Canadian Internet Service Providers As Instruments of Public Policy
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Intermediation and Governance of Digital Flows: Canadian Internet Service Providers as Instruments of Public Policy by Michael Zajko A thesis submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy Department of Sociology University of Alberta © Michael Zajko, 2018 Abstract The internet has often had a disintermediating effect, 'disrupting' and circumventing traditional middlemen and gatekeepers. This dissertation examines the related trend of intermediation, or the ascendance of new internet intermediaries and their growing significance in our lives. Among these institutions, Internet Service Providers (ISPs) occupy a fundamental position in the internet's topography as operators of material infrastructure, rooted in territories where multiple government agencies exercise regulatory control. As a result, ISPs have become ideal and idealized instruments of governance for the twenty-first century. They are seen as the means through which all of the various dreams associated with connectivity can be achieved. ISPs act as agents of economic and social development, as well as instruments of regulatory capitalism: where 'market forces' fail to produce desired outcomes, ISPs can be steered into desirable conduct through regulatory regimes. As intermediaries become increasingly capable and vital stewards of society's data flows, they are subject to growing expectations on their conduct. Drawing on theories of governmentality and nodal governance, I argue that ISPs are accumulating new roles and responsibilities as sites of governance, but these roles can also contradict one another, resulting in persistent forms of role conflict. These include conflicts over ISPs' roles and responsibilities in aiding policing and surveillance, cyber security, copyright enforcement, and privacy protection. They also involve continuous regulatory struggles about the responsibilities that different classes of ISPs have to one another, efforts to mold the Canadian government's vision of a 'competitive' telecom industry into existence, and the persistent challenge of extending broadband connectivity beyond Canada's urban centers. Drawing on telecom industry/policy presentations, expert interviews, and documents, I show how intermediaries navigate these conflicts individually or collaboratively, choosing a path through competing expectations, serving as policy instruments as well as agents of governance. ii Preface This thesis is an original work by Mike Zajko. The research project, of which this thesis is a part, received research ethics approval from the University of Alberta Research Ethics Board, Project Name: “Internet Intermediaries and the Governance of Digital Flows” (Pro00033715) on September 21, 2012. iii Acknowledgements This research received support from a variety of sources, the most fundamental of which has been my family, who helped me to complete this endeavor through their love and understanding. Staff and faculty at the University of Alberta’s Department of Sociology have also been crucial, principally Dr. Kevin Haggerty, whose willingness to back me wherever my interests led gave me the freedom to explore an inspiring topic, and whose mentorship helped me navigate key junctures and dilemmas. Members of my candidacy and examining committees (especially Dr. Harvey Krahn and Dr. Geoffrey Rockwell) provided valuable feedback, and in what can sometimes feel like a lonely road, fellow graduate students from the department helped sustain me through their collegiality, kindness, and humor. I thank all of the individuals who contributed their time and expertise to this project, either as interview participants, informal contacts, or discussion partners. Some of these interactions were made possible by the various events and conferences where the people responsible for the internet meet one another. I’m grateful to all those who organize such events to facilitate telecom infrastructure’s social dimensions, and to those professionals who help inform public understanding of their world, which might otherwise be hidden from view. Finally, I would like to acknowledge the Social Sciences and Humanities Research Council of Canada (SSHRC) for funding this study, in addition to funding from the University of Alberta and its Department of Sociology. iv Contents Introduction 1 Outline of the dissertation 4 Defining internet 8 The simplified web 15 When magic fails 17 The changing internet 19 ISPs as instruments of governance 22 Theoretical background 24 Individual and collective actors 28 Looking across institutions 35 Method 36 Empirical sources and methods 38 Who are the actors?: Intermediaries 42 Who are the actors?: Government institutions 44 Setting the