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Regulating the Net

Saddling the Internet with content controls is not only ill-advised, it might be sheer folly

by Wade Rowland

© Wade Rowland


The Internet is a foreign land. It is not so strange and unfamiliar a place as, say, Bhutan or Uzbekistan, but more in the class of France, which justifiably claims to be "everybody's second home," or Greece, which is exotic, and yet eerily familiar and comfy to anyone educated in the Western humanist tradition.

Those of us who have become familiar with the Net through work and recreation tend to take its geography and cultural peculiarities for granted, in the same way as one learns to eat cheaply in Spain at tapas bars, or to watch out for pickpockets in Johannesburg, or to travel by cab in Manhattan.

What seemed startling and disorienting on first contact, like nudity on Mediterranean beaches or the sardine-can crowding on Tokyo subways, soon loses its ability to amaze, and becomes simply part of the landscape.

The other side of that coin is the experience of returning home to find that our native habits and customs now seem a bit strange and outlandish. Visitors just back from the Third World, for example, are often profoundly shocked at the overstuffed consumer society to which they've returned.

It was this sort of culture-shock-in-reverse that I and many other Net habitues experienced as 1996 was drawing to a close and we read that Françoise Bertrand, chairperson of the CRTC, had a hankering to regulate the Internet.

Bertrand told a CBC-TV program that she felt there was a need to regulate Canadian content on the Net, and that she believed that companies that provide Internet access should take responsibility for pornography or hate material available on their servers, since, in her words, "they are the ones who are bringing it to the home."

"I think it's very important on those new modes of communication that there is Canadian content, Canadian producers as well," Bertrand said. "Some will say, 'Internet? Impossible. You cannot regulate that.' But one thing I know is, certainly from the start, to say there is no place, or no role, for the CRTC is certainly not in my mind."

The lust to regulate is part of the Canadian political culture, or as writer Robert Fulford put it, "What rice is to the Japanese, what wine is to the French, regulation is to the Canadians."

Even so, Bertrand's public musings in this case seemed so far off-base, so outlandish as to betray a passion gone amok. Clearly, there is an enormous cultural gap between the Netizens and the rest of the population - including, apparently, CRTC honchos - and one that needs to be filled before serious damage is done in the name of peace, order and good government.

In the spirit of public service, then, I present this excerpt from an unwritten book: A Hitchhikers Guide to the Internet, Chapter One - "Why the Internet Should Not and Probably Cannot Be Regulated by the CRTC or Anybody Else Despite What Françoise Bertrand May Think."

First of all, it seems clear from the laws governing the CRTC's jurisdiction that the commission has no legal right to regulate the Internet. The Toronto law firm of Smith Lyons has thoroughly researched the subject and its report can be found at its very useful Web site (www.smithlyons.ca).

The Internet appears to be beyond the jurisdiction of both the Telecommunications Act and the Broadcasting Act, the major pieces of legislation from which the CRTC derives its regulatory power. In fact, in both cases it seems perfectly obvious that the law specifically exempts such services as the Internet from regulation.

"Okay," you say, "so the law says (apparently) that the CRTC cannot regulate the Net. Maybe the law is wrong and the commission, or somebody else, ought to regulate it." Maybe, but it's an old axiom that for regulation to work it needs to be: (a) useful or necessary; and, (b) possible.

In the case of the Internet it is neither, for a number of very good reasons.

People who study how the various media affect society and its institutions generally divide communications technologies into two broad categories: those that are one-way, like and radio and television, and those that are two-way like the telephone, mail and the Internet. The first kind have a top-down or authoritarian bias built into them; the second, which involve back-and-forth conversation, have a democratic tilt.

Authoritarian governments have always pushed one-way technologies like radio and TV because it lets them spread the party line without annoying interruptions by citizens asking impertinent questions (although satellite TV, which carries somebody else's party line, is anathema). They have been decidedly uneasy about two-way technology. For instance:

  • In the former Soviet Union at the time of the collapse, per capita television possession was on a par with that of Western Europe. However, there were only a third as many telephones, and hardly anybody had a computer.

  • Nazi Germany set aside huge budgets for domestic radio and film production, and had draconian penalties for anyone caught listening to foreign broadcasts. Foreign films were, of course, banned.

  • China is well served by television, less so by telephone, and fax machines are rare. Scarcer still are computers, and Beijing forbids its citizens access to the Internet.

The authoritarian bias built into broadcast technologies is one of the two main reasons why we regulate them. (The other is the need to dole out scarce space in the electromagnetic spectrum, but that's a separate story.)

It has been recognized by governments everywhere that radio or TV in the "wrong" hands is a dangerous instrument. The kind of regulations Canada and other countries have imposed on radio and TV outlets therefore involve who can own them, and what they can and cannot broadcast.

The two-way media - mail, the telephone, computer networks - pose no inherent threat to democratic institutions. Quite the contrary: they encourage the kind of communication that makes for a social cohesion that is built, not on imposed conformity, but on genuine consensus, freely arrived at.

Broadcast (one-way) media, too, play an important role in nation-building, but the solidarity they promote is of the regimented, conformist variety, in which people are basically interchangeable.

