[DMCA-Activists] Canada to License ISPs?

[Seth Johnson]

(Forwarded from Digital Copyright in Canada list.  Article
text pasted below.  -- Seth)

-------- Original Message --------
Date: Sun, 27 Oct 2002 09:52:29 -0500
From: Jason Young <address@hidden>
To: Digital Copyright in Canada
<address@hidden>

On October 21st, MP Peter Stoffer (NDP,
Sackville-Musquodoboit Valley-Eastern Shore) re-introduced a
private member's bill that would require all ISPs to be
licenced by the CRTC.

The Internet Child Pornography Prevention Act, first
introduced in 1998 by former MP Chris Axworthy,  defines
ISPs as "a person who provides a service that facilitates
access to the Internet, whether or not the service is
provided free or for a charge." It would include non-profits
and intermediaries who provide services ancillary to
necessary access, such as caching, or those which facilitate
access to the substance on the Internet, rather than the
infrastructure, such as web hosting.

The definition embraces a potentially much larger number of
intermediaries than that recently contemplated by the
Federal Court of Appeal. In SOCAN v. CAIP et al., [2002]
F.C.A. 166, the court reviewed a Copyright Board decision
and found that the role of an Internet intermediary is prima
facie passive because they do not have the practical
capacity to exercise control over the content of the
material that is transmitted.  The court set out a three
part test for determining eligibility for limitation of
liability - often termed a 'safe harbour' - for ISPs. First,
the intermediary's activities must amount to the provision
of "the means of telecommunication"; second, these means
must be "necessary" for enabling another person to
communicate a work to the public; and third, the activities
in question must constitute the intermediary's "only act"
with respect to the communication. Bill C-234 contains no
such safe harbour.

Full story: 
> http://www.lexinformatica.org/modules.php?op=modload&name=News&file=article&sid=37&mode=thread&order=0&thold=0
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Canada To Licence ISPs? 

Posted by: Jason Young on Sunday, October 27, 2002 - 02:47
PM EST

On October 21st, MP Peter Stoffer (NDP,
Sackville-Musquodoboit Valley-Eastern Shore) re-introduced a
private member's bill that would require all ISPs to be
licenced by the CRTC. 

The Internet Child Pornography Prevention Act, first
introduced in 1998 by former MP Chris Axworthy, defines ISPs
as "a person who provides a service that facilitates access
to the Internet, whether or not the service is provided free
or for a charge." It would include non-profits and
intermediaries who provide services ancillary to necessary
access, such as caching, or those which facilitate access to
the substance on the Internet, rather than the
infrastructure, such as web hosting. 

The definition embraces a potentially much larger number of
intermediaries than that recently contemplated by the
Federal Court of Appeal. In SOCAN v. CAIP et al., [2002]
F.C.A. 166, the court reviewed a Copyright Board decision
[pdf] and found that the role of an Internet intermediary is
prima facie passive because they do not have the practical
capacity to exercise control over the content of the
material that is transmitted. The court set out a three-part
test for determining eligibility for limitation of liability
- often termed a 'safe harbour' - for ISPs. First, the
intermediary's activities must amount to the provision of
"the means of telecommunication"; second, these means must
be "necessary" for enabling another person to communicate a
work to the public; and third, the activities in question
must constitute the intermediary's "only act" with respect
to the communication. Bill C-234 contains no such safe
harbour. 

The bill would require ISPs to report subscribers who
committed offences under a number of sections of the
Criminal Code or listed in the bill, such as communicating
with a minor for the purpose of committing any of the
following: sexual interference (s. 151); invitation to
sexual touching (s. 152); sexual exploitation (s. 153);
incest (s. 155); anal intercourse (s. 159); compelling
bestiality or bestiality in presence of child (ss. 160(2) or
(3)); parent or guardian procuring sexual activity (s. 170);
corrupting children (s. 172); exposure to person under
fourteen (ss. 173(2)); sexual assault (s. 271); sexual
assault with a weapon (s. 272); aggravated sexual assault
(s. 273). The definition of 'minor' includes anyone under
the age of 14 or anyone under the age of 18 if the offender
is in a position of trust or authority or the victim was in
a dependent relationship with the offender. While the range
of contemplated prohibited behaviours is arguably broader
than that required by Article 9 of the Council of Europe's
Convention on Cyber-crime - to which Canada is a signatory -
given the sweeping clauses found elsewhere, it might be
surprising that the definition of who is considered a
'minor' is actually narrower than that required by the
convention. 

