David Fraser, Privacy Lawyer, Offers His Analysis of Bill S-210

David Fraser (AKA Privacy Lawyer) has offered an analysis of Bill S-210. I may have underestimated how alarming this bill is.

When I wrote my analysis of Bill S-210 last year, I came to a number of conclusions about the bill. Those conclusions include the fact that the bill is a threat to personal privacy to Canadians, it is an attack on freedom of expression, it ramps up internet censorship, it’s poorly written, and it’s very likely unconstitutional. The details of the bill that I was able to uncover was alarming to say the least – especially since the bill is progressing through the parliamentary process.

There are a few things I should note about my analysis. First, I never claim that it was perfect. Further, I never claim that I am a legal expert (aka, I am not a lawyer). What’s more, whenever I approach these analysis, I am always open to anyone offering a different take that I might have overlooked provided that there is a reasonable basis for this alternative take. It is precisely why whenever I see someone else provide an analysis of the legislation, it gets my attention. That was definitely the case earlier when the staffers of the senator who officially wrote this bill released a so-called “FAQ” which turned out to be just as badly written as the legislation itself.

Recently, however, someone else has provided their own analysis. That is, of course, David Fraser who also goes by the name of Privacy Lawyer. It should be noted that his analysis and my analysis did come to the same conclusions where the bill is poorly drafted, an attack on freedom of expression, increases internet censorship, violates Canadian privacy, and is likely unconstitutional. What you might be surprised to learn is that my analysis apparently underestimated just how alarming this bill is. The video can be found here or in the embed below where you can watch it yourself:

So, how did I underestimate just how bad this bill is? It’s generally where his analysis and my analysis differs. For convenience, here is the text of the legislation itself.

One of the things I wasn’t sure of is who actually enforces this legislation. In Fraser’s analysis, while not mentioned in the bill, he suggested that the likely body charged with enforcing this legislation would probably be the CRTC. This, in retrospect, makes sense because that regulatory body generally covers telephone services, broadcasting, and internet (to an increasing degree in the last few years). Amusingly, yet chillingly, he referred to the enforcement arm of the CRTC charged with enforcing this bill as the “porn police” which, honestly, wouldn’t be inaccurate.

Another part of Fraser’s analysis that I apparently overlooked is the application process when enforcing this legislation. This revolves around Section 8 of the legislation:


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).

Fraser, being an actual lawyer, saw the problem of this section right away. He noted that the legal threshold of triggering a notice is incredibly low. It isn’t the criminal threshold of beyond a reasonable doubt. What’s more, it isn’t even the bar for civil litigation. It’s simply “grounds to believe” which is a much lower bar still. In other words, if someone assaults another person and that assault goes to a civil trial, the evidence that is needed for a judgment against the alleged assailant is even higher than it is to order either an ISP to block a website or to fine a Canadian website $250,000 for an alleged offence under this bill.

Another major problem with this section, Fraser noted, is that the notice doesn’t even need to detail what the offending content even is. All the notice can say is that the authority issuing this notice has reason to believe that explicit material is being made available to minors, please fix this. This, again, speaks to just how poorly drafted this bill ultimately is.

What’s more, the party being targeted with this notice has 20 days to comply with whatever vague demand is being made by, presumably, the CRTC porn police. There’s no grace period of any kind and as long as the notice was issued, the 20 days will continue to tick down.

What is even more alarming is what happens when the 20 days is up. That is where Section 9 of the bill comes into play:

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.


(2) The enforcement authority that applies for an order under subsection (1) must name, in addition to the non-complying organization, any Internet service provider who would be subject to the order as a respondent to the proceedings.
Hearing in summary way

(3) An application made under subsection (1) is to be heard and determined in a summary way in accordance with any special rules made in respect of such application under section 46 of the Federal Courts Act.


(4) The Federal Court must order any respondent Internet service providers to prevent access to the sexually explicit material to 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 8(1) has committed the offence referred to in section 5;

(b) that organization has failed to take the steps referred to in paragraph 8(2)‍(c) within the period set out in paragraph 8(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 sexually explicit material made available by that organization.

