Anti-Racism Groups, Global Network Initiative, and News Media Canada Post Responses

Multiple anti-racism groups, the Global Network Initiative, and News Media Canada published their responses to the online harms consultation.

The responses to the online harms consultation is becoming overwhelming. At first, the responses being published started with my own submission. What followed was a tsunami of condemnation from individuals and organizations. The list of submissions just keeps growing. So far, we’ve documented the Internet Society Canada Chapter, the Independent Press Gallery of Canada, Michael Geist, Open Media, CIPPIC, Citizen Lab, the Internet Archive, CARL, Canadian Civil Liberties Association, the CCRC, the International Civil Liberties Monitoring Group, Access Now, and the Cybersecure Policy Exchange. That list is now only getting bigger.

First, multiple anti-racism groups have spoken out about the online harms proposal. This one is interesting because the proposal does actively target so-called hate material. Well, these organizations are responding and they are not happy with the direction this has taken. In their submission, they comment how they are “profoundly concerned by the government’s proposed “online harms” legislation”. More from their submission:

Particular aspects of concern regarding the proposed legislative framework from an anti-racism perspective include:

1. Incentivization of over-removal produced by: the short timeline for required response after content being flagged (24 hours); the obligation for online communication service providers (OCSPs) to take proactive measures to identify harmful content, including through use of automated systems (repeatedly shown susceptible to amplifying existing biases); vague definitions that will lead platforms to be over-inclusive in order to be “safe;” and significant financial penalties for non-compliance.

2. Conflation of very different types of online harms – for example, “hateful” or “terrorist” content with “child sexual exploitation” or “non-consensual sharing of intimate images” – under a single regulatory regime. This is particularly problematic given the existing deployment of categories of “hate speech” and “terrorist speech” to censor Black and Palestinian content online; abetted, in the Palestinian case, by efforts to institutionalize the International Holocaust Remembrance Alliance definition of antisemitism, widely critiqued for conflating criticisms of Israeli policy with antisemitism.

3. Increased information-sharing with law enforcement and security agencies regarding possibly harmful content. As law and technology scholar Michael Geist observes, this may “lead to the prospect of [artificial intelligence] identifying what it thinks is content caught by the law and generating a report to the RCMP” – likely intensifying the current state of over-policing and -surveillance of colonized and racialized communities.

4. Sweeping search powers for “inspectors” to verify compliance with the legislation, secret hearings, and new information-gathering powers for CSIS – allocating further police-like capacities to CSIS.

5. Absence of adequate transparency, accountability, and redress measures with no clear mechanisms for publicly assessing whether Internet companies are fulfilling their obligation to prevent discriminatory treatment in content removal and reporting to law enforcement and CSIS; the protection of companies from criminal and civil liability for notifications to law enforcement and CSIS made in “good faith”; and no requirement to restore content found to be wrongfully removed, deferring to Internet companies’ own community standards. As three UN Special Rapporteurs recently noted, “such terms of service or community standards do not reference human rights and related responsibilities, thereby creating the possibility of an ‘escape route’ from human rights oversight.”

According to Daphne Keller, Director of the Program on Platform Regulation at Stanford’s Cyber Policy Center, Canada’s proposal is “like a list of the worst ideas around the world – the ones human rights groups … have been fighting in the EU, India, Australia, Singapore, Indonesia, and elsewhere.”

So, this is a continuation of the themes we’ve been seeing in other submissions. There is the concerns about the requirement to remove content within 24 hours leading to over-removal, lumping different so-called harms into the same basket, the secret aspects of law enforcement and a lack of transparency. In fact, we see that the concerns include an increase in over-policing in colonized and racialized communities thanks to this proposal. There have been a number of submissions that touch on this topic of the online harms proposal would make matters worse on this front, but this submission specifically flags the worsening conditions of racialized and colonized communities. So, an interesting and great point to raise here.

Of course, the question is, who is behind this joint letter? Let’s just say that the list is not only massive, but growing to boot. It’s obviously too many to incorporate into a single headline, but we are all too happy to list what the list looks like right now below:

Organizational signatories

Arab Canadian Lawyers Association
British Columbia Civil Liberties Association
Canada Palestine Association
Canada Palestine Support Network – CanPalNet
Canadian BDS Coalition
Canadian Arab Federation
Canadian Council of Muslim Women (CCMW)
Canadian Foreign Policy Institute
Canadians for Justice and Peace in the Middle East (CJPME)
Canadians for Peace and Justice in Kashmir (CPJK)
Canadians United Against Hate
Catholics for Justice and Peace in the Holy Land
Community Coalition Against Racism (Hamilton)
Independent Jewish Voices Canada / Voix juives indépendantes
International Civil Liberties Monitoring Group (ICLMG)
Islamic Social Services Association
Jewish Liberation Theology Institute
Just Peace Advocates/Mouvement Pour Une Paix Juste
Ligue des droits et libertés
Mathabah Institute
Niagara Movement for Justice in Palestine-Israel (NMJPI), ON Canada
PAJU (Palestinian and Jewish Unity)
Palestinian Canadian Congress
Samidoun Palestinian Prisoner Solidarity Network
Sisters Dialogue
Socialist Action / Ligue pour l’Action socialiste
South Asian Legal Clinic of Ontario
Uyghur Rights Advocacy Project
Individual signatories

