The Conservative party is quietly pushing for an internet censorship bill in Canada – and they are succeeding.
With the Liberal party pushing their three pronged approach to cracking down on the internet, they have developed a reputation for being a party pushing to censor the internet in every way imaginable. Between the Online Streaming Act that would censor independent digital first creators, the Online News Act that caused news links to disappear from Meta platforms, and the forthcoming Online Harms bill that would carpet bomb any independently run website in Canada into oblivion, the reputation is well deserved.
The Conservative party has been against these proposals and have positioned themselves as champions of free speech. While their opposition to these bills is certainly welcome, I’ve always been skeptical about this idea that they are really the defenders of freedom of expression that they make themselves out to be. In the past, one of the reasons why is because of right leaning supporters pushing to ban moderation, cut funding to news organizations, and frequently flip flopping on the concept of free speech whenever it deals with expression they disagree with (such as expression supporting LGBT content, environmental activism, women’s health, and other causes they happen to not support).
That skepticism of mine has apparently been very warranted, but for a reason I have apparently been overlooking. A bill known as S-210 has been working its way through the senate. It is basically Canada’s age verification law. Unsurprisingly, this is the brainchild of senator Julie Miville-Duchêne who has long been waging a war on all things icky on the internet. The senator attempted to shoe-horn a poorly thought out age verification provision in Bill C-11 right before passage, however, that provision was mercifully axed by the government prior to passing the bill.
The senators war on the internet, however, didn’t end with that as she pushes forward with this entirely separate bill. The legislation itself requires websites to have an age verification system in place should their website happen to have explicit content available. Failure to do so would see that website hit with a fine of up to $250,000 for the first offence and up to $500,000 for the second offence. The problem with demanding age verification is that no system is ever going to be reliable. Yet, the law is written so that it has to be somehow “reliable”:
(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.
It should go without saying that writing a law demanding technology behave in a mythical way you want it to behave won’t magically make it happen. The simple truth is that no system that exists today is reliable. Clicking on a tick box saying that you are over 18 is something anyone can do. A credit card and government ID can be stolen. A VPN can be used. Any other system is going to have weaknesses with regards to protecting personal information. What’s more is that you are expecting private third party offshore websites to maintain such a system. This is, put plainly, a law being written demanding the impossible.
It will invariably lead to websites simply choosing to block Canada altogether rather than risk facing such steep penalties. That invariably leads to internet censorship.
Yet, that isn’t stopping the Conservative Party, the NDP, or the Bloc from backing this monstrosity. Conservative MP, Anna Roberts, went so far as to say that anyone who opposes this internet censorship bill are “shameful“:
The MP went on to use the tired argument that censoring the internet is done to “protect the children” when the reality is that it will cause far more harm than it could ever hope to stop.
This isn’t just mindless theory and philosophy, either. This perspective is backed by what actually happened in other countries when they also engaged in this bad thought experiment. Utah, in the United States, passed a similar law and websites began blocking residents from that state altogether. When the UK pushed for similar laws, Wikipedia threatened to leave the UK. It’s all part of a long-standing counterpoint to these poorly thought out laws: they are unworkable.
Michael Geist has also weighed in on this:
However, Bill S-210 goes well beyond personal choices to limit underage access to sexually explicit material on Canadian sites. Instead, it envisions government-enforced global website liability for failure to block underage access, backed by website blocking and mandated age verification systems that are likely to include face recognition technologies. The government establishes this regulatory framework and is likely to task the CRTC with providing the necessary administration. While there are surely good intentions with the bill, the risks and potential harms it poses are significant.
The basic framework of Bill S-210 is that it creates an offence for any organization making available sexually explicit material to anyone under the age of 18 for commercial purposes. The penalty for doing so is $250,000 for the first offence and up to $500,000 for any subsequent offences. Organizations (broadly defined under the Criminal Code) can rely on three potential defences:
- The organization instituted a “prescribed age-verification method” to limit access. It would be up to the government to determine what methods qualify with due regard for reliability and privacy. There is a major global business of vendors that sell these technologies and who are vocal proponents of this kind of legislation.
- The organization can make the case that there is “legitimate purpose related to science, medicine, education or the arts.”
- The organization took steps required to limit access after having received a notification from the enforcement agency (likely the CRTC).
The enforcement of the bill is left to the designated regulatory agency, which can issue notifications of violations to websites and services. Those notices can include the steps the agency wants followed to bring the site into compliance. This literally means the government via its regulatory agency will dictate to sites how they must interact with users to ensure no underage access. If the site fails to act as instructed within 20 days, the regulator can apply for a court order mandating that Canadian ISPs block the site from their subscribers. The regulator would be required to identify which ISPs are subject to the blocking order.
The website blocking provisions are focused on limiting user access and can therefore be applied to websites anywhere in the world with Canadian ISPs required to ensure that the sites are rendered inaccessible. And what about the risk of overblocking? The bill not only envisions the possibility of blocking lawful content or limiting access to those over 18, it expressly permits it. Section 9(5) states that if the court determines that an order is needed, it may have the effect of preventing access to “material other than sexually explicit material made available by the organization” or limiting access to anyone, not just young people. This raises the prospect of full censorship of lawful content under court order based on notices from a government agency.
Geist goes on to explain other issues with the bill. For one, it applies to any website, not just websites that specialize in such content. He further notes that systems that are currently in place have facial recognition systems in place, raising serious privacy concerns.
With respect to the former, that is arguably one of the biggest reasons why this bill is so dangerous. What is considered explicit? Honestly, the bill doesn’t really define this aspect. It just says that the content is “explicit”. This can mean entirely different things to different people. For some, explicit material could mean the exposure of a belly button. For others, anything related to LGBT content is “explicit”. A legal definition of “explicit” material is not really found in this bill that I was able to find.
It’s a horrible bill that needs to be killed, but the mouth breathers screaming “SAVE THE CHILDREN!!!eleventyoneone” will no doubt be relentless in their pursuit to crack down on the internet at large. Hopefully, this bill never makes it to the finish line, though.