On the direction of the Minister, an ISP would be required
to block access or otherwise censor child pornography
anywhere on the Internet; failure to do so could result in a
fine and imprisonment of directors or both. The definition
of "child pornography" is imported from the Criminal Code,
but while the Code contains exceptions for prohibition under
the definition, the bill does not. Thus, the bill adopts a
very broad definition of "child pornography" without the
internal safeguards of the Code. Further, this shotgun
approach to an admittedly serious problem aims the barrel in
the wrong direction. By targeting ISPs, the bill effectively
ascribes joint and several liability for zoning the Internet
into kid-safe and adult areas, but does not recognize the
inability of any one ISP - or even all Canadian ISPs - to do
so. 

The vagueness of the regulation raises obvious free speech
concerns. In Reno v. ACLU, 117 S.Ct. 2329 (1997), the U.S.
Supreme Court struck down much narrower language in the
Communications Decency Act as void for vagueness and
overbreadth. The court found that it while it was
technologically feasible to block access to fora "containing
discussions of art, politics or other subjects that
potentially elicit 'indecent' or 'patently offensive'
contributions... it would not be possible to block their
access to that material and 'still allow them access to the
remaining content, even if the overwhelming majority of that
content was not indecent.'" Additionally, like the CDA, Bill
C-234 would be a criminal statute. If not from the
opprobrium and stigma of regularized law enforcement
scrutiny of your inbox, the severity of sanctions may well
cause speakers to remain silent rather than communicate even
arguably unlawful words, ideas, and images. 

Bill C-234 would allow the government to exchange
information "to prevent or minimize the use of the Internet
for the publication or proliferation of child pornography or
to facilitate the commission of an offence under the
Criminal Code or this Act or a similar law of the province
or foreign state." This clause too suffers from the
criticisms leveled above, but begs a further question: does
"similar" require dual criminality? That is, would a merely
similar law in another country trigger the exchange of
personal information from Canada or would the exchange
require a same or equivalent offence in Canadian law? 

The bill stipulates that the Minister "may prescribe by
regulation any powers that are reasonably necessary in the
opinion of the Minister to facilitate searches of electronic
data or systems or storage in the execution of a search
warrant issued under s. 487 of the Criminal Code in respect
of an offence or suspected offence under this Act." There
doesn't seem to be much of anything reasonable about this.
Among other things, s. 487.02 contains an assistance order
clause which requires "any person to provide assistance,
where the person's assistance may reasonably be considered
to be required to give effect to the authorization, warrant
or order." 

It is difficult to imagine the goal of additional
regulations beyond the formidable powers already granted law
enforcement under s. 487. It would seem another exercise in
the NDP's inability to say what they mean in this bill,
despite it being drafted by a lawyer, now the
Attorney-General of the Province of Saskatchewan. The
alternative is that they mean what they say, which would be
worse. 

Of course, private members bills rarely move past first
reading in the House, particularly when they come from
opposition members. But the frighteningly ill-crafted
language in this bill should give pause anyway, since
cybercrime issues are not only on NDP minds these days. The
Official Opposition in the House of Commons, the Canadian
Alliance, spent much of the last week introducing
anti-child-porn petitions. Meanwhile, the Liberal's
consultation on lawful access amendments is currently
wending its way through the halls of the Department of
Justice. The lawful access proposals represent the first
step to ratifying the Council of Europe's Convention on
Cyber-crime and would require Canada to establish criminal
offences for producing, offering, making available,
distributing or transmitting through or possessing child
pornography on a computer system when committed
intentionally. If ever there was a time for the Liberals to
adopt an opposition party initiative, now would be that
time.