Law Times

Page 12 June 5, 2017 • Law Times www.lawtimesnews.com FOCUS technology lawyer who repre- sented the non-profit Internet activist group OpenMedia be- fore the CRTC, says the Video- tron decision was a natural pro- gression from the commission's previous pronouncements on net neutrality. In 2015, the CRTC ruled in another case with Videotron at its heart after complaints were made about mobile TV apps run by the company and its competitors at Bell. The services allowed cus- tomers to stream programming on their mobile devices without having the usage count against their monthly wireless data caps. A CRTC panel found zero- rating the apps contravened the Telecommunications Act by conferring an "undue and un- reasonable" preference on sub- scribers to their own services. Khoo says the new decision goes a step further because the zero- rating in the Unlimited Music case applied to content that was not owned by the carrier. She's hoping the CRTC's zero-rating crackdown will help hasten another of OpenMedia's long-term goals: the elimination of data caps altogether for home and mobile Internet use. "Zero-rating was only an is- sue because of our low data caps. When you give people the op- portunity to stream videos or music for free, they're less likely to question why the caps are so low to begin with," Khoo says. "Our hope is that by taking away that ability, carriers will have to invest in their networks, raise data caps and make service more affordable for everyone." Khoo says she expects Cana- da's telecommunications giants to continue looking for ways around the CRTC's net neutral- ity policy, noting that carriers are not required to run services by the regulator for approval due to the complaints-driven nature of the process. "I think it will put a stop to the most blatant violations, be- cause it's not going to be a good use of their resources to develop a new service only to have it shut down by the CRTC when some- one complains," she says. Vitali Berditchevski, a com- munications lawyer in the To- ronto office of Torys LLP, says the CRTC policy carves out some situations when zero- rating or non-neutral Internet traffic management may still be acceptable for ISPs. For example, he says bill checking or other administra- tive access to customer accounts could legitimately be zero-rated, while time-of-day price offers could pass muster under certain circumstances. Data throttling could also be acceptable when networks are operating under temporary capacity constraints, Berditchevski says. "It's not a blanket ban, al- though the default rule is that ISPs should be content-agnostic rather than choosing content," he adds. Berditchevski says he doesn't expect this policy to be the CRTC's last word on net neu- trality. "The challenge for the CRTC, as well as for everyone else in this area, is that it is moving quite quickly," he says. "I don't know if it will be in one year or in five years, but depending on which direc- tion things go, I think we will see some further decisions." LT Arguing that a lawyer's elec- tronic device constitutes a "law office" for the purposes of a search, Van Ommen suggested a simple solution: "We therefore seek your as- surance that border service agents will not seek to obtain passwords from lawyers to their electronic devices when crossing the border into Canada. If such a request is made and a lawyer re- fuses it, we seek your assurance that border agents will not con- fiscate the electronic device or otherwise detain the lawyer. By refusing access to the password, the lawyer is only discharging his or her professional obliga- tions as required by the various codes of professional conduct across the country," he wrote. Brenda McPhail of the Cana- dian Civil Liberties Association says carrying privileged infor- mation on devices across the border is a risk, but that it's not only lawyers who should be con- cerned about their privacy. The CBSA does not keep statistics on how often it requests access to travellers' electronic devices, but anecdotally, McPhail says, searches appear to be on the rise. "We don't think the CBSA should be treating a cellphone synonymously with a suitcase. They contain intimate details of people's daily lives, so it's quite different to going through some shirts and a few extra pairs of pants," McPhail says. She says travellers should as- sess their own risk profile when making decisions about what privacy precautions to take be- fore a border crossing, but she warns that extreme measures could have ironic consequences. "If you take everything off your phone, it may actually in- crease an officer's level of sus- picion," McPhail says. "We are often asked by people, and we tell them to do whatever makes them feel safe." Although the CBSA has a complaints mechanism for trav- ellers who felt mistreated during a search, McPhail says an inde- pendent external body oversee- ing the agency would improve the situation. LT Continued from page 10 Moving in opposite directions Searches on rise? Continued from page 11 Vitali Berditchevski says a CRTC policy carves out some situations when zero- rating or non-neutral Internet traffic man- agement may still be acceptable for ISPs. 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