It was 20 years ago that Columbia University law professor Tim Wu published his seminal “Network Neutrality, Broadband Discrimination” [pdf, 1.4MB].

The subject of network neutrality has been part of more than 250 posts on this site, examining how regulatory authorities have dealt with the concept (or not) through the past 2 decades.

Last October, I wrote about how the UK regulator, Ofcom, was proposing a more nuanced approach to its regulations given the evolution of broadband technologies and the marketplace.

A recent article by University of South Africa professor Petrus Potgieter asks if it is time to take a break from the concept. “Twenty years of ‘network neutrality’ – time for a break? Consumers have a long-term interest in cost recovery and value sharing”.

He observes that “[network neutrality regulation] appears to be largely an affliction of the northern hemisphere as the rugby nations of Australia, South Africa and New Zealand have absolutely no network neutrality regulation, little discussion of the topic and no discernible shortage of any online content or service. In much of Latin America, regulators have had to create exceptions for zero rating to ‘network neutrality’ regulation because of strong popular demand.”

Professor Potgieter talks about 3 phases of internet commercialization (to date).

It is worth reflecting on the differences between phase II and phase III. In phase II, the ISP delivers ad content for which the content provider charges the advertiser and which traffic is therefore not directly monetised by the ISP. However, this is nuisance traffic for the end-user and the websites carrying the advertising have an incentive not to overdo it, lest they lose ‘eyeballs’. Since the end-user pays only the ISP, the broadband provider monetises the full value of the traffic to the end-user. The fact that this traffic also has value for the content provider (and the advertiser) is of secondary importance.

We are now in phase III where the bulk of the traffic is of subscription content for which the end-user pays the content provider (for example, Netlix) directly. The ISP delivers traffic to the end-user, the value of which (to the end-user) it cannot fully capture since the end-user has already paid the content provider. Furthermore, the traffic volumes are enormous and growing at a crisp rate through (a) increased time spend in front of a networked screen and (b) steadily higher resolution/quality of content.

He argues that Phase III is characterized by relatively few, identifiable originators of traffic, making it natural for internet service providers to explore partnerships with the content providers. “The dogma of network neutrality makes both cost recovery and value sharing impossible. Although this is to the short-term benefit of content providers, it is detrimental in the medium term to the development of end-user broadband infrastructure.”

He suggests that a cost recovery debate, exemplified by the legal battle between Netflix and South Korea’s SK Broadband, might provide a catalyst for for a fresh look at restrictive net neutrality regulation.

The Potgieter article argues that network neutrality regulations ultimately harm consumers by restricting choice. Canada’s policy framework for net neutrality is among the most prescriptive and restrictive. Twenty years later, is it time to review whether the regulations are still “efficient and proportionate to their purpose”.

I ran across the DIRT Report [pdf, 4.7 MB] last week. DIRT stands for “Damage Information Reporting Tool” and it is produced by the Common Ground Alliance (CGA), an association of companies that engage in underground construction. In other words, CGA members dig up dirt.

How does this relate to telecom? Well, when CGA members are digging, they want to dig up dirt, not buried infrastructure that gets in their way, infrastructure such as natural gas pipelines, water and sewer lines, electrical wires, or telecom cables and fibre.

For years, we have been trying to teach people to “Call Before You Dig” to arrange free locate services. In Ontario, the service bureau is “Ontario One Call”. Different areas may have different points of contact, but as a matter of general practice, if you contact any local electric, phone or gas company, they will put you in touch with the single number or website to arrange for all the underground services to be marked BEFORE you start digging.

CGA has an interactive version of its DIRT report that allows easy examination of data by province or state.

The report shows that overall, about a quarter of all damage is caused by work being done without people calling first. Despite all the work to build awareness, three out of five times, it is professional excavators at fault for not calling, not home gardeners.

I looked at the report and isolated Canadian telecom. In 2021 (the latest year reported), there were 4,255 damage reports, down 240 from 2020 (4,495), and more than 10% less than 2019 (4,840). About 5% (222) were caused by the occupants. More than half (2,375) were on the customer drops, about a third (1,436) were damage to distribution facilities, and just over 1% (55) were reported damage to transmission lines. Keep in mind that damage to transmission lines can impact a far larger number of customers.

