Last week, CIPPIC testified before the House INDU committee, outlining steps that could be taken to move Canada toward universal adoption of fast and reliable Internet. Substantial provincial and federal resources are being leveraged to connect households across Canada. Yet full and universal Internet adoption is an ambitious goal, one that will require a coordinated national effort and strategic mobilization of cross-cutting resources.

Nor can affordability be overlooked — too many Canadians are priced out of connectivity, even as access to the Internet becomes an increasingly essential pre-requisite to participation in modern life.

In a landmark 2016 decision, the CRTC adopted 50/10 unlimited connectivity as a long term objective for universal home Internet in Canada. As of 2019, however, only 45.6% of rural households have access to broadband Internet (which the CRTC defines as a reliable 50 mbps download and 10 mbps upload connection & unlimited data), and of these close to 60% of these are dependent on less reliable wireless technologies. Particularly troubling, only 35% of first nations reservations have access to broadband.

Given Canada's constitutional and regulatory makeup, no single body can fully control connectivity efforts. However, entrusting either the CRTC or ISED to develop a comprehensive national strategy and adopt a loose but formal coordination role could drive a more integrated approach that substantially increases the efficiency of current funding allocation.

UPDATE: INDU's report in tihs study was issued June 22, 2021: "Affordability and Accessibility of Telecommunications Services in Canada: Encouraging Competition to (Finally) Bridge the Digital Divide", June 2021.

Image source: transCam, "Internet", October 6, 2005, Flickr, CC-BY-NC-ND 2.0

CIPPIC and OpenMedia filed comments calling on the CRTC to adopt robust regulatory measures necessary to reverse Canada's broken mobile ecosystem. Canadian mobile service providers such as Bell and TELUS extract some of the highest revenues in the world, and the correspondingly high retail costs have prevented Canadians from realizing the full potential of mobile connectivity.

As our submissions to this proceeding painstakingly document, Canada's mobile retail costs are prohibitively high by global comparative standards. Canadians pay more per GB of mobile data than almost any other OECD or EU country. The amount of revenues Canadian mobile providers extracts from each customer is also world leading, and this impacts heavily on Canadians, who do not make full use of their mobile devices or are priced out of mobile connectivity altogether. On that front, Canada has fewer mobile subscribers on a per capita basis than the vast majority of OECD countries, and Canadians use barely one half the amount of mobile data as the average OECD country. Canada continues to fall further behind in terms of both adoption and data usage.

These trends have been indicative of the Canadian mobile market for years, and a robust regulatory response is required. In our final comments to this proceeding, we call upon the CRTC to mandate a wholesale regime that would allow Virtual Network Operators (MVNOs) to provide mobile connectivity over incumbent service providers networks. This will allow for an infusion of competition, while ensuring that incumbent providers are well compensated for the use of their networks. CIPPIC and OpenMedia also called on the Commission to mandate affordable mobile plans with at least 4 GB of monthly data.

Image Source: Falcon Photography, "The New Golden Xperia Z5", Flickr, March 15, 2016, CC-BY 2.0

CIPPIC was granted leave to intervene before the Federal Court of Appeal in Teksavvy Solutions Inc v Bell Media Inc, FCA File No A-440-19, an appeal of an order compelling Canada's ISPs to block access to a website accused of copyright infringement. The order under appeal is novel, and if approved will have far-reaching implications for free expression and balanced copyright, creating an extraordinary new censorship power that the applicants have sought in trade negotiations, at parliament, and at the CRTC, without success.

The intervention order itself adopts a thoughtful, but decidedly novel approach in its application of the Federal Court of Appeal's uniquely rigorous test for public interest intervention. As set out in CIPPIC's initial motion to intervene, dated February 3, 2020 (paras 5-12) and affirmed by the case management judge in a brief and pointed direction dated April 24, 2020, the test for intervention requires extensive coordination among different public interest interveners to avoid duplication. In light of the interveners' demonstrably successful efforts to coordinate, the Court took the exceptional step of merging many of the parties, allowing CIPPIC to file a joint intervention with our close colleagues at the Canadian Internet Registration Authority (CIRA). The British Columbia Civil Liberties Association (BCCLA) was also granted leave to elaborate on its detailed proposed submissions regarding the need to account for freedom of expression when issuing orders that interfere with access to expressive content. The intervention order is also innovative for its willingness to depart from a categorical approach to classifying proposed interveners, and instead consider the particular characteristics of specific parties and their historical record of intervention. This allows for a more thoughtful and contextual approach to granting intervener status, while interveners will need to be more cautious in implementing the Court's conditions of intervention or risk developing a negative track record and threatening future interventions. Three other parties seeking to intervene on behalf of intellectual property rights holders were also granted leave to intervene, and merged into a single intervention. CIPPIC is represented by Alyssa Tomkins and James Plotkin of Caza Saikaley, SRL/LLP. UPDATE: On August 3, 2020, CIPPIC and CIRA filed their joint Facta. A hearing has not yet been scheduled in this matter.

Image source: Stanislav Lvovsky, "Censored", Flickr, September 28, 2015, CC-BY-NC-ND 2.0

In partnership with our fellow Samuelson-Glushko Clinic at the University of Colorado, CIPPIC today submitted comments to the Office of the Privacy Commissioner regarding two of its proposals for reforming PIPEDA—Canada's federal private-sector privacy statute—to deal with the challenges posed by artificial intelligence. Our submissions on behalf of 25 privacy scholars from Canada, the United States, and Europe—led by Prof. Margot Kaminski of the University of Colorado and CIPPIC Director Vivek Krishnamurthy—respond to OPC's proposals to amend PIPEDA to “[p]rovide individuals with a right to explanation and increased transparency when they interact with, or are subject to, automated processing” (Proposal 4), and “[r]equire the application of Privacy by Design and Human Rights by Design in all phases of processing, including data collection” (Proposal 5).

Specifically, our submissions suggest that a revised PIPEDA should include:

1. An individual right to an explanation of an algorithmic decision with significant effects on individuals;

2. Legal requirements for the application of Privacy and Human Rights by Design in all phases of data processing;