Conservative Internet Censorship Bill, Age Verification, is Back. Our Analysis

The Conservative party backed internet censorship bill, the age verification bill, is back before the senate already.

It was only the other day we were talking about the throne speech which left digital and technological innovation behind. What was left in its wake was a giant middle finger to all things internet related. It was by no means a good way to kick off this brand new session of parliament if you cared about things like internet access, freedom of expression, the right to privacy, and more.

While the Liberal party side of the aisle seems to be showcasing an attitude of “fuck you” to all things internet, that doesn’t necessarily mean that the Conservative party is going to let themselves be left behind in trying to crack down on internet freedom.

During the last session of parliament, the Conservatives were trying to ram through their own mass internet censorship scheme. This became known as Bill S-210, or Canada’s age verification laws. The law had vague definitions of what “pornographic” even was. What’s more, it set no threshold for when a website is required to implement massively expensive and ineffective age verification systems. This meant that websites of all shapes and sizes, regardless of their focus, would be forced to implement these cumbersome pieces of technology in the first place, forcing them to be out an untold amount of money just so that they can carry on with a semblance of business as usual.

Even worse, the technology envisioned doesn’t exist and the legislation utterly failed to protect user privacy. The legislation envisioned age verification that was “effective”. How exactly? By telling the makers that they just need to nerd harder in order to provide something that works. That’s how! This despite repeated analysis that currently existing technology fails to accomplish the goals of protecting people’s personal information and is effective at the same time.

This over top of the fact that the legislation completely and utterly failed to protect people’s personal information. There were no fines or other penalties associated with taking that personal information and selling it off to third party cybercriminals so they can exploit the heck out of that information for blackmail purposes. It truly was a disaster waiting to happen and Canadians can thank their lucky stars it died on the orderpaper.

Now, I will fully confess that I thought it would be a few days before the legislative agenda would start forming. There are probably a lot of bills to be table that is considered higher priority for the government and the senate. This includes a focus on budgetary issues among other formalities. However, as one reader informed me, this was a mistaken belief.

The reality was that there was no time wasted as the Conservative party backed internet censorship bill is already back and making its way through the legislative process. The bill in question is now known as Bill S-209 and the information page on it can be found here. Understandably, my heart sank as my first thought is probably what so many others are thinking right now, “Here we go again.”

Since we are so early into the legislative process, we are merely on first reading as of this writing. So, for now, the text of the bill can be found here (subject to the usual amendments later on down the road of course).

The bill doesn’t waste time as this is one of the early provisions in question:

Making pornographic material available to young person

5 Any organization that, for commercial purposes, makes available pornographic 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.

So, basically the cost of innovation is immediately going up for anyone on the internet. This is immediately followed up with this:

Clarification — commercial purpose

6 For greater certainty, for the purpose of section 5, an organization that incidentally and not deliberately provides a service that is used to search for, transmit, download, store or access content on the Internet that is alleged to constitute pornographic material does not make available pornographic material on the Internet for commercial purposes.

On initial analysis, this sort of sounds like some of the concerns from the last version (which was brushed off as “disinformation” last time). The thing is, this is a very limited provision that is seemingly only targeting search engines. If you are a smaller independent website, the only way to fall under this category is if the content was automatically aggregated as far as I can tell. If you are a website that just happens to be talking about material that is deemed to be “pornographic material”, then you are no longer falling into the category of “incidentally”. At that point, you better pay up big or risk getting fined.

For those wondering about the definition being used for this bill, this is it:

pornographic material means any photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, 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, but does not include child pornography as defined in subsection 163.‍1(1) of the Criminal Code. (matériel pornographique)

The immediate question for me is this: who defines what is and is not “for a sexual purpose”? One great example of this would be the cover art for the music album, “Nevermind” by Nirvana. Most would probably argue that the depiction on there is not for a sexual purpose. Some, however, might deem is “pornographic” as described by the definition above. Who gets to decide who is right and who is wrong? Is it majority rule? Is it through a vague set of ideas?

What’s more, what if we are talking about something that is less well known? What if it’s a small independent artist who has some artwork that happens to depict a female breast somewhere on there? If I, as a website owner, happen to link to a page depicting an artists content, and some of that art happens to depict something that falls within the definition of “pornographic”, what are my liabilities? What If I talk about a video game that happens to have such material? I know for a fact I have already reviewed games that contain such material in the first place. What’s more, even if it doesn’t have such material officially associated with it, what if the video game is known to have fan art that is explicit? Where does the liability on my part starts?

When I’m talking about vagueness in the definitions, this is the kind of thing I’m talking about. I don’t fall under the category of “incidentally” if I’m intentionally talking about that kind of material that happens to have that kind of material associated with it.

So, what’s the solution people end up having in response to such a law? This section makes it very clear:

Defence — age verification or age estimation

7 (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 or age-estimation method to limit access to the pornographic material made available for commercial purposes to individuals who are at least 18 years of age.

Because this legislation raises so much legal uncertainty, the only certainty afforded here is to implement this age verification system in the first place (an age verification that, quite frankly, doesn’t really exist in any adequate manner). That is literally the only effective defence to protect yourself from hundreds of thousands in fines. Anything short of that would be too risky no matter what subject your website covers.

