleven years ago, I wrote about “Illegal content on the internet,” looking at how the industry needed to find ways to tackle child abuse images on the internet.

Carriers are not being asked to be censors. Canada already has laws that forbid certain types of content. If the illegal content is in printed form, our customs agents confiscate it at the border. If these existing laws are to have meaning, we should be taking steps to close the digital loophole.

There are numerous cases where we treat digital content differently from the same material in print form. Generally, those differences result in more lenient regulation of digital content than the print equivalent. The most significant exception to this rule is commercial marketing messages, which are subjected to extremely harsh legislative restriction in electronic form (For a discussion of CASL, see “Snacking on digital policy,” from 3 years ago), but are freely distributed in paper form.

European states, such as Germany, have been closing its digital loopholes for more than a decade. In 2006, I wrote about an EU directive requiring that service providers retain “data necessary to trace and identify the source of a communication” in order to provide law enforcement officials with access to the same information they would have in a paper environment. In 2008, I noted that France ordered ISPs to block hate content. In 2009, I wrote that Germany took steps to protect copyright for content on the internet. At that time, I asked “Are Europeans going to lead in treating digital and conventional content within a technology neutral legal framework?”

Earlier today, Reuters reported “German cabinet agrees to fine social networks over hate speech.” The report attributes to Justice Minister Heiko Maas the statement: “There should be just as little tolerance for criminal rabble rousing on social networks as on the street”.

Why do we still treat the digital world differently?

A few months ago, Canada’s Minister of Innovation, Science and Economic Development Navdeep Bains said “The digital economy is the economy.” He is right.

Perhaps in recognition of the transition of the economy, Canada’s recent Budget promised a review of the legislation that governs the internet:

To ensure that Canadians continue to benefit from an open and innovative Internet, the Government proposes to review and modernize the Broadcasting Act and Telecommunications Act.

In this review, the Government will look to examine issues such as telecommunications and content creation in the digital age, net neutrality and cultural diversity, and how to strengthen the future of Canadian media and Canadian content creation.

As part of that review, Canada might consider exploring those areas in which the digital economy receives different treatment from legacy and determine whether each of the distinctions are appropriate.

6 comments to Legislative neutrality

  • Jared

    There’s a fairly large distinction between the digital economy and the analog economy, in that the digital economy is automatically international unlike the analog economy which is national.

    You cannot and should not apply apply national legislation to international trade, which the digital economy is part of.

  • Cannot? Actually, I think we have seen that we can.

    Should not apply national legislation to international trade? Why not? Haven’t we always?

  • Jared

    Without getting bogged down into the semantics of cannot and should not, let me give some context.

    All national laws are territorial. Laws cannot be enforced outside of their juridisticion. Laws that cannot be enforced are bad and should not be legislated.

    It is unjust to even try to apply your laws to somebody that is outside your juridisticion, especially if their actions are legal in their own juridisticion. The injustice is only compounded if the nation state’s inability to enforce their laws out of juridisticion is channeled into strongarming a private third party to enforce the laws through extralegal means.

    So, to summarize: a nation state cannot enforce it’s laws beyond it’s territory, nor should they even try to. Any attempt to do so will pervert the rule of law and Balkanize the Internet.

  • So, Jared: what are your thoughts on Canada’s anti-spam legislation (CASL) that applies to electronic commercial messages directed to a Canadian, regardless of country of origin?

    Or “geo-fences” that restrict transmission of content in order to allow creators to license intellectual property by country?

    Are these extra-territorial applications of laws, or a nation state asserting sovereignty over its own part of the world?

  • Jared

    I think we can both agree that both are futile.

    Neither has in any meaningful way reduced spam or copyright infringement. However, one isn’t like the other. As far as I know there is no legislation banning and/or penalizing circumvention of geoblocking.

    I will freely admit to not reading the full CASL legislation, but based on the summary it’s a bad law no should never have been passed. There is no way to know whether the recipient of a Commercial Electronic Message is in Canada. There is also no way to enforce the law or to collect on fines if the sender is outside Canada.

    Now, I hate spam as much as the next guy, but CASL isn’t how you should go about stopping spam. It’s inefficient, impossible to comply with and does nothing to deter the global spam problem. I’m sure it has a deterrent effect within Canada, but that’s no reason for the legislative overreach.

    So, yes, CASL is extra-territorial application of law. Geo-fencing is just fiddling while Rome burns.

  • Michael Connolly

    No mention was made in the Budget of reviewing and modernizing the Radiocommunication Act. There have been repeated calls to do so going as far back as the Telecommunication Policy Review Panel report of 2006. One of the most important changes required is to move spectrum regulation out of the political sphere inherent in hands-on regulation by a minister. As the TPRP noted:

    The current mix of policy making and regulatory functions within Industry Canada is something of an anomaly. Canada is one of the few OECD countries where a politically appointed minister remains responsible for spectrum licensing and management. This approach has been abandoned in the United Kingdom, Australia, the United States, most European countries and even in most developing countries. Of the 30 OECD countries, only six have ministries that retain this authority — Canada, Japan, South Korea, New Zealand, Austria and Italy (Table 5-1). More generally, there has been a trend over the past five years among Canada’s major trading partners and the majority of OECD countries to transfer responsibilities that were formerly with government ministries to an independent regulatory authority. The key benefits of having an independent regulator include:

    • • providing more stability in processes
    • • providing a greater degree of continuity
    • • allowing for arbitration
    • • having more effective enforcement powers
    • • freedom from political pressure.