Aman Sium, Eritreans for Peace and Justice
Anna Lippman, PhD candidate
Anne Dagenais, activist
Annette Lengyel, Human Rights for Palestinians Activist
Aron Rosenberg, PhD Candidate, McGill University
Dr Arun Kundnani, writer
Azeezah Kanji, journalist and legal academic
Bill Skidmore, Human Rights professor, Carleton University (retired)
Dr Chandni Desai, Assistant Professor, Critical Studies of Equity and Solidarity, University of Toronto
Cheryl Gaster, Human Rights Lawyer (Retired)
Claudia K. Keller, Clergy
Corey Balsam, National Coordinator, Independent Jewish Voices
Dania Majid, Arab Canadian Lawyers Association
Dr David Palumbo-Liu, Louise Hewlett Nixon Professor, Stanford University., US
D Nashi, Barrister and Solicitor
Doug Hewitt-White, Conscience Canada
Dr. Adnan A. Husain (Department of History and Director, Muslim Societies-Global Perspectives Project, Queen’s University)
Dr. James Deutsch, Div. of Child and Adolescent Psychiatry, Univ. of Toronto
Dr. Sujith Xavier, Associate Professor, Faculty of Law University of Windsor
Ed Corrigan, lawyer
Elizabeth Block, member of Independent Jewish Voices and CFSC
Elizabeth-Anne Malischewski, Independent Jewish Voices
Emo Yango, The United Church of Canada
Ernest Dalymple-Alford, retired university professor
Faisal Bhabha, Associate Professor, Osgoode Hall Law School, York University
Gail Nestel, Educator
Gordon Doctorow, Ed.D.
Greg Starr, College Instructor
Helga Mankovitz, member, Independent Jewish Voices
Jeannette Schieck, BA MSc retired OCT
Dr Jeffrey Monaghan, Associate Professor, Carleton University
Jenny Stimac, Independent Jewish Voices
Jeremy Wildeman, PhD
Jillian Rogin, Assistant Professor, University of Windsor, Faculty of Law
Karen Rodman (Rev), ordained minister and human rights advocate
Karin Brothers, writer and activist
Khaled Loutfi Mouammar, Former Member of the Immigration and Refugee Board of Canada
Kikélola Roach, Unifor National Chair in Social Justice and Democracy at X University (formerly Ryerson)
Lev Jaeger, United Jewish People’s Order member, Independent Jewish Voices member
Dr Mark Ayyash, Associate Professor of Sociology, Mount Royal University
Mark Robert Brill, member, Independent Jewish Voices, Ontario Coalition Against Poverty, long time activist
Mary Girard, human rights and justice activist
Michael Keefer, Professor Emeritus, University of Guelph
Dr Nahla Abdo, Professor, Carleton University
Nicholas Sammond, Director, Centre for the Study of the United States, University of Toronto
Omar Burgan, Labour researcher
Dr Paola Bacchetta, Professor, University of California, Berkeley
Parker Mah, artist/producer and community activist
Rabbi David Mivasair, emeritus, Ahavat Olam Synagogue
Rachel Small, World BEYOND War
Dr Randa Farah, Associate Professor, WesternU
Rashmi Luther, Lecturer (retired), School of Social Work, Carleton University
Ria Heynen, activist
Richard Marcuse, Arts Consultant
Dr Rinaldo Walcott, Associate Professor, University of Toronto
Sam Arnold, Independent Jewish Voices
Shawn Nock, human rights activist
Sid Shniad, solidarity activist, member Independent Jewish Voices Canada
Suzanne Weiss, author and activist
Sydney Nestel, IT consultant, retired
Tim McSorley, National Coordinator, International Civil Liberties Monitoring Group
Vicki Obedkoff, United Church of Canada minister
Wolfe Erlichman, Independent Jewish Voices
Yom Shamash, Independent Jewish Voices
Zainab Amadahy, author and community activist

That already is an incredible list and it’s apparently growing. Not going to fit that in a reasonable length headline, that’s for sure.

Another organization that is speaking out is the Global Network Initiative. In their posting, they make the following comment:

As we note in the policy brief, “​​by imposing strict time limits on all content adjudication, states may effectively hinder the ability of ICT companies to prioritize resources and make nuanced, content and circumstance-specific determinations. These time limits may also make it difficult for the author to contest the allegation (i.e., issue a counter-notice) or seek injunctive relief or other remedy.” The proposed approach implies Canadian authorities could shorten or otherwise adjust timelines for the different forms of harms. We strongly encourage an alternative approach that provides clear guidance as to what characteristics or circumstances merit prioritization in content moderation and allows flexibility to those charged with making such determinations.

