ISPs on the Front Line

Internet Service Providers (ISPs) are often on the front lines of the battles taking place in internet law.  In the BMG case (BMG Canada Inc v. John Doe) (which was referred to in our October 30th post), it was the ISP community which took the brunt of the recording industry’s efforts to stop online peer-to-peer file-sharing. In that decision, the court denied the request by copyright holders to force ISPs to disclose their customers’ identities where copyright infringement was alleged.  ISPs fought to for the right to protect their client’s identities (or framed in a business context, they fought for the right to avoid expensive disclosure obligations) and won.

The Modernization of Investigative Techniques Act , a proposed federal law which was first introduced in 2005 by the Liberal government, would impose stricter obligations on ISPs to permit “lawful interception of communications by law enforcement agencies and the Canadian Security Intelligence Service.”  This bill died before being passed into law, but it is certainly cause for concern for ISPs who are navigating the line between privacy rights, legitimate concerns over illegal activity, the interests of copyright holders… and the dictates of profitability in a competitive marketplace.

In a recent case in Ontario [see story link] the quick response of an ISP led to the disclosure of the identity of a subscriber and a speedy arrest by investigators.  That case (involving sexual assault) highlights the issue but does not provide much guidance for ISPs in the more nuanced area of alleged intellectual property infringement.  We will be monitoring developments to see whether the Conservative government will introduce legislation in this thorny area.

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