When I looked at damage to natural gas and propane lines, in Canada there were 2,197 in 2021, of which around 20% were caused by the occupants. Apparently, professional contractors dig up gas lines even when there is a risk of blowing themselves up.

Frequent readers know that I have always had a special level of respect for the people who actually build and maintain our telecom networks, doing the physical work constructing, maintaining and repairing outside plant: towers, antennas, plowing and drilling for cables and fibre, installing and climbing poles.

That is a good segue to remind you that STAC2023, the annual gathering of the Structure, Tower and Antenna Council, is coming up in just 7 weeks, March 28-29, 2023. It will be held in person this year, at the Niagara Falls Convention Centre. Each year, this event is dedicated to safety and other best practices in the communications tower industry, bringing together industry professionals from across Canada.

Have you booked your place yet?

Every household with a school child in Canada should have an affordable connected computer.

That would be a bold, yet attainable goal. But let me crank it up a notch. I think the goal can and should be achieved before the start of the next school year.

We already have programs in place, through the federal Connecting Families program, or Rogers¹ Connected for Success, or TELUS’s Internet for Good.

While hundreds of thousands of households are eligible for these programs, too many homes aren’t yet taking advantage of the available savings. In some cases, there is a need for greater awareness of the programs. But, as I have written numerous times, we have learned that getting people online isn’t just a matter of price. In “A national digital literacy strategy”, I noted “Of those who do not currently use the internet, a significant portion attribute their lack of online activity to issues of digital literacy and concern for cybersecurity.”

Having access to low-cost broadband is only what we might call a “necessary, but insufficient” piece of the solution.

While there may be an issue with improving awareness of existing affordable access programs, this is a relatively easy problem to address. The government knows who qualifies under most of the programs and can get the word out through monthly assistance programs and through various social services agencies.

We need to develop more programs and develop partnerships with relevant social services agencies and organizations to assist with digital literacy training, as I discussed a few weeks ago.

Still, a problem we run into is that the carriers participating in these programs do not offer service in many rural and remote areas of the country, representing a significant number of households.

How do we cover the gap?

Perhaps governments at all levels may need to explore direct subsidies to assist with alternative access technologies. In some cases, there are smaller rural service providers; in other areas, broadband service may be available from a mobile or fixed wireless provider. In the most remote areas, satellite may be the only viable solution. In each of these cases, the lowest priced option would still be too expensive for some households. Perhaps it is time for the Federal Government to enhance its Connecting Families program, to expand the list of carriers and to offer a direct subsidy to qualifying households in areas that don’t have a participating service providers.

An effective broadband subsidy program for low-income households would have several key components, enabling eligible households to have choice of service provider and service levels. The approach of a direct government subsidy paid to the service provider could lead to the emergence of companies and agencies with a targeted focus on serving this segment of the market. Work would need to be done, and done quickly to be ready for school in September:

• Eligibility criteria: The program could use the same criteria as Connecting Families to receive the subsidy (families receiving the maximum Canada Child Benefit and low-income seniors receiving the maximum Guaranteed Income Supplement).
• Subsidy amount: The subsidy should be sufficient to make broadband service affordable for low-income households, taking into account the cost of internet service and any necessary equipment. The subsidy could be paid directly to the participating service provider, and cover up to a designated portion of the monthly price, up to a subsidy of some fixed level per month (for example, up to $50 per month subsidy).
• Provider options: By offering a direct subsidy, eligible households can choose the service that best meets their needs and preferences.
• Ongoing support: The program needs to include ongoing support to low-income households, such as troubleshooting assistance and education on how to use the internet and access government services.
• Data Privacy and security: The program must ensure that personal data and information of low-income households is protected and not shared without consent.
• Measurable outcomes: The program should have clear objectives and metrics in place to measure the impact and effectiveness of the subsidy, in order to make any necessary adjustments and improvements.

There are all sorts of issues that would need to be sorted through: getting devices, setting up appropriate financial controls, monitoring eligible regions, and so much more. I am not so naive as to think this would all get resolved this year, but it could. Couldn’t it? Shouldn’t it?

