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17 May, 2021

Internet Society Response to ISED Consultation on a Modern Copyright Framework for Online Intermediaries

The Internet SocietyFootnote 1 welcomes the opportunity to comment on the Innovation, Science and Economic Development Canada's (ISED) consultation on a modern copyright framework for online intermediariesFootnote 2. The Internet Society supports and promotes the development of the Internet as a global technical infrastructure, a resource to enrich people's lives, and a force for good in society. As such, we are committed to designing and promoting models of user safety which preserve individual rights and privacy, as well as the essential nature of the Internet as a network. We work with telecommunications service providers, technology companies, consumers, communities and governments at all levels across the world to advance this mission.

While we understand ISED's motivation for copyright reform, we are concerned with section 4.4 of its proposal – Establish a Statutory Basis and Procedure for Injunctions Against Intermediaries. As we wrote in a recent op-edFootnote 3, Canada has long served as a model for how to craft sound policies for complex issues. However, its consideration of policies like this proposal that abandon the principles of an open Internet – principles that Canada has long championed at a global stage – are concerning. The following comments specifically address ISED's recommendations on website-blocking and de-indexing, as we believe they would do significantly more harm to the global Internet and Canadian users than it would do good and should not be considered an appropriate means of reform.

The importance of removing website blocking and de-indexing as a proposed reform

In this consultation, ISED proposes:

"The Act could be amended to provide expressly for injunctions against intermediaries to prevent or stop online copyright infringement facilitated by their services even where they are not themselves liable for it, such as where they may be protected by the safe harbours. These injunctions could be available through a court process to ensure the highest standards of procedural fairness. The specific relief possible through such injunctions could include orders to disable access to infringing content (e.g., "website- blocking" or "de-indexing" orders), remove such content (e.g., "takedown" orders), otherwise prevent or stop infringing activity (e.g., "stay-down" orders) or limit, suspend or terminate access to an intermediary's service."

This is a slippery slope for Canada to pursue and could result in significant harm to the Internet and its users. Website blocking and de-indexing are generic descriptions for a process where an Internet Service Provider (ISP) may open and examine a user's data packets or data headers to determine if the user is requesting a Domain Name Service (DNS) resolution for a site that has been deemed to be inappropriate or illegal in a particular jurisdiction. If so, the ISP blocks, redirects or otherwise disables such a request for resolution of the domain name. This process is properly referred to as DNS filtering or blocking. The user is then unable to obtain a numerical address for the site and therefore cannot communicate with the given site.

It is disconcerting that while ISED's proposal outlines considerations for reform, the proposal is short on crucial details as to how website blocking and de-indexing will actually be carried out. Of particular concern to the Internet Society is the process ISPs will use to block Canadians' access to sites deemed offensive. This is not a detail to be worked out at a later date; it is crucial to understand up front as history has shown that the preferred method for doing so – blocking, redirecting or disabling access to websites – can negatively impact the security and stability of the Internet, can infringe on the privacy of end users, can curtail legitimate speech, and may inadvertently block legitimate websites in their entirety.

In many countries and regions where attempts have been made to block piracy sites, blocking online content has resulted in a storm of protests from experts and the general public as it can fundamentally break the Internet as we know it today.Footnote 4 In the long run, it has also proven to be an expensiveFootnote 5 and ineffectiveFootnote 6 course of action. Therefore, the Internet Society wishes to ensure ISED has a thorough understanding of the effects (and side effects) in its consideration of the proposal.

To this end, we respectfully submit the attached brief, Perspectives on Content Blocking: An Overview, published by the Internet Society in March 2015. In this brief, we outline the various techniques employed to block content online and evaluate each technique in terms of both its effectiveness and potential negative impacts on the Internet, Internet security and end user privacy. Our assessment identifies two main drawbacks common to all blocking techniques:

"They do not solve the problem. Blocking techniques do not remove content from the Internet, nor do they stop the illegal activity or prosecute culprits; they simply put a curtain in front of the content. The underlying content remains in place.

