Law Times

LAW TIMES / MAY 5, 2008 T Efficiencies come with competition greatly magnified by taking place in the political and media heart of the province. Unfortunately, it also generated an enormous amount of puffery around the much broader question of how you organize public services in Ontario. Blaming the TTC union mem- bership for rejecting what was already an over-generous deal, as some people did, focused on the wrong target. Equally false was the self- congratulatory nonsense issuing from the Liberals at Queen's Park when they introduced back-to- work legislation. They were full of rhetoric about their belief in the collective bar- gaining process and about how 97 per cent of all labour negotiations are successfully resolved without a work stoppage. But that's posturing. The problem is the monop- he recent short-lived transit strike in Toron- to was a local concern oly power inherent in a single, non-competitive government- run transit system. Or school system. Or water and doesn't cause the problem. It just makes it worse. Inside Queen's Park By Derek Nelson settlements are even more costly than negotiated results. Both positions assume that mo- nopolies are good things and that competition is bad. The genuine solution is to end the monopoly. In the case of transit, one mech- anism is to franchise (privatize) the surface routes while outsourc- ing maintenance and other tasks through competitive bids, such as has been done successfully in Lon- don, England and other cities. In the case of education: vouch- ers. And so on. sewer plants. Or anything else. That it is totally unionized The Liberals didn't order the unions back to work because there was a strike. They ordered a return to the job because the monopoly nature of the transit system meant transportation chaos in Toronto if the strike had continued. That's why so much of the dis- cussion surrounding the strike is ludicrous. In monopolies, labour negotiations in the normal mean- ing of the phrase don't exist. The issue is already decided. The union simply extracts what it thinks will satisfy its members. It gives up nothing in the talks with manage- ment, who in theory represent the taxpayers who pay for the system, but in reality have no incentive to hold the line or practise restraint. "Ability to pay," which is supposed to be taken into account in arbitra- tion, is simply ignored. Taxes can always be hiked. powerful, the unions carefully organize at election time to en- sure those elected to public bod- ies such as parliaments, councils, and school boards are friendly to their demands. If not, they work hard to defeat them. But again the fault is not with the unions. They are just doing what comes naturally. It is the monopoly-friendly And because they are rich and Whether these institutions re- main unionized or even govern- ment-owned does not matter. Ef- ficiencies automatically come with competition. Ask the Canadian Auto Workers, who unlike their public sector union counterparts, lack monopoly power to force us to buy the cars they make. The difficulty in Ontario, where most of the media and political class are addicted to monopoly operation by government and are suspicious of competition and the private sec- tor, is a willful blindness to reality. Let me give a small but pertinent example from a recent legislative debate, where several Liberal mem- bers regurgitated conventional wis- dom that the 2000 E. coli poisoning of the water at Walkerton was proof of the need for government owner- ship, tighter regulations, and of the failure of the private sector. Or as Peterborough Liberal Jeff COMMENT PAGE 7 Network neutrality debate reignited F or the most part, internet service providers have tra- ditionally abided by the unwritten principle of network neutrality. That means they would not block or filter inter- net traffic by application type and would not give priority to one type of traffic over another. Network neutrality has been a hot topic in the United States for the past several years, but only recently have similar concerns about Canadian internet service providers received wider atten- tion in the Canadian media. Apparently, Canada's largest Bits and By Alan Gahtan ISPs, including Bell and Rogers, have been using "traffic-shap- ing" or "bandwidth-throttling" measures for a while now with their retail internet customers to slow down (by up to 90 per cent) certain types of traffic such as peer-to-peer file sharing pro- grams. ISPs argue that certain types of traffic uses up a dispro- portionate share of their avail- able bandwidth, slowing down internet access for all users, and that they must resort to such techniques (particularly during peak usage periods) in order to maintain high-quality service for their other customers. Bell recently started to also apply the same traffic-shaping measures to its wholesale cus- tomers (smaller ISPs that buy internet connectivity from Bell and resell it to their own us- ers). Leal put it: "Reduced regulations" and the "privatization of laboratory testing" were contributing factors to the tragedy at Walkerton. The irony here is that Walker- nature of the Ontario political system, with its legacy of Ontario Hydros and TTCs and the entire education edifice, among others, that is genuinely the problem. Much musing has resulted over whether it might be better to de- clare the transit system an "essential service" and send negotiation ques- tions to an independent arbitrator. The argument appears to be between those who believe the right to strike is sacred, and those who believe that arbitrated ton's water supply was a govern- ment monopoly. To the degree to which the province's environment ministry was complicit in its failure, it was because of the nudge-nudge, wink-wink relationship that seems common among all regulatory pub- lic sector agencies when they deal with each other. If Walkerton's public utility had been a private sector operation, the ministry would have rightly come down hard on it. In the case of Walkerton, of course, and despite Leal's assertion, the private sector water-testing lab was the only player that did its job perfectly and did it the way it was contracted to do so. Interestingly, Walkerton, unlike the Liberals in the legislature, ap- pears to