Now, I can hear internet censorship advocates argue that there are exceptions that make this a better law. They will probably refer to this next section:

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.

Which, again, falls under the category of vagueness. Again, who decides if it’s a “legitimate purpose”? After all, I’ve seen industry lobbyists argue that content posted online on streaming platforms like YouTube be considered “not art”, regardless of what the material may be. What’s more, I don’t see journalism as a defence to this. Education is not exactly the greatest fit because it implies you are teaching a specific audience or that you have an educational background. Most journalists don’t have either. The best us journalists can hope for is just publish and pray we don’t get fined anyway.

Of course, this law isn’t exclusively tied to domestic websites. It applies internationally as well (which tells you just how stupid this bill is in the first place). This is addressed in the following section:

Notice

9 (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 pornographic material by 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).

So, essentially, authorities will apply an internet censorship order for ISPs to block access to the website in question. Notice that there is no limitation to the origin of the website in question. As a result, the fact that this is an internet censorship bill is very explicit in this bill.

Further, there is no wiggle room on whether or not a blocking order should be put in place:

Order

(4) The Federal Court must order any respondent Internet service providers to prevent access to the pornographic material by young persons on the Internet in Canada if it determines that

(a) there are reasonable grounds to believe that the organization that has been given notice under subsection 9(1) has committed the offence referred to in section 5;

(b) that organization has failed to take the steps referred to in paragraph 9(2)‍(c) within the period set out in paragraph 9(2)‍(d); and

(c) the services provided by the Internet service providers who would be subject to the order may be used, in Canada, to access the pornographic material made available by that organization.

So, basically, it’s automatic internet censorship. What’s more, this seems to try and wrap VPN services into this. That just opens up a huge can of worms right there. How does one even enforce that? A number of VPN services know how to evade ISP blockades and have no problem providing an endless stream of new ways of accessing their services. As a result, you are going to have an endless cycle of court action that ultimately could be described as a legal “whack-a-mole”.

This leads us to this next section of the bill which talks about what kind of age verification system the people framing this legislation are envisioning:

Age-verification and age-estimation methods

(2) Before prescribing any age-verification or age-estimation method under paragraph (1)‍(b), the Governor in Council must ensure that the method

(a) is highly effective;

(b) is operated by a third-party organization that deals at arm’s length from any organization making pornographic material available on the Internet for commercial purposes;

(c) maintains user privacy and protects user personal information;

(d) collects and uses personal information solely for age-verification or age-estimation purposes, except to the extent required by law;

(e) limits the collection of personal information to what is strictly necessary for the age verification or age estimation;

(f) destroys any personal information collected for age-verification or age-estimation purposes once the verification or estimation is completed; and

(g) generally complies with best practices in the fields of age verification and age estimation, as well as privacy protection.

Now, for the people who hate free speech: point me to the part of the bill that prescribes financial penalties for age verification vendors who violate any of the above. Go ahead, I’m waiting. No? Nothing? Yeah, exactly. If an age verification vendor decides to quietly sell off that personal information to criminals, the most the government can do is eventually deem the vendor as ‘not effective’. That’s it. All a vendor has to do is gather that data once and they are rolling in the cash afterwards. Getting kicked out of Canada is just a giant “meh” problem to them because they already got what they came for.

Moreover, for anyone who has any real knowledge for how this newfangled thing called “the internet” works, they are bursting out laughing at (a). After all, the bill might as well prescribe the use of magical fairy dust and unicorn farts to power these systems. This is because there is no such thing as a “highly effective” age verification system, let alone one that “maintains user privacy and protects user personal information”. It doesn’t exist. Never has, never will. The only way to make something like that come into existence is to pretend that the technology is sufficient even though it is not. It’s a stupid way to handle things to say the least.

While I respect the language change of trying to “ensure” that the requirements are fulfilled, it doesn’t change the fact that this is little more than a fools errand. It’s a fantastic example of lawmakers trying to legislate away all the “bad stuff” on the internet while keeping all the “good stuff” and just letting others try and work out the details even though the details are impossible to work out.

At any rate, while there are changes to this bill from the previous version, it’s still an unconstitutional nightmare.

For one, the bill is a government mandate to censor speech online. Legally protected speech is invariably going to get taken down and that will give cause for a challenge sooner or later. It’s not a matter of “if”, but “when” that happens.

For another, the definitions are vague and subject to interpretation. For crying out loud, they are using subjective terms in the field of the arts which is already a very subjective thing in the first place. One person’s art is another persons “pornography”. You’re never going to leave anyone satisfied with any ruling.

This over top of the fact that this will invariably put considerable strain on Canadian innovators and business leaders. You know the solutions the government approves are going to cost and arm and a leg thanks to the monopolistic power this generates. If the vendor in question goes up in price, who is the website owner going to turn to? The whole system envisioned by this bill is a price fixing scandal waiting to happen.

I really hope this ugly law never gets passed because it’s just a clusterfuck of bad ideas. We do have a minority parliament, so it’s entirely possible that this could happen. As we are finding out the hard way, though, right wing politician’s are giving this unconstitutional nightmare the most time possible to get passed, suggesting that they are just salivating at the chance to finally start stamping out freedom of expression on the internet.

Drew Wilson on Mastodon, Twitter and Facebook.