They inflict collateral damage. Every blocking technique suffers from over-blocking and under-blocking: blocking more than is intended and, at the same time, less than intended. They also cause other damage to the Internet by putting users at risk (as they attempt to evade blocks), reducing transparency and trust in the Internet, driving services underground, and intruding on user privacy. These are costs that must be considered at the same time that blocking is discussed."Footnote 7

More specifically, DNS is one of the fundamental protocols on which overall global Internet functionality is built. DNS filtering (like website blocking or de-indexing) causes instability, encourages fragmentation, and erodes the foundation of the Internet.

  • Unilateral modification of DNS behavior carries high security risks. DNS filtering is incompatible with DNSSECFootnote 8 and encourages the creation of alternative, non-standard DNS systems. These alternative systems reduce global Internet security and put individual users at risk. Because almost every system and service in the Internet depends on DNS, filtering will affect more users than are intended. What is filtered in Pakistan may affect users in Panama. Filtering creates a highly fragmented, country-by-country Internet rather than one global network. Filtering the global DNS has risks to users and will decrease global security.
  • Filtering DNS does not solve the problem. Changing the DNS doesn't remove the objectionable or illegal content from the Internet; it makes it simply harder to get to. Users who are determined to download this type of material will still be able to do so. If DNS filtering is used in many countries, then users will also set up "shadow" Internet structures to avoid filtering, making it more difficult for law enforcement to observe and intervene. Policy makers should focus on the most effective ways to solve the problem.
  • Filtering DNS causes significant collateral damage. We have abundant anecdotal evidence that DNS filtering will affect users and content providers engaging in completely legal activities. For example, in February 2011, U.S. authorities blocked the domain "mooo.com," because some child pornography was found on a sub-domain. The blockage also affected over 80,000 other legal web sites set up as sub-domains of mooo.com. In some cases, collateral damage can be minimized by very careful technical implementation, but it can never be eliminated. The cost of DNS filtering outweighs possible short-term benefits.
  • DNS filtering has non-technical implications. The fundamental issue is non- technical: how to keep illegal content off of the Internet. Solving this non-technical problem with technology, such as DNS filtering, raises privacy and public policy issues. DNS filtering erodes trust in the Internet when users are no longer certain that typing www.internetsociety.org into a web browser will get them to the Internet Society website. To address the issues of illegal online activities, policy makers need to act in accordance with basic international norms including the rule of law and standards of due process. "Quick and easy" technical solutions to non-technical problems must be considered carefully to avoid infringing internationally-agreed human rights and eroding trust in the Internet.
  • The real solution to combating illegal activities is to attack them at the source, through international cooperation. These are cross-border issues and cannot be effectively solved on a country-by-country basis. A continuing dialogue between national authorities and the Internet community can help. For example, better authentication of DNS name registrants would allow for the possibility of tracking back bad behavior to an identifiable person, which itself may act as a deterrent. Other levers, such as attacking the payment systems used by cyber-criminals, may also yield longer-lasting and more effective results. International cooperation provides the appropriate avenue for policymakers and the technical community to solve this problem.

Ironically, ISED says there would be conditions set out in the regulation that would balance the rights of all parties, including: "the complexity and cost of implementing the relief sought on the intermediary would not unduly burden the intermediary or its lawful services… [and] the relief sought would not unduly affect the ability of users to access or make use of content lawfully or the exercise of their freedom of expression". This is an oxymoron in itself as the conditions Internet intermediaries would face to carry out website blocking, de-indexing, and the like would inherently be unduly burdensome to the intermediary and users.

The Internet Way of Networking

Furthermore, content filtering and blocking by ISPs, based on informal government pressure rather than legislation, appears frequently to result in over-blocking in other countries that use these techniques, such as the United Kingdom. In the absence of transparency about which content is blacklisted, or a reliable means to contest and appeal over-blocking, overall trust in content availability and accountability may be damaged.