GNI appreciates the need for robust content moderation processes and believes that international human rights and due process standards should guide both these processes and any corresponding regulatory approach. In this regard, we are pleased to see proposed requirements for OSCPs to provide notice about decisions to their users, as well as opportunities for redress. As we note in the policy brief, however, outsourcing enforcement of criminal provisions to private companies, without appropriate guidance on interpretation and application (e.g., the lack of a clear definition of “reasonable measures”), raises significant concerns under the international principles of legality and necessity.

The current framing also encourages adoption of and reliance upon automated content filters, which are unlikely to serve as the least restrictive means to address the broad set of harms identified in the proposal. The biases that have been documented to feed into and be perpetuated by such automated measures can also undermine the stated aim to ensure that companies’ moderation practices “do not result in differential treatment of any group based on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act and in accordance with regulations.” As with other provisions, this reliance on filters, if enacted into law, is likely to be picked up upon and emulated by other governments.

Of the new entities contemplated, the Digital Safety Commissioner appears to be the most formidable. The proposed approach would give significant powers to administer and enforce the proposed obligations, including a novel “complaints regime” focused exclusively on complaints of “non-compliance.” While the proposal acknowledges the likelihood of complaints being received that are “trivial, frivolous, vexatious, made in bad faith,” it provides no mechanism to punish or otherwise disincentivize such misuse. Without such measures, and combined with the significant penalties contemplated for non-compliance, we are concerned that this complaints mechanism could turn into a megaphone to amplify the impact of the “heckler’s veto.”

In addition, the proposal to empower the Commissioner to conduct inspections of OCSPs, including physically accessing “any place” or “any thing,” at any time, for any reason (not to mention the contemplation of the possibility of the use of force in such inspections), is incredibly broad and inviting of abuse and should be significantly circumscribed. While audits can be a useful enforcement tool, these powers create the potential for overly intrusive and potentially coercive inspections, as well as a possible backdoor for unauthorized surveillance. There are ample examples of how such broad and unchecked authorities have been abused in other countries. In short, this aspect of the proposed approach would be an unnecessary and unfortunate precedent.

The proposed approach puts forward a vast array of new obligations on OCSPs, new enforcement bodies, and new powers and authorities. While there is no doubt that new regulatory attention and approaches are needed, the burden is on the government to make a clear case for why so much is required to be implemented so quickly. Without further articulation of both the specific challenges that the government intends to address, and clear evidence for why the proposed changes are required and well-tailored to address those, the government risks creating confusion and unintended consequences at home. It also risks undermining the critical and well-deserved reputation and influence that it has on internet policy and governance abroad.

So, a bit of a more gentle approach to the process, but generally follows along so many major themes raised by others.

Finally, there is News Media Canada. In their submission, they seem to be supportive of the online harms proposal. We’ve only really seen one other submission that even came close to supporting it (the CCRC). They commented with the following:

As a matter of principle, our journalists should be afforded the same protections in the online world as they are in the offline world. Accordingly, we recommend that the Government of Canada explicitly recognize online threats to journalists directly into the Act. Journalists should be afforded “exceptional recourse” to online threats.

News Media Canada submits online platforms should:

  • Act upon reports of harassment from news publishers and journalists within 24 hours.
  • Invest in technology to detect online hate against journalists.
  • Detail online harm against journalists in their transparency reports.
  • Be held accountable through Canada’s libel, defamation, and hate laws, just as Canada’s news publishers are.
  • Face economic penalties when they fail to comply with Canadian laws.
  • Make it hard for internet trolls to ‘profit’ from the monetization of content that harms journalists.

There is a fair bit of irony in this submission. The organization is only thinking of large online platforms (ala “big tech”), but the online harms proposal, as pointed out by so many others including myself, targets everyone as if they are a large tech giant. As a result, it stands to actually harm journalists rather than help them. This is especially true for smaller players in the industry as a whole. Of all the organizations out there, this organization has the least reason to not do their research before commenting. So much of the submission focuses on advertising revenues and how big tech is reaping the benefits of publishers. The problem is, this is the wrong place to bring this up because the link tax debate is completely separate from this consultation.

At any rate, this submission looks like it supports the online harms proposal, but it looks like the submission simply read a few headings and made assumptions accordingly. This as opposed to reading the actual paper like I did.

A much more reasonable position might have been that although they appreciate the efforts to crack down online harms as experienced by journalists, the one-size fits all would greatly harm journalists. This is through the overly burdensome requirements placed on all websites. It would have been more ideal to have placed these requirements strictly on the large tech giants rather than expecting small journalism outlets to abide by 24 hour requirements as well as the other requirements to operate a small website. Such requirements would force the closure of many journalism outlets online, potentially running them out of business and laying off journalists and several spinoff positions in the process. This especially when an online web presence has allowed greater access to the work of journalists like never before.

That above paragraph would have been a position that would have been reasonably expected from an organization that represents journalists. That, of course, didn’t happen and it looks like the submission that was sent was a wasted opportunity to represent journalists at a critical moment in the debate.

At any rate, the volume of submissions is definitely quite great and we’ll continue to document them as we find and read them.

(Hat Tip: Michael Geist)

Drew Wilson on Twitter: @icecube85 and Facebook.



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