RE: Al-Jazeera decision cited as precedent for further Internet regulation (CNM Sept. 17/04).

In your CNM article noted above and the accompanying editorial, both CNM and Mr. Mark Goldberg suggest that Canadian Internet service providers (ISPs) should adopt a self-regulatory approach to block access to Internet sites containing hate or child pornography and reference is made to Mr. Goldberg being "involved in early discussions around the formation of an industry self-regulatory body." To our knowledge, Mr. Goldberg has never contacted the Canadian Association of Internet Providers (CAIP) or the Canadian Cable Telecommunications Association (CCTA) to discuss his theory, or involved CAIP or CCTA in his "early discussions" about an ISP self-regulatory body. Had he done so, he would have learned that Canadian ISPs already self-regulate by removing content deemed illegal on web sites they host, and that CAIP and CCTA are participating on a recently established National Working Group involving law enforcement, government, industry, the Canadian online child pornography hotline (www.cybertip.ca) and the National Child Exploitation Coordination Centre (NCECC) to devise a national, made-in-Canada strategy to battle online child pornography. Among other things, this national group will examine in the Canadian context the very complex and controversial legal, practical and technical issues surrounding creation of the type of ‘illegal content database’ Mr. Goldberg envisages, and the blocking of allegedly illegal websites - an approach a US court determined this month to be overly broad, ultimately ineffective and unconstitutional. Moreover, had Mr. Goldberg contacted CAIP or CCTA, we would have identified the flaws in his suggestion that the CRTC’s Al- Jazeera decision somehow creates a precedent for requiring ISPs to block allegedly illegal Internet content. First, the Commission’s decision to hold Broadcast Distribution Undertakings (BDUs) accountable for programming that they do not originate is unprecedented in the broadcasting context and arguably goes beyond the scope of the Commission’s authority under the Broadcasting Act and the Canadian Charter of Rights and Freedoms. In fact, to date no BDU has elected to distribute Al-Jazeera under the onerous conditions imposed by the CRTC. As such, its usefulness as a precedent in the broadcasting context is questionable. Its extension to the Internet context is unimaginable. Second, the Commission’s decision highlights the fact that each licensed BDU that makes the choice to distribute Al Jazeera must enter into a contractual relationship with that service. In contrast, ISPs do not choose the content accessible on the Internet and, except in the case of the relatively small number of web sites they host, have no contractual relationships with any of the Internet content providers that produce the billions of pages of material from around the world that are available to Canadians at any given moment. Finally, both Canadian NEW MEDIA and Mr. Goldberg appear to be unaware that ISPs are already liable under the Criminal Code for knowingly accessing, hosting or transmitting child pornography. Moreover, the Criminal Code establishes a regime for the judicial review of Internet content alleged to be hate or child pornography and the judicially-ordered take-down of content found by the court to be illegal. We fully support this approach as a measured and appropriate procedure for dealing with allegedly illegal material on the Internet. As Canadian NEW MEDIA itself recognized, "putting ISPs officially in the position of being judge and jury offends notions of due process and the fact remains that there is too overwhelming a volume of information on the Internet for private enterprise to police alone". The approach suggested by Mr. Goldberg would put ISPs in exactly the position that CNM considers so offensive and unmanageable. The Canadian ISP industry takes seriously its role in helping to make the Internet a safer place for Canadians. The government, law enforcement and others involved in the battle against child pornography and hate on the Internet have long regarded Canadian ISPs as indeed "partners in solving some of the Internet age’s most disturbing problems". We therefore welcome informed debate on finding real and practical solutions to these problems. It is unfortunate that CNM chose to stir up controversy on this important subject by encouraging uniformed speculation without the benefit of input from the principal stakeholders. Tom Copeland, Chairman, Canadian Association of Internet ProvidersLori Assheton-Smith, Senior Vice President & General Counsel, Canadian Cable Telecommunications Association

RE: Al-Jazeera decision cited as precedent for further Internet regulation (CNM Sept. 17/04).

Broadcast | October 6, 2004

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