There is another important difference between the one-way and the two-way technologies. In the one, the broadcaster is in charge of content; in the other the user is in control. When you sit down in front of the television, you have to take what's on the schedule. With the telephone, you can initiate contact and steer the conversation; with the Net you can do anything you can do on the telephone, plus a great many other things, such as perusing libraries or art galleries or mixing it up in discussion groups or publishing your own magazine or newsletter.

In other words, with the two-way media, the users are the content, both in the sense that they actually provide information that is available to others, and that they create their own "schedules" by selecting exactly what it is they wish to see and do.

That, at least, is the picture in broad brush strokes and primary colors, as painted by media theorists. It leads to several observations on Françoise Bertrand's itch to regulate the Net:

  • The fact that broadcast media are regulated should in no way suggest that similar regulations are needed for a two-way medium like the Net. It's like comparing apples and oranges, or more accurately, hand grenades and oranges.

  • The notion of regulating Canadian content on the Net makes exactly as much sense as regulating Canadian content on the telephone system. That is, no sense at all. Every time a Canadian picks up a phone (and we do it more often than anybody else in the world), that's Canadian content. Every time a Canadian fires up a modem and hooks up to the Net, that's Canadian content.

    The best and only way to ensure lots of CanCon on the Net is to ensure universal accessibility for Canadians at low cost. Now there's an area where some CRTC involvement might be welcome!

  • The suggestion that Internet service providers (ISPs) or "hosts" be made responsible for pornography or hate material that clients place on their servers is misguided and dangerous. In the first place, the service providers are not the ones who, in Bertrand's word's, "are bringing it to the home."

On the Net, nothing comes to your home without your having actively searched it out and called it up on your computer screen. The Net, in other words, is not a broadcast medium. On the Net, the person who is responsible for bringing nasty content home, is the user.

Because of the dynamic nature of Internet content, it is manifestly impossible for any but the tiniest of service providers or hosts to keep constant tabs on what their clients are putting up on their server sites. To saddle them with this responsibility would be to destroy a flourishing new industry and strangle Internet access in this country.

That, in turn, would of course reduce Canadian content!

Hate mongering and pornography peddling are illegal in this, and most other, developed countries. They are every bit as illegal on the Net as in real life. The difference is that it is a lot easier to track down a child pornographer on the Net than it is in the streets and back alleys of a city, and a lot less expensive.

Even the most sophisticated Net users cannot avoid leaving digital tracks wherever they go, and it is even harder to hide the source of a pornographic image transmitted via the Net or to conceal the location of a racist Web site.

What is needed to control crime on the Net is not new regulations - the Criminal Code is more than adequate - but computer-savvy police and, perhaps, better international police co-operation. Ottawa in general, and not just the CRTC, has been strangely out of touch where the Internet is concerned.

The much-ballyhooed federal Advisory Committee on the Information Highway managed to study the issue at length and file a report last year without realizing that the Internet is the Information Highway. Very little imagination has been shown in the provision of government services on the Net, with a few notable exceptions like Environment Canada and the National Film Board.

The country was better served, it seems, by Ottawa when electrical communication was in its infancy. The government of Prime Minister Sir Wilfrid Laurier passed legislation in 1902 that forced Bell Canada to provide telephone service to anyone who wanted it, "with all reasonable dispatch" and prohibited rate increases without prior government approval. The goal was universal access to a valuable new medium.

A year earlier, Laurier had whisked the young Guglielmo Marconi off a train bound from the Maritimes to New York, and spirited him to his Ottawa office to offer him federal incentives to set up the world's first trans-Atlantic radiotelegraphy station in Cape Breton rather than New England. It worked.

Keith Spicer, Bertrand's predecessor in the CRTC chair, liked to think he could influence developments in communications by stimulating discussion and making provocative proposals. Bertrand might consider taking the same approach.

I offer this modest suggestion for one idea she could try out on the telcos and cablecos of this country. Why not manufacture and lease an Internet appliance analogous to the old Western Electric black bakelite telephones: bullet-proof, relatively cheap and simple to operate?

How about it Ms Bertrand? This issue is not regulation, but access.

© 1997 Wade Rowland

The above article was originally published in the Toronto Star newspaper on January 16, 1997.

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THE AUTHOR

photo of Wade Rowland Wade Rowland is one of Canada's most respected literary journalists. He has worked for the Winnipeg Free Press, the Toronto Telegram and both national Canadian television networks: CBC (Canadian Broadcasting Corporation) and the CTV Television Network. Rowland writes and lectures extensively on the new media, ethical issues, and science and technology.

Rowland is the author of a dozen other books including Spirit of the Web, a popular history of communications technologies that was selected as Required Reading for 1997 by The Globe and Mail. Other recent books by Wade Rowland include "Ockham's Razor", published April 1999 by Key Porter Books, and "Galileo's Mistake: The Archaeology of a Myth" published October 2001 by Thomas Allen Publishers. He lives with his family near Port Hope and is a principal in the Internet-based corporation, Blue Cat Design.

Read bio of Wade Rowland.

Wade Rowland is available for lectures and readings. He can be contacted at the Blue Cat Design offices.

Learn about Wade Rowland's latest book Galileo's Mistake

Buy the quality paperback release of "Spirit of the Web" online. Read an excerpt.

Buy "Ockham's Razor" online at: Chapters/Indigo Bookstores. Read an excerpt.

Buy "Galileo's Mistake" online at: Chapters/Indigo Bookstores. Read an excerpt.


Other articles written by Wade Rowland:



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