Yesterday I wrote about privacy consultations regarding the online tracking of consumers.  Privacy advocates want to ensure that consumer choice and privacy are respected.   Similarly, pressure is put on ISP’s and search engines to limit the amount of information they retain about their customers, and the length of time they retain it.  All laudable objectives.

On the other hand, law enforcement wants to require ISP’s to retain certain information about sites their customers visit for long periods of time to facilitate criminal investigations. See this CNet article for example.

Seems inconsistent to me.

Michael Geist’s article in yesterday’s Star is worth a read. Michael talks about the second thoughts various governments are having to proposals (called the “three strikes” or “graduated response” policy) that would have ISP’s terminate subscribers for repeated file sharing activities.

Michael is absolutely right that such a policy would be a bad idea, for reasons he explains in his article. Those of you who read my Free Press article from yesterday won’t be surprised that I agree with Michael – I took the same position, albeit based on a different fact situation.

The bottom line is that ISP’s and web hosts should not be required to police their users or provide some sort of judicial oversight over user activity.

Read Michael’s column

For the London Free Press – April 21, 2008

Read this on Canoe

A recent court of appeal ruling found that Craigslist — a popular venue which provides an electronic forum for those who want to buy, sell or rent housing or other goods and services — should be treated like an Internet service provider and should not be liable for material posted by third parties.

That decision is sensible, and should be the norm for sites that provide for content added by others. That is similar to the concept that phone companies and Internet service providers should not be liable for their customers’ messages and conversations.

Craigslist came under scrutiny when the Chicago Lawyer’s Committee for Civil Rights sued Craigslist, arguing the Internet classified ads company violated the Fair Housing Act by publishing discriminatory housing posting.

Under American law, section 360(4)(a) of the Fair Housing Act forbids discrimination on account of race, religion, sex, or family status when selling or renting housing. This prohibition is accompanied by a ban on ads that state a preference with respect to any of the protected classes, essentially making it illegal to print or publish any type of notice or ad for the sale or rental of a dwelling that indicates a preference for race, colour, religion, sex, handicap, familial status or national origin.

The Chicago Lawyer’s Committee noted offensive comments in notices for the sale or rental of homes on Craigslist, including comments like “no minorities” or “no children.”

The matter was recently appealed to the U.S. Seventh Circuit Court of Appeal. The key issue in the appeal was whether the site could be liable for allowing customers to post discriminatory housing ads. The lower court decision was upheld. The court found Craigslist should be treated like an Internet service provider and should not be liable for materials posted by third parties.

The judge considered whether Craigslist should hire staff to vet postings, but concluded this would be expensive and futile. Vetting would result in posting delays that defeat the purpose of Craigslist.

Each month, more than 30 million notices are posted to the system. Fewer than 30 people, all based in California, operate the system that offers classifieds in 450 cities. It would be necessary to add staff, indirectly increasing consumer costs, to handle the sort of editorial review the committee demanded.

In addition, whether something is inappropriate or offensive is a judgment call.

One of the ads cited contained the phrase, “Catholic church and beautiful Buddhist temple within one block,” which the committee viewed as a signal of religious preference.

Craigslist viewed it as an objective description of a neighborhood that would help people zero in on properties attractive to them. Craigslist noted it is no more exclusionary than assuming an ad reading “elementary school within five minutes” would indicate a landlord would refuse to rent to childless couples. It is not reasonable to expect such companies to exercise something akin to judicial oversight.

Michael Geist’s latest article in the Toronto Star talks about Roger’s traffic shaping, the unintended problems it creates (it may be causing slowdowns in corporate VPN traffic), and how it fits into the net neutrality debate.

Michael’s blog post also refers to some other views on the subject by Matt Roberts and Mark Evans. All three of those articles are a good read for anyone interested in the net neutrality debate, or how ISP’s control web traffic.

In essence, net neutrality (which I agree with by the way) is the idea that an ISP should not selectively degrade service to give one service provider better service to the user than another, whether that service provider is the ISP itself or someone else.

For example, an ISP should not degrade Vonage or Skype VOIP calls and ensure that the ISP’s own VOIP service gets priority or quality. Or the ISP should not degrade the VOIP traffic of all VOIP providers except the one that pays them for preferential service.

Read Michael’s post and the other articles

Videotron, a Quebec based ISP and cable TV operator, was quoted in newspaper articles yesterday as calling for a tariff on content providers such as Apple and Amazon. Videotron thinks the content providers are getting a free ride.

Michael Geist and Rob Hyndman were both quick to point out why that’s not a good idea. I encourage you to look at their comments.

My perspective is that it would be equally logical for content providers to try to charge Videotron for the priviledge of allowing Videotron customers to access their content. After all, without providers of content and services such as Apple, Amazon, Google, etc., Videotron would not have customers eager to buy their services.

