WHO COULD BLAME CANADIAN lawyer Richard Warman for taking a shot with the CRTC last week? What would you do if someone used the web to threaten to kill you, or urge others to do it? Use as many tools as might be at your disposal to protect yourself, I should think.
As you may have read in a number of media reports over the past few days, an Virginia man, Bill White, has called for the Ottawa man’s death (and the death of all Jews, for that matter) and even posted his home address, too, in case someone wanted to follow through with the threat. Parts of the sites called for the overthrow of the Canadian government, as well. According to the CRTC application filed by Warman, White is described as a "neo-Nazi" who often advocates violence.
Warman is a well-known human rights lawyer and pursuer of those he feels are guilty of hate speech in Canada and beyond.
While Google, according to an Ottawa Citizen report, has eliminated the offensive content from one of the sites which was hosted by an arm of the giant web company, Warman wants more.
With the help of the Canadian Jewish Congress and telecom analyst and consultant Mark Goldberg, Warman petitioned the CRTC last week to allow ISPs block the offensive sites. He wasn’t looking for an order, as most media outlets reported, but instead for a Commission decision under Section 36 of the Telecom Act that would have allowed ISPs – at least the cable and telco ones which are regulated – to go ahead and block the sites, if they wished. The legislation makes it clear they aren’t allowed to do that.
Citing proper procedure (like notifying said ISPs and letting them respond), the CRTC turned him down.
But this is barely the beginning of this issue. Despite ISPs’ focus on being the pipe that delivers content to customers, cable companies, telcos and all other ISPs have to face up to the fact that what’s in that pipe is often illegal sewage that needs to be blocked or expelled – even used to track down and arrest those sending it.
While Warman waits for U.S. law enforcement to act on the death threat, Goldberg, pictured, (co founder of the Canadian Telecom Summit) discussed the application and the fight against hate on the Internet with Cartt.ca editor and publisher Greg O’Brien. What follows is an edited transcript.
Greg O’Brien: What were you and Mr. Warman trying to accomplish with this filing with the Commission?
Mark Goldberg: Well, to be honest, for a couple years now, I’ve been studying the issue of illegal content over the Internet. I was interviewed for a Decima report on media’s future after the Al-Jazeera decision because I had been involved, again, on a pro bono basis with Canadian Jewish Congress on that particular file and had come up with the solution that the CRTC ended up adopting.
That was to basically hold those that are making money from the content responsible – and in the wake of that successful decision, I kind of mused in the context of an interview that it might set a precedent for how to deal with illegal content on the Internet and got flamed by various folks in the industry.
But that wasn’t sufficient to deter me and I have continued to work with the community relations committee of the Canadian Jewish Congress in examining ways to deal with this issue.
GOB: That was a controversial decision too because it made Al-Jazeera legal, but effectively not because none of the operators are willing to put their resources behind doing what they need to do in order to show Al-Jazeera here in Canada (24/7 monitoring for potential offensive content).
MG: Well, they claim that they don’t have the means to do it, although it’s interesting, about a month after the Al-Jazeera decision came out, I was on a tour of the Bell ExpressVu facility (in North Toronto) and they were showing the control room they had set up for NHL Centre Ice.
There, ExpressVu could pull in all of those local games throughout the U.S., but when they’re showing a Phoenix game and the local Ford dealer puts on its commercial to buy a Ford F150… that some students from McMaster push a button, and it inserts the Canadian commercial. That was the deal they had, on a 10-second delay.
I took a look at that control room, and I commented at that point; boy, that looks like the "Al-Jazeera" control room, but instead of hiring McMaster engineering students, you hire university law students, who could speak Arabic, and you tell them to watch for certain types of phrases; push the button and go to blue screen. You’ve got the capability; you’ve got the technology; you’ve got the control room. All you have to do is take a few bucks out of the subscriber fee, and you can do it.
GOB: But that moves into my next question with this issue where we start talking about of putting the carriers, the ISPs, into the role of censors.
MG: Well, no. This is one of the places where there is a difference. But first off, the CRTC already made it a determination in the Al-Jazeera file; that the broadcast carriers are responsible. Frankly, that’s something they’re used to.
They make those kinds of determinations all the time. It’s just real time risk management, which is what their legal department does. They assess their ads as they’re going out. Every single one of Canada’s broadcast distributors is also a broadcaster, and they’ve got live TV programming. They make those same kinds of decisions.
When there’s a call-in show, there’s somebody who pushes a button if I start to go a little bit crazy as a caller. Right? So that’s not new, and it’s something they’re equipped to do, and know how to do.
