Law Times

lAw Times • April 22, 2013 Page 11 FOCUS Canada's refusal to sign telecom treaty applauded BY MICHAEL McKIERNAN For Law Times T he Canadian Internet Policy and Public Interest Clinic has backed Canada's refusal to sign an International Telecommunications Union treaty amid fears it could have paved the way for government regulation of the Internet. The University of Ottawa-based clinic was part of a preparatory committee hosted by Industry Canada as it consulted on its negotiating position ahead of the telecommunications union's world conference on international telecommunications in Dubai in December. The 12-day conference took place with the aim of updating the telecommunications union's regulations that have gone unaltered since 1988, long before the dawn of the Internet age. In the end, 89 countries that sent delegations signed on to the new treaty while 55 either postponed ratification or refused outright. Canada, the United States, Britain, and Australia were among the nations that ruled out support for the treaty entirely. Tamir Israel, staff lawyer at CIPPIC, says that was the right choice. Critics hope law dies Continued from page 10 remedies capped at $1 million per day. "The potential penalties are so severe that it would be almost silly for companies not to put at least some thought into how to comply before it comes into force, even with a three-year transition period," says Dvorkin. For his part, Szentesi says he'd happily give up anti-spam act compliance files to see the law die at this late stage. "My personal view is it's dreadful. I don't care if it never comes to fruition. I had hoped it would go away but unfortunately it doesn't seem it's going to." Lawford says his organization wasn't entirely happy with Industry Canada's new set of regulations. The revised version contains a third-party referral exemption that allows senders to forgo consent requirements when referred by an existing client. It also allows organizations to collect consent to receive e-mails from unknown third parties as long as recipients can unsubscribe and notify the original requester when they've withdrawn permission. Lawford also claims the expanded definition of personal relationship in the latest set of regulations could provide a shield for the makers of Facebook applications to e-mail the contacts of subscribers. But for now, he's happy to take the hit as long as it means getting the law into force. "We'll live with them and monitor them. If it gets abusive, then we can go back and change the act. . . . At the end of the day, we've had enough screwing around with the regulations." LT "Sometimes with these international treaties, everything can feel a bit nebulous. There's a sense that the impact at home may be felt way down the road, but we thought there was a lot of potential here for harmful policies — policies that do not take account of human rights and that don't take sufficient account of important online values like innovation," says Israel. The Switzerland-headquartered telecommunications union became an agency of the United Nations in the 1940s but dates back much further than that, to 1865, when it took the job of overseeing the international transmission of telegraph signals. "Obviously, they've moved beyond telegraphs now," says Israel. "They were trying to expand their regulatory scope into covering things like Internet content and other things we don't feel they have the institutional expertise for. There was an attempt to generally stretch their regulatory reach to include higher levels of Internet functionality that we think are really nuanced issues involving social, political, and human rights factors. That seemed to be the reason why a number of countries opposed the treaty." During the meeting, delegates from the United States and Canada reportedly fought the insertion of explicit references to "the Internet" in the regulations or associated resolutions for fear it would embolden claims for the telecommunications union's jurisdiction over Internet governance. In a statement issued after the Dubai meeting, Industry Minister Christian Paradis said Canada had attempted to find consensus on the new regulations with like-minded nations in order to recognize advances in telecommunications since the last treaty dating back more than two decades. "Canada believes in a secure, stable, and resilient Internet that enables rapid innovation and delivers benefits for Canadians," said Paradis. "The current multi-stakeholder, private sector-led model promotes innovation and the development of new digital industries." The effort failed, he said, because the final text of the treaty included provisions that threatened the maintenance of an open, accessible, and free Internet. "Our government will continue to support an open and accessible Internet that facilitates economic development and prosperity," Paradis added. According to Israel, the way the telecommunications union functions doesn't suit the fast-changing world of the Internet. "The approach it takes to developing policy is very proscriptive, which doesn't fit well when you're talking about things that are a lot less clear and with much more variance: questions like what is spam and what is cyber security. A treaty by its nature is a binding, proscriptive outcome, which is problematic because of the rate of change in Internet matters. What's needed is a softer agreement leading to hard recommendations to ensure things keep up with the times." Israel says the telecommunications union's secretive approach and its generally closed nature also helped fuel suspicions about the organization. "In order for CIPPIC to participate in formulating its standards, without going through our national government, we'd have to sign up as an associate member," says Israel. "That's something that could cost hundreds of thousands of dollars just to get access to documents and see what is being developed inside." LT Rock For Life A fundraiser for LIFE (Lawyers International Food Enterprise) Featuring lawyers who play music: Quammie aka Greybeard | Tokyo Giants | Mo Vista The One Shot Band | Notorious Road | Oui B. Jamon Thursday, May 2nd, 2013 7pm - 11pm doors open at 6pm Lula Lounge 1585 Dundas St. W. (west of Dufferin), Toronto Admission is free; donations to World Vision or The Stephen Lewis Foundation are appreciated at the door SILENT AUCTION DINNER RESERVATIONS GUARANTEE SEATING RESERVE AT 416-588-0307 RockofLife_LT_Apr22_13.indd 1 www.lawtimesnews.com 13-04-16 2:16 PM

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