We recently learned of Bill S-210, so naturally, we decided to take a deeper dive into the legislation by offering this analysis.
Yesterday, we learned of Bill S-210. It is a Conservative backed bill aimed at censoring the internet. While we offered a few thoughts on this legislation, we thought we’d offer a deep dive into what this bill does.
First of all, general information of this bill can be found here. Currently, it has cleared the senate stages and is working it’s way through the House of Commons. It has recently passed the second reading and is awaiting third reading. It could, in theory, go to committee for study, but if that doesn’t happen, then the only step afterwards is Royal Assent.
So, what does the text say? Well, the text of the bill, in its current form, can be found here. So, if you want to read this bill as we are reading it for yourself, you are certainly free to do so. We’ll flag points of interest and talk more deeply about it.
Actual Text of the Bill
One of the definitions of note is this:
sexually explicit material means sexually explicit material as defined for the purpose of subsection 171.1(1) of the Criminal Code
So, the question is, what does this mean? We did look deeper into information surrounding the Criminal Code and finally found this:
Definition of “sexually explicit material”
(5) In subsection (1) [making sexually explicit material available to child – forms of offence], “sexually explicit material” means material that is not child pornography, as defined in subsection 163.1(1) [definition of child pornography], and that is
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a person’s genital organs or anal region or, if the person is female, her breasts;
(b) written material whose dominant characteristic is the description, for a sexual purpose, of explicit sexual activity with a person; or
(c) an audio recording whose dominant characteristic is the description, presentation or representation, for a sexual purpose, of explicit sexual activity with a person.
It’s a pretty broad definition to say the least. What’s more, there is definitely room for interpretation. For example, there’s no threshold for what portion of a work is considered “explicit”. So, if you have a 500 page novel and 2 pages were “explicit”, then, in theory, that book could be considered “explicit”.
Age Verification Requirements
So, the bill starts off with this:
Making sexually explicit material available to a young person
5 Any organization that, for commercial purposes, makes available sexually explicit material on the Internet to a young person is guilty of an offence punishable on summary conviction and is liable,
(a) for a first offence, to a fine of not more than $250,000; and
(b) for a second or subsequent offence, to a fine of not more than $500,000.
This bill is already off to an incredibly bad start. For example, how can a website determine that a young person is accessing their content? Simply put, they can’t track that sort of thing. As a result, this falls back on whether or not such content is available at all as the only way to be sure.
Even worse, the website can’t say that they thought that the person in question was over the age of 18:
Defence — age verification
6 (1) It is not a defence to a charge under section 5 that the organization believed that the young person referred to in that section was at least 18 years of age unless the organization implemented a prescribed age-verification method to limit access to the sexually explicit material made available for commercial purposes to individuals who are at least 18 years of age.
There is a vague exception to this which follows that up:
Defence — legitimate purpose
(2) No organization shall be convicted of an offence under section 5 if the act that is alleged to constitute the offence has a legitimate purpose related to science, medicine, education or the arts.
So, the natural question to this is, who determines this? Does the website determine this? Does law enforcement determine this? What about the people accessing it? This section does not clarify this.
So, how does a website avoid being convicted under such a law? The bill goes on to say this:
Defence — compliance with notice
(3) No organization shall be convicted of an offence under section 5 if, in relation to the act that is alleged to constitute the offence, the organization has received notice under section 8 and has taken the steps referred to in paragraph 8(2)(c) within the period set out in paragraph 8(2)(d).
Enforcement of Age Verification
The Act goes on to say this:
7 The Governor in Council may, on the recommendation of the Minister, designate an agency, division or branch of the Government of Canada as the enforcement authority for the purposes of sections 8 and 9.
This is rather vague, but the Governor in Council will end up determining the regulatory body meant to oversee this. Honestly, lets cut to the chase and say it is likely the CRTC that will take control of this file as well.
The bill then goes into censoring the internet with this section:
8 (1) If the enforcement authority has reasonable grounds to believe that an organization committed an offence under section 5, the enforcement authority may issue a notice to them under this section.
Content of notice
(2) The notice must state
(a) the identity of the organization;
(b) that the enforcement authority has reasonable grounds to believe that the organization has committed an offence under section 5;
(c) the steps that the enforcement authority considers necessary to ensure compliance with this Act;
(d) that the organization must, within 20 days after the notice is issued, take the steps referred to in paragraph (c);
(e) that, if the organization fails to take the steps referred to in paragraph (c) within the period set out in paragraph (d), the enforcement authority may apply to the Federal Court for an order requiring Internet service providers to prevent access to the sexually explicit material to young persons on the Internet in Canada; and
(f) that the organization may make representations to the enforcement authority in relation to any element of the notice within the period set out in paragraph (d).