In one of my posts last week, I quoted an editorial in the Globe and Mail, “If there is no definition of success, there cannot be failure. And if there is no failure, there is no risk of accountability.”

I’d like to see the next budget take a risk and set a bold, but attainable objective: Every household with a school child in Canada should have an affordable connected computer.

---

¹ As part of its plan to acquire Shaw, Rogers has said it “will also expand its Connected for Success program nationally to reach every Canadian where the combined company offers Internet services.” In its appearance at the Parliamentary INDU Committee last week, Rogers hinted that it plans to launch a wireless complement to Connected for Success. TELUS currently offers mobile plans for youth and seniors under its Mobility for Good program.

“If there is no definition of success, there cannot be failure. And if there is no failure, there is no risk of accountability.”

That was the closing line of an editorial in last Saturday’s Globe and Mail, “How to succeed in Ottawa without ever trying.” The article speaks of an aversion in Ottawa to set “a vision married to a measurable outcome, a yardstick by which success or failure could be measured.”

Instead, we have programs, budget line items that allocate pots of cash to hand out for various endeavours deemed worthy. Rural broadband is a juicy one. Innovation is another.

Ministers handing out money makes for a great press release, and maybe even a great photo op. “Our government is proud to contribute to the initiative…”

What could possibly go wrong?

As we now know, the answer to that question is “a lot.”

In a press release dated April 21, 2021, we read a quote attributed to The Honourable Ahmed Hussen, Minister of Housing and Diversity and Inclusion:

In Canada, diversity is a fact, but inclusion is a choice. Our government is proud to contribute to the initiative ‘Building an Anti-Racism Strategy for Canadian Broadcasting: Conversation & Convergence.’ Together, let’s continue to build a country that is better, fairer, and more inclusive for everybody, and work together to address issues such as the barriers faced by racialized Canadians. Thank you to CMAC for opening these discussions.

According to Blacklock’s Reporter, a briefing note prepared by Canadian Heritage “says it did a “comprehensive assessment” before awarding a $133,822 grant to a consultant who fantasized on Twitter about shooting Jews.”

Apparently, that assessment wasn’t quite comprehensive enough. No one did a basic web search before awarding the funds, or allowing the Minister to appear in a press release alongside Laith Marouf. In my blog post last April, I asked “Was sufficient due diligence performed when Heritage officials were reviewing this funding request?”

An essay in last week’s New York Times asked “What if Diversity Trainings Are Doing More Harm Than Good?” The article observes that the diversity, equity and inclusion (D.E.I.) “industry” reached an estimated $3.4 billion in 2020 in the United States.

D.E.I. trainings are designed to help organizations become more welcoming to members of traditionally marginalized groups. Advocates make bold promises: Diversity workshops can foster better intergroup relations, improve the retention of minority employees, close recruitment gaps and so on. The only problem? There’s little evidence that many of these initiatives work. And the specific type of diversity training that is currently in vogue — mandatory trainings that blame dominant groups for D.E.I. problems — may well have a net-negative effect on the outcomes managers claim to care about.

According to the minutes of its meeting last October 25, the Parliamentary Heritage Committee agreed “That the officials from the Department of Canadian Heritage that were responsible for the funding of Laith Marouf be invited to appear before committee regarding the federal funding provided to the Community Media Advocacy Centre by the Department of Canadian Heritage and the Department officials’ handling of the situation”. The officials are to “appear before the committee following the conclusion of the consideration of Bill C-18”.

Consideration of Bill C-18 concluded before the year-end holiday break. There have not been any meetings scheduled yet.

When will the Heritage Committee take a comprehensive look at the failures that led to a serial purveyor of hate being engaged under the guise of of an anti-racism program? It is long overdue for an examination of federal funding provided to CMAC, and the Department officials’ handling of the situation.

I have been taking some time to consider (and reconsider) my views on legislation to deal with online harms.

