THE LEGAL GROUP FOR
THE INTERNET IN CANADA

The Legal Group for the Internet in Canada ("LoGIC") is a conduit for the exchange of information and ideas about policies concerning emerging communication and information technologies. We are devoted to ensuring informed public, legislative, and regulatory responses to these technologies, which at present are manifest most profoundly in the Internet. We want to ensure that new laws and regulations have no detrimental effects on the free and interactive communication of information.

New media of communication and information exchange represent the closest realization yet of the utopian marketplace of ideas. Never before have individuals had the ability to express themselves and exchange information to the extent now possible. Technological advance has granted this power to all who desire it. Communication is no longer limited to "personal" and "mass," but now includes those and all things in between.

Governments around the globe are struggling to deal with the questions posed by new technologies. We hope to aid the Canadian government and its legal and regulatory subsidiary bodies to tread confidently down the difficult path ahead.

The Application of Law

The paradox is that it is precisely in the labyrinth of departmental legislation that the citizen, if time permitted, might find the particular order or prohibition which should direct his conduct and which, if it is to be ignored, is ignored at his peril.

Lord Hewart, The New Despotism (1929)

We advocate the use of existing law to regulate activity. To be effective, however, it must be set out with sufficient clarity and certainty to be reasonably capable of being followed by the average person. It is becoming an increasingly difficult challenge to comply with this principle due to the rapid advance of technology. If necessary, we favour amendment of the existing regime over the adoption of new legislation and regulation. Any action, however, must be attempted only after careful and thorough consideration of the nature of the new media for communication and information, and only for specific, well-defined purposes.

Statement of Principles

I. Expression and Communication on the Internet

1. Everyone has the freedom to express and to communicate thought, belief and opinion.

2. Everyone has the freedom to use any reasonable means to prevent his or her receipt of communication or information.

3. Everyone has the freedoms to peacefully assemble, to associate, and to form communities by means of communication.

Discussion

Parliament may want to prevent certain kinds of expression and their communication. If Canadian courts find it impossible to achieve this end by giving a broad interpretation to current law, Parliament may feel compelled to introduce legislation of a more sweeping nature. However, broad legislation will inevitably place the ordinary, well-intentioned person at great risk. Domestic law may conflict with the increasingly global, interactive, and distributed nature of communication and expression. This disparity must be confronted by an avowed determination to maintain universal freedoms of expression and communication.

To maintain simple freedoms of expression and communication in an increasingly complex world, we adopt principle (1). To establish equivalent negative freedoms, we adopt principle (2). To ensure that associated freedoms well-recognized in the real world extend to new media as they become practicable, we adopt principle (3).

II. Privacy and Security

1. Everyone has the right to privacy of personal expression and personal information.

2. Everyone has the right to security of proprietary information and intellectual property.

3. Everyone has the right to protect rights of privacy and security by any reasonable means.

Discussion

We're an information economy. They teach you that in school. What they don't tell you is that it's impossible to move, to live, to operate at any level without leaving traces, bits, seemingly meaningless fragments of personal information. Fragments that can be retrieved, amplified...

William Gibson, Johnny Mnemonic

The author's prophetic statement may have been a verse of fiction at one time, but it is now hard reality. Privacy is an increasingly important, yet increasingly vulnerable, right. Technological advances have led to this state of affairs, but they also allow for powerful methods of privacy protection.

The same is true of the security of proprietary information and intellectual property of both individuals and business organizations. This case, however, is becoming increasingly complex as emerging technologies of communication and information constitute ever stronger challenges to traditional notions of "ownership" of information.

As a general principle, we propose that the privacy and security of communication and information be guaranteed, as set out in principle (1) and principle (2). Further, to allow for proper protection of such data, means such as encryption, firewalling, or other mechanisms shall be permitted as of right, as set out in principle (3).

III. Users and Providers of Services

1. Users of information services and communication services shall have the freedom to become providers of services without undue difficulty.

2. Basic information and communication services should be accessible universally with a minimum of government involvement.

Discussion

Competition is the most effective means of ensuring a high level of service at low cost. It also ensures that the technology in which fundamental rights are grounded is not subject to monopoly control. Principle (1) seeks to ensure that vibrant competition is maintained.

Universal service is a lofty goal that must be pursued if the benefits of the marketplace of ideas is to be realized by the average person. It is acknowledged that the goal may be hard to define and harder still to achieve, but its pursuit must be undertaken, nonetheless. Principle (2) establishes our support for the provision of universal service.