That wasn’t anything that we were asking in this particular incident. We provided a court-certified witness, who provided testimony to the CRTC that the particular content that we were looking at would most likely, in his professional opinion, was clearly contravening the hate crime sections of the criminal code.
We provided the direct quote, which just the plain language makes it very clear that the death threat contravened Canada’s laws, and is not protected speech. Even in the United States a specific death warrant is not protected speech.
In this application, we weren’t asking the ISPs to make that call nor do we think the long-term solution for this problem, is that ISPs should be put into that role because, frankly, it’s just not a winnable role for them.
We were looking for ISPs to have the authority to block (certain web sites). Section 36 (of the Telecom Act, under which data communications like web browsing falls)… in plain language, tells ISPs: Don’t touch the content unless you’ve been authorized in advance by the CRTC. You can’t influence, control or act on the content of the transmission without the consent of the Commission.
Our whole view was, from the outset, that the Commission has operated with this principle of technological neutrality. If you take a look at their decisions – and one of the things that has made Commission decisions as relevant today as they were 20 years ago… is that you can read technological neutrality to regulate services rather than specific technology.
GOB: That’s become one of the hallmarks of the Commission. They’re always talking about technological neutrality, as are the companies it regulates.
MG: So why is it if we have technological neutrality that it’s illegal for me to phone you and say you should be killed? Or it’s illegal for me to go on the radio, illegal for me to go on to the TV. In any one of those cases, the Commission would act or would authorize the carrier to act, and yet that same transmission over Internet appears to be protected.
GOB: Well, and their dismissal of your application, though, was more of a procedural thing, wasn’t it and not a judgment of your case?
MG: Exactly. Notwithstanding some of the comments that are coming in on blogs from some people where, clearly, there’s an organized campaign. Interestingly, there’s a guy who’s been writing comments on his blog and linking back to me, who, at least proclaims to be a lawyer at one of the major carriers, who claims that this procedure is a fundamental principle of justice; that the accused gets to have his time in court. But, clearly, the Commission did not, in their decision, even mention the facts of the case. They stayed strictly with the procedural aspects; that, first of all, they would think that, normally, an application under Section 36 would come from one of the carriers.
I find it fascinating that they say normally, given that nobody has ever filed under Section 36 before.
So that’s an interesting indication, and then they said, at the very least, they would expect that we would serve (documents on) all of the affected carriers. Not one time did they suggest that we needed to serve this neo-Nazi in Virginia. His backers are saying; "you see, you needed to give us a chance to defend ourselves."
That’s not what the Commission is saying. The Commission’s saying; look, we were seeking an order that would, at least, impact the carriers and you have to give the carriers a chance. We filed on an ex-parte basis, in part, because we wanted to deal with it on a very expedited basis, as there was a guy’s life being threatened.
GOB: Still being threatened, right?
MG: Still being threatened, and, in fact, there were protests organized outside his home through the past weekend.
We actually did not ask the Commission for an order, ordering of the blocking of the site. We simply asked them, in the case of these two sites, to remove the obligation of carriers to carry them. Now, interestingly, ISPs that aren’t carriers aren’t bound by Section 36. It applies only to carriers.
GOB: So just cable and telecom. Have you gone to Rogers, Bell, Telus, any of those and said; "hey, do you mind blocking these for us?"
MG: We’ve had conversations with most of them and I can tell you that one of the majors said just get that Commission ruling, and it will be blocked. They have their technology folks ready.
GOB: There are other hateful sites, too. I don’t know if you put it in the same class as child pornography but there are sites that once the ISPs know, they block them immediately.
MG: There’s a substantial difference with child abuse images. Simple possession, even viewing, of those sites is an offense under the criminal code.
So it’s a little bit different in the handling and the approach. Still one of the key issues is a determination of what is illegal content. As you know, at this past year’s Telecom Summit, we had a session on a Monday afternoon, looking at the issue of illegal content.
GOB: And even in that, there were some suggestions that the ISPs should police this kind of thing.
MG: I’m not sure that people are looking for the ISPs to identify the sites. I think the ultimate resolution will be that we need for ISPs to, first of all, acknowledge that there is an issue; that there is such a thing as illegal content, notwithstanding the fact that there are those who say that if people want to work their way around a block, they can.
Frankly, if people want to use illicit drugs, they’ll find a way around whatever impediments we put in their way, but that doesn’t mean you shouldn’t have deterrents, and I think that for the large majority of Canadians, if there are blocks put on by their home ISP… they simply don’t know how to (get around it).