This is where the bill goes into how it intends on censoring the internet. An application would then be sent to a court ordering ISPs in Canada to block the website or a portion of that website.
Arguably, though, this is also where the legislation could also theoretically run into constitutional problems as well. If the material is otherwise legal, then this bill also runs the risk of being declared unconstitutional – not to mention the censorship orders that ensued. It’s a pretty straight up violation of freedom of expression where otherwise lawful content is being censored by a government body. That would certainly be an interesting case to follow should it ever get to this point (and we all hope it never does and this bill never passes).
Section 9 pretty much duplicates what was said, but offers a timeline of 20 days as well:
Application to Federal Court
9 (1) If an organization that receives a notice under subsection 8(1) fails to take the steps referred to in paragraph 8(2)(c) within the period set out in paragraph 8(2)(d), the enforcement authority may, within 20 days after the day on which the period ended, apply to the Federal Court for an order requiring Internet service providers to prevent access to the sexually explicit material to young persons on the Internet in Canada.
There’s a section about transparency that suggests that general statistical information would be made available to the public:
10 The Minister must cause to be tabled in each House of Parliament, within three months after the end of the fiscal year or, if a House is not then sitting, on any of the first 15 days on which that House next sits, a report on the administration and implementation of this Act. The report must include, for the previous fiscal year,
(a) the number of notices issued under subsection 8(1);
(b) the number of applications for an order made under subsection 9(1); and
(c) the outcome of applications made pursuant to subsection 9(1).
There’s really not a whole lot here that suggests that there will be some sort of transparency mechanism. Just some general statistics gathering and quick explanations on the outcome of the orders.
The bill then goes on to detail the age verification process it deems appropriate:
11 (1) The Governor in Council may make regulations for carrying out the purposes and provisions of this Act, including regulations prescribing the age-verification methods referred to in subsection 6(1).
(2) Before prescribing an age-verification method under subsection (1), the Governor in Council must consider whether the method
(a) is reliable;
(b) maintains user privacy and protects user personal information;
(c) collects and uses personal information solely for age-verification purposes, except to the extent required by law;
(d) destroys any personal information collected for age-verification purposes once the verification is completed; and
(e) generally complies with best practices in the fields of age verification and privacy protection.
This is an absolute privacy nightmare. As others have said, some companies that create these mechanisms for age verification employ things like facial recognition, order people to for over drivers licenses, and other sensitive personal information. While he bill pretends to shield privacy, there is no penalties for failure to comply with the destruction of said personal information. All it does is ask, pretty please, delete the sensitive information, and leave it at that.
Companies generally like to collect as much personal information as possible. The reason for this is because it’s an extremely lucrative business to buy and sell people’s personal information. There’s data brokers out there buying and selling silos of this kind of information for thousands, if not, millions of dollars. Given that Canada’s privacy laws are simply the Privacy Commissioner sending strongly worded letters, there’s no incentive to really comply with the destruction of records. The only incentive is to collect said information.
Additionally, 11 (2) (a) is not technologically possible. There is no technology that exists today that would be considered “reliable” by any stretch of the imagination. As I mentioned in the previous article, drivers licenses can be stolen, VPNs can be used, and other forms of credentials can be faked. Writing a law demanding that this magical form of technology just appear and be used won’t make that technology magically appear. You’re just wishing for the moon at this point.
Further, there is no such thing as “best practices” in this field. This is something the government will have to invent on their own accord – and it’s something that could change at any time anyway.
This is a terrible bill, plain and simple. It’s a freedom of expression nightmare that actively encourages the censorship of websites. It’s a privacy nightmare because it demands that websites collects huge troves of information with technically no enforcement of the destruction of records afterwards. What’s more, it’s hard to envision this law also passing constitutional muster because material that is otherwise perfectly legal content is getting ordered to be censored by the government.
The damage this law could cause is very easily immense. At the same time, this bill solves absolutely nothing. It won’t magically stop people under the age of 18 from accessing “explicit” material online (whatever the heck that ends up meaning). It is a bill clearly written by someone who doesn’t understand technology or the internet.
Hopefully, this bill never becomes law because it’s a very clear cut example of bad lawmaking. Unfortunately, the Conservatives, NDP, and the Bloc all support it, so there’s a chance that this atrocity could hit the lawbooks at some point in the future.