Many of us think of Google merely as your friendly, neighbourhood search engine. But Google is more than just a home page. Questions are increasingly being raised about Google’s dominance in several areas including on-line advertising, privacy and, more recently, copyright (read: “Google Books”). Google is now coming out swinging even on telecommunications policy matters, having appeared at the CRTC’s recent hearing on ISP Internet tariff management practices (ITMPs). Konrad von Finckenstein, the Chairman of the CRTC, was pleased that Google “as one of the large players on the Internet”, was actively participating in the process. In asking “Is Google good for Canada?”, the Financial Post noted that “the message was clear: in any national conversation about the state of the Internet in Canada, Google is now a necessary participant.”.

Before the CRTC, Google raised some familiar arguments on “net neutrality”. It cited the 2008 finding by the FCC that Comcast, the largest U.S. cable company and a major broadband service provider, had improperly “managed” traffic through application-specific throttling of BitTorrent, an open source peer-to-peer (P2P) networking protocol. The FCC ruled that Comcast’s actions were “discriminatory and arbitrary” and in violation of FCC policy and had effectively denied subscribers access to content.

Google advocates “innovation without permission [which] requires a robust, open Internet”. Google also claims that its view was “echoed” by consumer groups, Internet policy advocates, content producers and distributors. Google’s objective is to further “the power of an open Internet to share insights, test arguments, and facilitate meaningful civic engagement — all in cool, unexpected ways”. Google opposes application-specific measures to target bandwidth-heavy P2P applications. These ITMPs effectively transfer the permission to the carrier to determine which applications are suitable.

Of course, much of this rhetoric ignores the fact that the Canadian legislative and regulatory telecommunications framework is significantly distinct from that of the U.S. Canadian telecommunications legislation, as far back as the 1906 federal Railway Act which prohibited discrimination by “persons authorized to construct or operate a telegraph or telephone system or line”. The 1993 Telecommunications Act extends such prohibition to ISPs such as Rogers or Bell. The Act also prohibits a common carrier from controlling the content or influencing the meaning or purpose of traffic that it carries for the public. This statutory foundation does not exist in the U.S. context, leaving the FCC to address Comcast’s ITMPs on an ad hoc basis.

The Canadian ISP community argued that existing statutory general prohibitions are adequate to address each case on its facts and that imposing new net neutrality rules would unnecessarily restrict the scope for engineering and business judgment of each ISP in a dynamic competitive marketplace.

Google’s arguments before the CRTC must be seen alongside other pressing public policy issues. Privacy advocates are concerned about “Deep Packet Inspection” (DPI), which enables an ISP to target specific applications for “traffic throttling” purposes. The Canadian Privacy Commissioner has recently been seized with a complaint related to DPI in Canada. In the U.S., the FTC, Congress and the FCC are beginning to raise questions about the impact on privacy of practices such as DPI.

The current ITMP debate should be seen as one skirmish in the ongoing “clash of the titans” between Google and Facebook over the issue of “innovation by permission”: Google has accused Facebook as acting as a giant “walled garden”, similar to the way AOL acted in the 1990s (before itself was punished by evolving technology) and is urging legislators and regulators to ensure that Facebook adheres to the principle of “openness and transparency”. This debate brings into stark relief the potentially competing interests of network management and privacy: the Privacy Commissioner is concerned that Facebook is “not closed enough” from a privacy perspective! For a very interesting discussion with Fred Vogelstein (contributing editor of Wired magazine) about the competing interests of privacy and "openness" when thinking about Google vs. Facebook, check out a recent podcast of CBC's The Current.

Jonathan Zittrain also asks “are we in danger of too much openness?”. Zittrain is concerned that Google’s dogged pursuit of “openness” with applications such as its new operating system, Chrome, moves us further away from running code and storing our information on our own PCs toward doing everything online — in “the cloud”. Zittrain identifies the “most difficult challenge — both to grasp and to solve — of the [Internet] cloud is its effect on our freedom to innovate.”

All of this suggests that the potential for “undue preference” is in the “eye of the beholder”: it can occur at both the network level (Google’s concern for ISP ITMPs) and at the “application” level (as per Zittrain, freedom is at risk in the cloud, where the potential for gate keeping by Google and others arise “in ways that Bill Gates never dreamed of”).

To bring some order from all of this chaos, it would be arguably good public policy to formulate a list of anticipated unduly preferential circumstances in all platforms and in all contexts. The CRTC has previously shown that it is willing to put its mind to this question in earlier structural debates.

We certainly haven't seen the last of Google before the CRTC