Xplornet asked me not to write this - Macleans.ca

Xplornet asked me not to write this

File this one under “Streisand Effect”

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Photo by wheresmysocks/Flickr

File this one under “Streisand Effect.” It’s a story I wouldn’t be writing if I hadn’t been warned not to.

Let’s start with some background: in Canada, we supposedly have Net Neutrality. That means your Internet service provider can’t mess around with the speeds of your connection based on which sites or apps you use. Yet ISPs in Canada still mess with the speed of our connections based on which sites or apps we use. How is this possible? Two reasons:

  1. Because there are exceptions to the CRTC’s Net Neutrality regulations (if ISPs say they have to slow you down in order to manage “network congestion,” they can).
  2. Net Neutrality rules are only enforced after they are broken, only if consumers complain, and only if the CRTC bothers to investigate and act.

Recently, Internet law prof Michael Geist obtained public CRTC documents revealing that, though dozens have complained about cases of speed “throttling,”  the CRTC has only enforced Net Neutrality once, on a company called Barret Xplornet—a government-subsidized provider servicing rural areas with satellite service.

The CRTC investigated complaints against Xplornet and found that in degrading the speed of an Internet phone service (or VOIP), they were violating a Net Neutrality rule against slowing “time sensitive” applications. (Incidentally, Xplornet does not degrade the speed of its own Internet phone service.) The CRTC was also on Xplornet’s case for not properly disclosing its “traffic management” practices to customers. Both problems have since been addressed.

When I first read Geist’s blog post on this regulatory failure, I didn’t give Xplornet a second thought. The big Internet providers (such as Rogers, which owns Maclean’s) seemed like bigger stories, since they received the brunt of consumer’s complaints, and they are the ones the CRTC has neglected to act on. Xplornet was the exception to the rule—the one instance where Net Neutrality was enforced. Ten minutes after reading Geist’s post, I probably couldn’t have told you Xplornet’s name.

But I certainly know it now.

Xplornet got my attention when they issued a press release—a “warning to editors” not to pick up the story from Michael Geist. They accused him of omitting information, drawing incorrect conclusions, making allegations, and misleading readers. Of course, several news outlets had already picked up the story, so the warning came a little late. By then, most policy-minded tech reporters in Canada had already turned their attention to the CRTC’s hearings on UBB. Still, there it was, a public caution that picking up the story would “represent the publication of materially misleading statements regarding our company.”

It sounded to me like libel chill—a warning to go no further or face legal consequences.

Curiously, Xplornet’s press release failed to specifically identify any of Geist’s transgressions. Geist’s post didn’t make any allegations or draw any conclusions, false or otherwise. The stuff about Xplornet struck me as a straightforward summary of two public letters Geist had obtained from the CRTC. I got curious and rang Jeff Hecker, Xplornet’s in-house PR guy, whose contact info was included on the press release.

Jeff quickly passed me along to one Morten Paulsen, an external PR pro hired by Xplornet. He wasn’t too eager to chat with me. He didn’t like my tweets about the press release, and asked me whether I was actually a journalist for Macleans, or “a blogger who gets picked up from time to time” (I’m both!). For a big-gun PR professional, Morten has an odd way of endearing himself to the press. He called my editors at Maclean’s and demanded written confirmation that any piece I write would be edited for accuracy and fairness.

The interview went ahead with my assurance that Xplornet would have an honest chance to substantiate their allegations. Morten brought Xplornet’s head of legal affairs on to the call. Her name is C.J. Prudham. Anti-DRM geeks may remember as Sony’s legal counsel during the rootkit scandal in 2005.

I asked Prudham and Paulsen about their claim that Geist had left out important information. What had he omitted?

Prudham said Geist “omitted all of the conversations and correspondence between the CRTC and Xplornet. In fairness, he may not have had this correspondence. He certainly wasn’t on the telephone calls… I suppose it’s difficult to omit what you don’t have.”

I went on to ask how Geist had “misled” readers. Prudham cited Geist’s claim that it took Xplornet “months to respond to CRTC requests to improve its disclosure practices.” Yet it did take Xplornet 16 months to comply with the CRTC’s requests and to disclose to customers the ways in which their web traffic was being manipulated. Prudham said “we were in regular correspondence with the CRTC during that period.” I was confused for a moment as to why that would be relevant.  Then I realized that she was arguing about the meaning of the word “respond.”

What about Geist’s “incorrect conclusions”? Prudham cited his claim that Xplornet fixed the disclosure problem “only after the Commission threatened to launch a public proceeding.”

“But that’s true,” I pointed out. “You did this after the CRTC threatened you.”

“But Geist’s implicaton,” Paulsen said, “is that we did it because of the CRTC.”

Fair enough. In the interests of fair and balanced journalism, here is what you should know about Xplornet and what they want you to know. I’ll even put their stuff in bold:

  1. It took 16 months for Xplornet to conform to the CRTC’s disclosure demands. But they weren’t ignoring the CRTC—they were in constant communication during that time.
  2. When they did finally tell customers what they were doing, it was after the CRTC threatened to haul them into a public proceeding—but that’s not why they did it.
  3. They degraded the speed of a competitor’s Internet phone service (VOIP) to the point where it was unusable—but they did so by accident. It was a technical problem with a codec.

Perhaps Xplornet is satisfied that this matter is now cleared up. Or perhaps they regret accidentally turning a spotlight on themselves while fumbling to shut off the power.

Jesse Brown is the host of TVO.org’s Search Engine podcast. He is on Twitter @jessebrown.