have drawn the appropriate conclusion from the 2000 tragedy. It has since privatized operation of its water supply through a public tendering contract process. Too bad that can't happen at the TTC and every other transit opera- tion in the province. LT Derek Nelson is a freelance writer who spent 19 years at Queen's Park. His e-mail is jugurtha@rogers.com Association of Internet Provid- ers (http://www.cata.ca/Commu- nities/caip/) to file a complaint with Canadian Radio-television and Telecommunications Com- mission in early April (http:// www.cata.ca/files/PDF/caip/ CAIP-PartVII__Traffic-Shap- ing_Final_v2.pdf). CAIP con- tends that such measures have significantly degraded the level of service and have given rise to increased complaints from cus- tomers having trouble transfer- ring files, listening to internet radio stations, or using voice- over-IP services. In addition to the throt- tling, Bell is apparently also This led the Canadian Letters terminating some very high- usage subscribers. One user posted a copy of a termination letter he received from Bell due to excessive bandwidth usage on Broadband Reports' user forums. Unlimited doesn't re- ally mean unlimited. It means unlimited so long as there's no violation of the provider's ser- vice agreement and acceptable- use policy, and creating a large burden on the network is such a trigger. In Bell's defence, the user in question was apparently using more than 200-300 giga- bytes per month. Other users were bragging that they utilized even more bandwidth. To put this into perspective, that much bandwidth would be sufficient to download 30,000 MP3 songs or 300 pirated movies in a single month. A big problem of this cat- and-mouse game for the rest of us is that many users of peer- to-peer file sharing applications are turning to encryption to try and bypass throttles imposed by their ISPs on such file shar- ing. And there have been posts about ISPs fighting back by throttling encrypted traffic. If true, this could create a huge problem, as it would interfere with business and professional users checking their e-mail or connecting to their office re- motely using VPNs. If the increased amounts of internet bandwidth being con- sumed by peer-to-peer file shar- ing applications like BitTorrent have really been placing a strain on a system that was common- ly sold on a one-price, all-you- can-use basis, then something probably needs to be done. Unilaterally degrading certain types of services may not be the right answer, at least not without prominent notice to Bytes subscribers and the availabil- ity of competitive alternatives. Capping monthly bandwidth or charging based on a tiered pricing model is probably less costly to implement and may meet with much less market resistance. It also means that occasional users of high- bandwidth applications don't need to be blocked or have their service degraded. Bell has apparently started taking steps to reform its pric- ing plans, following similar steps taken by Rogers (which report- edly imposes surcharges on us- age beyond an applicable pack- age cap). According to the CAIP complaint, Bell has advised its employees in March to stop sell- ing unlimited internet access, and as of June 30 the amount of overage fees charged to new customers who exceed their cap will no longer be limited. Another related issue is liabil- ity. Traffic-shaping techniques mean the ISP is opening every packet a subscriber sends or re- ceives, examining the packet data and header information (which contains identifying information about the sender and intended recipient), and then applying certain rules as to what is to be done with that packet. It will be interesting to see if increased use of such measures will erode the "common carrier" protections against a number of forms of civ- il and criminal liability that ISPs have benefited from in the past with respect to the content of the communications they carried. If ISPs are implementing and ac- tively using technology that can monitor, throttle, or block cer- tain types of internet traffic, how long will it be before the trade groups for the motion picture studios and the recording indus- try consider going after them as another means of reducing illegal downloads or seeking additional revenue sources. LT Alan Gahtan is a Toronto-based technology lawyer and Law Times columnist. His web site is located at www.gahtan.com/alan to the Editor Re: Monday, Feb. 25, 2008, article: "Lawyer tells Senate he was driven out; Ex-prosecu- tor alleges 'overt racism and intimidation' at Justice" We are writing to provide clarification about spe- cific statistics that were provided during an inter- view for the article entitled, "Lawyer tells Senate he was driven out; Ex-prosecutor alleges 'overt racism and intimidation' at Justice," published on Feb. 25, 2008. The article states that "12 per cent of the lawyers in the department's executive group are members of visible minorities." The 12 per cent figure refers to the percentage of employees within the law group who have self- identified as visible minorities and work within the senior levels of the department. In other words, 28 of the 231 self-identifying, visible minority law- yers employed at the department are part of the senior cadre. These 28 visible minority lawyers ac- www.lawtimesnews.com count for only 4.1per cent of the 675 lawyers in the senior cadre across the department. The senior cadre represents approximately 28 percent of the total number of lawyers in the law group. The executive group, referred to in the ar- ticle, is distinct from the law group, and is largely comprised of professionals working in oth- er fields, such as corporate services, finance and communications. There are currently no visible minorities among the 37 persons occupying posi- tions within the executive group. We recognize that the department faces many challenges in creating a truly diverse and represen- tative workplace. We are working collectively to- wards meeting these challenges through concrete and tangible actions. Visible Minorities Champion Committee on Visible Minorities Departmental Advisory Assistant Deputy Minister, Management Sector Terrance A. McAuley Ines Kwan — Chair

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