scene for the current milieu 46 Chapter 1: The history and political economy of Canadian intermediaries 47 Telephony and monopoly 48 The gradual breakdown of system integrity and natural monopoly 54 Regulatory liberalization 60 Liberalization and neoliberalism 64 Regulatory capitalism and the economization of connectivity 66 v ISPs in Canada today: Network topography and political economy 68 Chapter 2: The public pursuit of connectivity 74 Pursuing connectivity 75 Connectivity as a public good 79 Publicly-funded networks for research, education and 83 entrepreneurial innovation Bridging the digital divide: ISPs as instruments of equitable connectivity 87 FreeNets: Distributing connectivity as a public good 88 The public good of private infrastructure 93 Publicly-funded regional and provincial networks: Connectivity 94 beyond the urban core The case of the SuperNet: Profiting from policy 98 Municipal networks 104 Wiring the Town of Olds 105 Models for municipal broadband across Canada 110 The challenge of public connectivity 115 Chapter 3: Chasing Competition 119 The idea of competition 121 Who competes? 125 Facilities-based competition 128 Mandating wholesale 133 Competitive dependency 137 Accounting for the mandated access regime 145 vi The middle course and the triumph of the giant firm 146 Telecom populism 149 Shifting the goalposts: The middle mile as the middle road 151 The limits of competition 153 Chapter 4: Privacy Custodians 157 Pre-internet intermediaries as privacy custodians 163 Invisible handshakes and internet surveillance 168 Privacy & piracy 170 PIPEDA, lawful access, and exceptions to privacy protection 174 Lawful access and role conflict 180 Redefining privacy custodians through positive responsibilities: 183 Resisting in court, educating the public, and transparency reporting The future of privacy custodians 186 The changing roles of privacy custodians 189 Chapter 5: Internet service providers as security partners 193 Lawful access: Interception and disclosure responsibilities 197 Government-industry collaboration on lawful access 202 Forging consistency among privacy custodians 203 Standardization through jurisprudence 206 The rise of cyber security 209 Intermediaries as gatekeepers: From child pornography and 214 spam to cyber security Governing cyber security in Canada 216 vii Standardizing network hygiene 222 ISPs as providers of cyber security 225 Cyber security and privacy 227 Smart pipes, dumb pipes, and net neutrality 228 State partners, security providers, and the struggle for standards 231 Conclusion 234 (Dis)intermediation 237 Addressing intermediation 241 Diversity, consolidation and concentration of power 243 Alternative intermediaries 244 Looking to the Future 248 References 250 viii List of Abbreviations BRC – Board of Railway Commissioners CACP – Canadian Association of Chiefs of Police CATV – cable television (originally Community Antenna Television) CBCA – Connecting British Columbia Agreement CCAICE – Canadian Coalition Against Internet Child Exploitation CCIRC – Canadian Cyber Incident Response Centre CDN – Content Delivery Network CNOC – Canadian Network Operators Consortium CRTC – Canadian Radio-television and Telecommunications Commission CSE/CSEC – Communications Security Establishment CSTAC – Canadian Security Telecommunications Advisory Committee CTC – Canadian Transport Commission CTCP – Canadian Telecommunications Cyber Protection Working Group CWTA – Canadian Wireless Telecommunications Association ICANN – Internet Corporation for Assigned Names and Numbers ICT – Information and communications technology IETF – Internet Engineering Task Force IISP – (In)dependent Service Provider ISP – Internet Service Provider ISED – Innovation, Science and Economic Development Canada (formerly Industry Canada) ITAC – Information Technology Association of Canada IXP – Internet Exchange Point NCECC – RCMP National Child Exploitation Coordination Centre OPC – Office of the Privacy Commissioner of Canada OSP – Online Service Provider REN – Research and Education Network ix List of Figures Figure 1 – Dimensions of the Internet: Material to Abstract 10 Figure 2 – Competitive Dependency 139 Figure 3 – CCIRC/CTCP Relationships and Role when Responding to a “Cyber Event” 218 Figure 4 – CTCP's Collaborative Relationships 220 x Introduction The starting point of this dissertation is a simple sociological observation: more and more of our interactions with each other and the world around us occur through an intermediary. These are the hidden parties embedded in the middle of our social relationships, and they do far more than act as messengers or relays. There are two understandings of an intermediary that are relevant here. The first points to whatever (or whomever) sits between the two or more parties involved in a communication. The