Timothy M. Denton

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Canada's war on permissionless innovation

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The Basic Question

Is there something in the Internet which should inform our approach and constrain the application of broadcasting concepts to it?  I think there is: permissionless innovation. 

 

 Dramatic Detail Of The Chained Hands Of An Adult Man With A Strong Chain  And Padlock Stock Photo, Picture And Royalty Free Image. Image 20162076.

  I am going to divide what I say into three themes.

  • What is the Internet?
  • Permitted or licensed versus Permissionless Speech
  • Expanding the scope of licensed speech

 

What do I mean by “the Internet”

I would say that the Internet has proven to be a kind of Esperanto for machines, permitting them to communicate with each other despite different internal operating systems.

The Internet accomplished this by what engineers envision as a layered architecture of machine languages, called protocols.

The core protocols of the Internet separated what we now call the applications from the transport layers below them. This was its most significant innovation.

Three effects have flowed from this separation of application from transport.

1.     First, what in the broadcasting universe is called programing – the kind of stuff we watch as TV - became an “application”.

Television programming is one of hundreds of applications available on the Internet. YouTube, WhatsApp, zoom, Tik-tok, you name them, all vie for the consumer’s attention, with the result that “television programming” as it has been traditionally understood has encountered unlicensed competition from a myriad of sources, including programming services like Netflix, Amazon Prime and Crave TV.

2.     The second effect was that all previous industrial divisions predicated on the single purpose nature of analog technology were abolished. The Internet accelerated the process whereby cable and telephone industries found themselves in somewhat the same business, that being transport of bits across transmission architectures. [They would resist this description but that is what they do in essence].

 

3.     The third effect is that the Internet, by allowing applications to float across the logical layer, dissociated the costs of applications from the costs of transport.

Think of the number of teleconferencing technologies you have used in the past few years. All of them were launched without needing permission from the transport networks. This kind of innovation had been impossible in the pre-Internet era.

Hence the expression grew up that the Internet was a source of “permissionless innovation”.

What we have witnessed in Canada, from both the telecom and the broadcasting sectors, is a full- scale war on permissionless innovation.

In telecoms the battle is fought under the banner of “facilities-based competition” which is a code for the idea that the only legitimate competition is that which uses billions of dollars’ worth of investment. Forget the software, think hardware.  

In broadcasting the battle is fought by declaring the large programming suppliers are both within Canadian jurisdiction and that they are “broadcasters” and ought to be regulated to level the playing field.

 Permissionless versus Permitted Speech

Another basic feature is that the print or speech regime involves liabilities post facto, whereas broadcasting involves speech by permission of the state. Insofar as speech or writing has been concerned, the Internet has been in the print regime, that of permissionless speech. Now Canada seems to want to drag the Internet into speech by permission only.

This situation we are now in was long ago predicted. In 1983 the American scholar, Ithiel de Sola Pool, published a book called The Technologies of Freedom. His observation was that there were two systems governing communications. One was printing. It was characterized by freedom, which had been won over centuries in the course of European and American revolutions. Liabilities for one’s writing were after the fact. One did not need prior permission of the state to publish.

The second system had its origin in the 20th century. It featured a comprehensive scheme of government control. It was called broadcasting. In the process he called “convergence” – de Sola Pool coined the term - technologies were seen to be melding under the influence of computers, and the issue that would arise was whether the legal regime of permissionless speech would prevail against the 20th century innovation called “broadcasting”, where speech was heavily regulated.

As predictions go, de Sola Pool was right about a large issue.

The basic feature of broadcasting is that one speaks with permission from the government. To hold a broadcasting licence is to hold a public trust. The limitations of broadcasting technology in the 1930s meant that there were few speakers and many listeners. The rationale for this degree of government control was the limitation imposed by the propagation characteristics of “broadcasting” understood as a technical system of signals generation, transmission and reception.

Today in Canada the system called broadcasting has escaped any significant relationship to the conditions of scarcity that justified the earlier scheme of tight governmental control.