The core impacts of this proposal could also harm three of the five critical properties of what we call the Internet Way of Networking (IWN)Footnote 9. The IWN critical propertiesFootnote 10 are a description of the necessary (though not sufficient) attributes that allow independent networks to connect to one another and, all together, form the global Internet. When the Internet is under threat, so are the opportunities it offers. If ISED moves forward with this proposal, the following aspects of Internet could be harmed:

Critical Property 1 – An Accessible Infrastructure with a Common Protocol
Government-mandated blocking or filtering can be imposed on all carriers and ISPs in a country in parallel, or through certain technical mandates that ISPs may apply in somewhat different variations. Both approaches breach the open and accessible infrastructure of the global Internet and may create significant barriers to accessing it, particularly across countries. Content filtering and blocking in this way profoundly undermine the "permissionless" model of access to infrastructure.

Critical Property 3 – Decentralized Management and a Single Distributed Routing System
Blocking interferes with and damages the common distributed routing system the global Internet depends on, specifically by interfering with the operation of the IP numbering system and the DNS. IP-based blocking works by inserting a device into the network to block IP addresses. DNS-blocking is done by funneling traffic to a modified and unauthoritative DNS server that blocks certain names. Both these methods intentionally fracture the operation of the Internet's routing and addressing, with the consequence that names and addresses do not resolve consistently, authoritatively and dependably everywhere. DNS-blocking also compromises security by routing traffic to modified servers.

Requiring these methods forces infrastructure intermediaries to impose additional requirements on routing policy and DNS management that conflict with the current goals of maximizing resilience, reducing costs and optimizing traffic flows. This reduces their ability to optimize connectivity. Network-level blocking profoundly damages the ability of network operators to provide global reach and worldwide connectivity.

Critical Property 4 – Common Global Identifiers
Common global identifiers, particularly the IP and domain name addressing systems, deliver consistent addressing. When these systems are fractured – including by network-blocking systems – networks rely on vastly sub-optimal gateways, translators and mapping tables to maintain the broken connections. Fractured namespaces create additional costs, overhead, friction and delays within the network, and reduce the security and reliability of consistent, authoritative addressing. Further, when the critical property of functioning and consistent global identifier systems is damaged, the Internet ceases to be a global network and becomes a set of imperfectly interconnected, sub-optimal networks.

IP-based blocking places barriers in the network, such as firewalls, that block all traffic to a set of IP addresses. A variation on IP-blocking is throttling, where a portion of traffic to an IP- number is blocked, making access slow and unreliable to discourage users. Blocking whole ranges of IP numbers 'over-blocks' wide swathes of the Internet, blocking many more than the intended sites or services. Over-blocking using the DNS causes similar 'collateral damage' when an entire website is blocked in order to cut access to specific pages or types of content on it. All these practices fragment the global identifier systems and damage the critical property that makes the Internet consistently accessible and authoritative.

Conclusion

Simply put, website blocking and de-indexing are an affront to the principles of a free and open Internet. They would erode the unified nature of the global Internet and interfere with cross border data flows. There are significant technical and security issues inherent to these practices as well as a high probability of negative consequences to the Internet's infrastructure. And, fundamentally, they aren't very effective.

Website blocking and de-indexing may seem like innocuous terms but they gloss over serious implications on how this technology can undermine the basic functionality of the Internet. The decision to move forward, or not to move forward, with ISED's proposed reform should only be taken after a full examination of the potentially negative effects of on the security and stability of the Internet, its critical properties, and how it may inadvertently block legitimate websites. In our opinion, the negative impacts of disabling access greatly outweigh any benefits.

The Internet Society encourages ISED to review the attached brief and consider alternative approaches to its copyright framework. Furthermore, we encourage ISED to adopt the Internet Impact Assessment ToolkitFootnote 11 in future policy development processes as a means to ensure the Internet con continue to be a driver of social and economic progress for Canadians.