Last week, I had the pleasure of joining MP Anthony Housefather (Liberal – Mount Royal) in participating in an online event entitled “Exposing Antisemitism: Online Research in the Fight Against Jew Hatred”. My presentation looked at “Encountering and Countering Hate”.

I took the attendees through my experience over the past two years of dealing with the online presence of Laith Marouf, a subject that has been canvassed here frequently over that period.

As I described to the webinar attendees, it is important to distinguish between “hate” and what is “merely offensive”. In my view, we may not like encountering offensive content, but that doesn’t mean there should be legal restrictions on it. My readers have seen me frequently refer to Michael Douglas’ address in Aaron Sorkin’s “The American President”.

That said, Mr. Housefather argued that we should examine the algorithms that seem to amplify those messages that elicit visceral emotions and thereby get shared and forwarded by those readers who agree, as well as those who oppose.

Aviva Klompas and John Donohoe wrote “The Wages of Online Antisemitism” in Newsweek last week.

The old saying goes, sticks and stones may break my bones, but words will never hurt me. Turns out that when those words are propelled by online outrage algorithms, they can be every bit as dangerous as the proverbial sticks and stones.

The authors write, “When it comes to social media, the reality is: if it enrages, it engages… Eliciting outrage drives user engagement, which in turn drives profits.”

In the next month, the US Supreme Court will be examining a couple of cases that challenge certain shields for online platforms found in Section 230 of the Communications Decency Act. As described in last Friday’s NY Times:

On Feb. 21, the court plans to hear the case of Gonzalez v. Google, which was brought by the family of an American killed in Paris during an attack by followers of the Islamic State. In its lawsuit, the family said Section 230 should not shield YouTube from the claim that the video site supported terrorism when its algorithms recommended Islamic State videos to users. The suit argues that recommendations can count as their own form of content produced by the platform, removing them from the protection of Section 230.

A day later, the court plans to consider a second case, Twitter v. Taamneh. It deals with a related question about when platforms are legally responsible for supporting terrorism under federal law.

The UK has been examining its Online Safety Bill for nearly two years. Its intent is to “make the internet a safer place for everyone in the UK, especially children, while making sure that everyone can enjoy their right to freedom of expression online”.

Key points the Bill covers
The Bill introduces new rules for firms which host user-generated content, i.e. those which allow users to post their own content online or interact with each other, and for search engines, which will have tailored duties focussed on minimising the presentation of harmful search results to users.

Those platforms which fail to protect people will need to answer to the regulator, and could face fines of up to ten per cent of their revenues or, in the most serious cases, being blocked.

All platforms in scope will need to tackle and remove illegal material online, particularly material relating to terrorism and child sexual exploitation and abuse.

Platforms likely to be accessed by children will also have a duty to protect young people using their services from legal but harmful material such as self-harm or eating disorder content. Additionally, providers who publish or place pornographic content on their services will be required to prevent children from accessing that content.
The largest, highest-risk platforms will have to address named categories of legal but harmful material accessed by adults, likely to include issues such as abuse, harassment, or exposure to content encouraging self-harm or eating disorders. They will need to make clear in their terms and conditions what is and is not acceptable on their site, and enforce this.

These services will also have a duty to bring in user empowerment tools, giving adult users more control over whom they interact with and the legal content they see, as well as the option to verify their identity.

Freedom of expression will be protected because these laws are not about imposing excessive regulation or state removal of content, but ensuring that companies have the systems and processes in place to ensure users’ safety. Proportionate measures will avoid unnecessary burdens on small and low-risk businesses.

Finally, the largest platforms will need to put in place proportionate systems and processes to prevent fraudulent adverts being published or hosted on their service. This will tackle the harmful scam advertisements which can have a devastating effect on their victims.

I wrote a couple pieces last year that are worth a second look:

• The need for more diverse perspectives, February 1, 2022
• Testing democratic freedoms, February 22, 2022

I also think back to “Free from online discrimination”, an article I wrote 3 years ago when ministerial mandate letters called for creation of a Digital Charter so that Canadians would have “the ability to be free from online discrimination including bias and harassment.”

Will Canada follow the UK lead in developing our own legislation?

Does a UK approach adequately protect our Charter freedoms of expression?