 

By extracting the regulatory scheme called broadcasting from any constraint of technology, Canada has succeeded in greatly expanding the range of governmental control over speech. It has never even asked itselfwhether this is the right course of action to take.

Some will argue that this is exactly as it should be.

The Internet’s purpose is to carry the cultural bits to the viewer as government and broadcasting policy makers shall direct. In brief, there is nothing about the Internet that requires any change of thought or of law in the ongoing preservation of the protected and regulated national broadcasting system. That view is triumphant, for the moment, and it is fully expressed in C10.

 

Nor for that matter has there been a significant public discussion of this issue, leaving aside writers like Peter Menzies or those of us at the Internet Society. Whether the scheme of regulation called broadcasting should spread to the Internet, to computer networks generally, has not, so far as I can see, ever been placed squarely before Canadian society. At every step, a very small set of policy makers in government or the courts have taken incremental steps to expand the legal scheme called “broadcasting” (by which I mean state-regulated communication) until it now detached from any technical conception whatever,

Thus the regime of regulated speech has grown exponentially, as C10 attests. In fact so vast has the scheme of regulated speech become, in principle, that the Act has had to dial back its own application in several important respects. It is as if even the most ardent supporters of broadcasting realized the absurdity that not everything in video should be subject to government licensing and regulation.

Or have they?

 

Expanding the scope of regulated speech

 

The 1991 Broadcasting Act expanded the definition of “broadcasting” to include any means of telecommunication, detaching it from reliance on radio waves.

·       Section 2(1) says in part

“broadcasting means any transmission of programs, whether or not encrypted, by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus, but does not include any such transmission of programs that is made solely for performance or display in a public place;”

Bill C10 has expanded the notion of broadcasting even further.   Its definition of broadcasting reads:

“broadcasting means any transmission of programs — regardless of whether the transmission is scheduled or on demand or whether the programs are encrypted or not — by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus, but does not include any such transmission of programs that is made solely for performance or display in a public place; (radiodiffusion)”

In the case of C10, broadcasting-the-legal-regime has escaped the need for being delivered by broadcasting – the technical system, for being scheduled, or for being unencrypted.

 

So vast has the expansion of state control become that the authors of C10 have felt the need to affirm the citizen’s right to communicate across the Internet without a licence, in two ways at least.

The first exception was for those using social media. They are not engaging in broadcasting, though the platforms they use are to be so regulated by C10 and the proposals for C36 that this is a distinction without much difference.

The second is for people communicating “programs” across the Internet which are ancillary to a business not primarily engaged in the transmission of programs and is intended to provide information or services to clients.

It should be noted as well that “programs” is a term denoting full motion audio-visual materials. While all television entertainment is legitimately a “program”, not all full motion video is properly the subject of a scheme of prior government permission. At least in my opinion, but not the government’s.

 

 To conclude

The Broadcasting Act as it has evolved, and the system of legally privileged entities it has created, has resulted in a structure that needs reform. This reform ought to adapt the cultural policy known as broadcasting to the realities of the Internet and the consumer reaction to those possibilities.  This reform has been avoided by a sequence of legislative actions and proposed policies. First was certain definitional changes in the 1991 Act, when the Internet was only dimly perceived as a possibility. But by 2020, the when the Yale Report’s proposals were formulated, a more adaptive evolutionary stance ought to have been considered and was not.

After all, why mess with a good thing? Expanding the extent of government regulation of speech and writing (by which I include video) will always be popular in the circles whose revenues derive from the regulated system. As for the rest of us who dwell outside the regulated universe, why should anyone inside the charmed circle care for our interests or concerns?

 

 

(Address to the PIAC conference November 3, 2021)

 

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Timothy Denton is a lawyer by training who practices principally in telecommunications and Internet policy and domain name issues, with a strong concentration on explaining what the technology is and what it means.

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Guest Friday, 26 November 2021
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