Read Michael’s comments

Read Rob’s comments

We are expecting 2 pieces of federal legislation soon dealing with copyright reform and lawful access. Both will be controversial.

David Fraser has a good comment on the role that private sector service providers should play in the balance between privacy and security – and its not to act as police.

Michael Geist continues with his 30 days of DRM series that deals with copyright reform issues, particularly, what the legislation might say about protecting DRM. He also has a good comment on the questionable thinking contained in an education ministers proposal.

My position on DRM is that is causes more problems than it solves, and defeating it should not be outlawed. Michael has focussed on all the exeptions that shouod be allowed to any provision outlawing defeating DRM. It just reinforces to me that this is getting way too complicated. Far simpler, easier, more certain, and balanced to forget any notion of outlawing tools to defeat DRM, and to expand the definition of fair dealing.

Read David’s comment on service provider roles

Read Michael’s comment on the education minister proposal

Tech memeorandum points to a Federal Trade Commission news release that says the FTC has formed an Internet task force to: “examine issues being raised by converging technologies and regulatory developments, and to educate and inform the enforcement, advocacy and education initiatives of the Commission.” and “to address what is likely the most hotly debated issue in communications, so-called ‘network neutrality”

The FTC favours market forces instead of regulation, which in general is a good idea. The question is whether market forces can actually achieve network neutrality – I’m skeptical.

I’m convinced network neutrality , ie ISP’s not discriminating against traffic from others, especially competitors, is crucial.

Read the Tech memeorandum post

Read the FTC news release

Over the last couple of days there has been a lot of press – both tech and mainstream – about the amended Bell Sympatico user agreement. Language was added about the ability of Sympatico to monitor traffic and report it to the government.

Most commentary speculated that the language was in response to expected draft legislation that would increase the government’s ability to monitor web traffic. Bell denies that.

My first thought was that perhaps Bell made the amendment in order to generate publicity against the pending legislation. After all, ISP’s would rather not deal with it for both philosophical privacy reasons, and the additional costs and headaches it will cause. That would have been an interesting approach to lobby against it.

Even if that was not the intent, it may be the result.

I share David Fraser’s view that at the very least the choice of words was poor.

See David’s Canadian Privacy law blog for a post with more detail about the issue and links to various reports.

Techdirt has a post with a different spin on the Network Neutrality issue. Some telcos have suggested that entitles like Google and Vonage should be paying them over and above normal bandwidth fees, because they are taking advantage of their networks.

Techdirt argues that the Telcos should instead pay Google and Vonage, because those kinds of services cause more people to want broadband. The arguement is backed up by similar deals in the video business.

Read the Techdirt post

David Canton – For the London Free Press – Saturday March 25, 2006

Read this on Canoe

A subscriber to residential high-speed Internet services recently complained to the Privacy Commissioner that his Internet Service Provider (ISP) was reading his outgoing e-mails and declining to send them if they did not go through their own mail server.

The Privacy Commissioner decided the ISP had not breached any privacy obligations. The decision suggested the complainant was a spammer. The real reason behind the complaint may have been the individual did not want the spam he was sending to be blocked by the ISP.

The complainant subscribed to the ISP’s high-speed Internet service. He also subscribed to a web-centred company’s e-mail service, which allows individuals to send and receive e-mail messages from external mail accounts. The complainant was upset because he could not send e-mail without going through his ISP’s mail servers.

The ISP stated it makes its customers use its outgoing mail server because of its anti-spam measures. The complainant alleged by “reading” his outgoing e-mail, the ISP was collecting and using his personal information without consent.

Information travelling over the Internet is sent in packets which are combined at the other end to form the web page, image, e-mail, or whatever other form the information is in. Each packet contains information that is used to send the packets to the right place. One piece of that information is the port number information.

Think of the port number as a highway number.

Port 25 relates to e-mail.

The Internet knows a packet is e-mail if it refers to port 25.

In this instance, when port 25 was identified, the ISP looked at the destination IP address to make sure the e-mail was being routed through its own mail servers.

If that was not the case, it assumed the e-mail was spam and did not send it.

The ISP stated it did not otherwise inspect the content of the packet.

The complainant was trying to route his e-mail through the outside mail server, and believed his ISP did not have the right to know that he was using the other web-centred company as a third-party mail provider.

An important element of the commissioner’s findings was that the ISP’s terms of service — to which the complainant consented when subscribing for service — state the user agrees the ISP can monitor use of the ISP’s internet services, and monitor, review and retain content, material or information if the ISP believes such activity is necessary to provide the ISP’s Internet service to its customers. The ISP can read just about anything sent by users if it decides it is necessary for service.