The Canadian Radio-television and Telecommunications Commission hosts long-awaited network management hearings this week, pitting Canada’s telecom and cable companies against a broad range of consumer, creator, and technology groups in a fight that may help clarify whether Canada has – or should have – net neutrality laws.

The telecom and cable companies will likely maintain that managing their networks, which may include using "deep packet inspection" to identify subscriber activity and limiting available bandwidth for certain applications (a practice known as throttling), is essential to ensure optimal access for all subscribers. Consumer associations, independent Internet service providers (ISPs), broadcasters, creator groups, and technology companies are likely to warn against network management practices that raise competition, privacy, and consumer rights concerns.

My weekly technology law column (Toronto Star version, homepage version) notes that as the Commission weighs the various claims, it would do well to consider the testimony it heard just a few months ago during the February new media hearings. The issue at play at those hearings was whether ISPs should face a levy to fund new media or be required to prioritize Canadian content (the CRTC declined to do both in its decision released last month). Interestingly, the same telecom and cable companies that will now argue that managing their networks is essential, offered a somewhat different take when confronted with the prospect of doing so in the name of supporting Canadian content.

For example, Shaw Communications's network management submission states "traffic management is necessary to ensure that Shaw's customers continue to have access to fast, reliable and affordable service." It adds the "traffic shaping process uses deep packet inspection (DPI) technology to identify packets that are associated with P2P file-sharing applications and to slow those packets down, limiting the amount of available capacity P2P traffic consumes."

Yet when CEO Jim Shaw was asked about the prospect of identifying traffic during the new media hearings, he told the Commission, "we can only tell you how many bits are coming in or out. We don't know what kind of bit it is. It could be anything from an e-mail to a porno. We don't know that. We spend no time trying to figure out what bits are going to your house. We just don't know."

The same inconsistencies arise within the context of the technological capability of discriminating against certain content. While the telecom and cable companies will argue their network management practices do not target specific content, when asked about the issue during the new media hearings, an expert witness for MTS Allstream told the CRTC "now it does happen on some basis. It happens, for instance, under the purview of intelligence agencies quietly. There are things that go on; however, the consumers haven't been directly told ‘We are going to start sniffing your packets.'"

In fact, when net neutrality supporters point to the need for an "open Internet" that treats content and applications in an equal manner, they might remind the CRTC that they are not alone in making that case.

During the new media hearings, Rogers Communications told the Commission "there is no walled garden, there is no preferred content, it's just a pipe. We are moving to a big, wide-open pipe," while the same MTS Allstream expert, perhaps foreshadowing the outcome of the network management hearings, acknowledged "when a commercial interest attempts to violate the principle of openness, as it is defined by the open culture movement, there tends to be a very dramatic and forceful rebuking."