… The idea isn’t to protect me and you from this content. Presumably, people with a rational background can handle certain content.
(But) we, as a country, have declared certain hate material to be illegal. We have Sections 318 and 319 of the criminal code. The U.S. doesn’t. So if Canada has a view of sovereignty over the enforcement of its way of life and our own laws, then we need to examine what kinds of solutions are available that extend this from simply being a customer premises-based solution that we take on voluntarily.
That’s like saying; "well, gee, it’s okay for us to broadcast whatever we want, and if people find that hateful speech to be offensive, just turn off the TV." No, that doesn’t change the fact that they violated Canadian law by broadcasting hateful speech, a contravention of those two sections of the criminal code.
So just what caused us to put this issue at the forefront is the general view that the Internet should not be creating this digital exemption to Canadian criminal law and that we, as a country, need to start talking about the issue and exploring the appropriate solution
I think, ultimately, that needs two different channels of research.
One is a technological research stream. Let’s examine what kinds of technologies we can bring to bear, perhaps extending the British Telecom Cleanfeed project, importing that kind of technology into Canadian networks; that once we’ve identified an inventory of content that’s determined to be blockable, or should be blocked, how do you actually implement it? That’s a technology stream.
The other side is really the legal policy stream. What is the appropriate body and under what legislation does that body operate that can make appropriate determinations of content that should be blocked?
GOB: Another independent body, an arm of the CRTC or..?
MG: I wouldn’t want to pre-judge where it belongs. If we’re looking at hate content, perhaps it’s an arm of the Canadian Human Rights Commission.
If it’s child exploitation images, again, that could be a very different branch. But that needs to be a body that has appropriate mechanisms to respond to complaints from people, investigate, make a determination, have courses or avenues of appeal for people whose content might have been blocked.
GOB: It kind of sounds like the Canadian Broadcast Standards Council is what you’re looking for, for the web.
MG: I’m not familiar with that particular group.
GOB: Well, it’s broadcaster funded – an independent agency governed by the broadcasters own code of ethics; you know, for hate speech and exploitation and all of that sort of stuff. It hand out the punishment and lets broadcasters know whether they’ve violated this or that..
MG: One of the questions is should this be industry-funded, should it be government-funded, should that be more a judicial versus an industry group? I think we need to start to explore those kinds of issues so then a group can, in effect, have a database, and carriers and ISPs may choose to subscribe to that database in exchange for what may be an absolution from any liability associated with illegal content.
So, for example, if a carrier says, "I’m going to subscribe to and implement the clean feed database that comes from these two agencies, hypothetically, then any complaints that people have, saying; hey, I tried to get this content that my friend in Phoenix told me about, and it’s being blocked; then the ISP can shrug its shoulders and say; oh, well, that’s on this database. You have a complaint? Don’t complain to me. Complain to, you know, (this new) agency.
Or, alternatively, if somebody is feeling like that carrier should be blocking a site, they can say you’re coming to the wrong place. We simply implement the clean feed database. This is the phone number to call. And give them strictly the responsibility to implement this database, and in exchange for them implementing it, they have Teflon, and are completely absolved from any responsibility, both legal and from a customer relations perspective.
That quite likely has value to them.
GOB: Now, and this is something that has to be driven by the federal government, or driven from the industry towards the federal government?
MG: I think what we need is a real co-operative approach on all of this. The industry has to buy into it. We need for various agencies of the government to buy into it. Canada’s a signatory on a number of international protocols, both on child exploitation and hate on the Internet.
Both are international protocols that Canada has signed on to… and that likely is an inter-ministerial set of activities. I would suspect that we’d have justice; we’d have Industry Canada, likely Heritage, given its role in broadcasting and so on. Certainly, the industry needs to be there. I think there’s a number of academics, and there’s a number of civil liberties groups that have viewpoints that are worth hearing.
But the key point here is that at least the discussion is now in front of folks, and hopefully, we’ll be able to keep the momentum behind us.
GOB: So what are the next steps for you and Mr. Warman?
MG: Number one for Mr. Warman is to keep himself safe, and we’re certainly exercising every lever of justice that is available on both sides of the border, and we are continuing to pursue those channels.
GOB: Are the U.S. Police doing anything?
MG: I cannot comment, other than to say that the U.S. Police are actively involved. Law enforcement on both sides of the border are involved in the case.
GOB: But as far as you taking another shot at the regulator, will that happen?
MG: You could certainly say that we’re looking at the options.