(emphasis mine)

As Fraser noted, supporters love to talk about Section 6(2) which has provisions in it saying that the content in question can be for educational purposes, among other things. The relevant section is this:

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, what’s the problem here? If a website were to appear before the courts (which is already a very high bar given that such a thing does cost, at times, quite a bit of money) and argues that the content in question is for, say, educational purposes, the defence would not even matter. This is because Section 9(4) of the bill says that the defence wouldn’t matter because the court must issue the order to block the offending website anyway. In other words, the website in question would have no defence to fight against such an order regardless of how legitimate their defence might have been under Section 6(2).

Generally speaking, from the looks of things, Fraser makes a spectacular case for making these points. I really don’t see anything wrong with the points he is making in any way.

Practical Implications

So, a pretty obvious question at this point would be, what does that mean for something like Freezenet? Well, it is entirely possible that someone might look at something I wrote somewhere along the line, take offence to it, but rather than challenge me on any of the points by providing a counterargument, instead, opt to try and get me silenced through Bill S-210. Even a weak argument that requires considerable creativity and moral gymnastics would be sufficient for my site to receive a notice as a result.

That would lead to the possibility that I might be required, under such a notice, to implement some heavy handed intrusive surveillance measures of my audience. As it is now, I already had some minor reservations for utilizing things like Google Analytics and Google Adsense, but chose to implement them anyway because, for one, I needed to know if some kinds of content are performing better than other kinds of content and, for another, I needed to find a way to recoup server costs. It’s those reservations that have also helped drive the decision to not even contemplate implementing any kind of ad block blocking technology as well. If you, as a user, don’t like being tracked and what to block the minor (at least, minor compared to some of the more mainstream sites out there) tracking technology that was implemented, I fully respect that with the simple ask to consider supporting this site through Ko-Fi or Patreon (or even an additional method if there is anyone out there requesting another way).

If, however, I receive a notice demanding that I completely wall off the site and demand something like facial recognition scans or government ID just to access the website, then I’m of the opinion at this point to choose to just shut down this site instead. It’s ridiculous that you would be asked for something that sensitive just to access the news and I disagree with the idea of layering on so much surveillance technology. I find such measures to be completely unnecessary and if the choice came down to heavy surveillance and pulling the plug on the site, I’d rather pull the plug because I have too much respect for the audience to do something as insane as that. Besides, such measures would absolutely kill the audience numbers in the first place and it would only be a matter of time before I would have to shut down the site anyway.

Unless this bill undergoes significant reform, then I would say that this bill would get challenged in court long before it came to that, but I’m not certain that it would go down exactly that way. The implications of such a decision would be that I would end a 19 year long news writing career in the process, but I’d rather do that then subject you to heavy surveillance technology that I, myself, consider to be completely unnecessary and puts your personal information at risk. It would be a very difficult decision, but I think it would be the rational decision to make under the circumstances.

While I can speak for myself on how I could easily react to this legislation, one thing that I’m also remembering in all of this is that every website operating in Canada will have to tackle very similar thoughts revolving around this legislation. Is the price of admission where you would pay huge amounts of money for government approved surveillance of your users worth it? Different people will have different ideas on this. Some will easily conclude that people online shouldn’t expect any semblance of privacy and consider it a small price to pay to keep their web operations afloat. That, however, is just one piece of the puzzle.

There’s also the direct cost to the website entirely. While a portion of that is the direct cost to license this technology, that is, by far, not the only cost the web service would have to absorb. There’s the additional server load of validating credentials which would slow down load times. In addition to that, there is inherently going to be a large portion of web users who will see the warning message of “You must by 18+ to proceed, please submit your validation through this third party” and nope the heck out. That is a portion of your traffic now leaving the site and will invariably mean fewer people to see those ads or fewer people who could potentially buy your products or subscribe to your services.

So, even if various web owners out there are going to plug their collective noses, install the technology, and hope that it doesn’t cost them too heavily, chances are, there is going to be the costs of a loss of we traffic to their sites. If those web owners are barely scraping by, that added strain on the bottom line is going to potentially tip a few services over the edge. It’s that much more in innovation that Canadian’s are going to lose out on. All this is obviously going to hurt Canadian consumers in the end. Whether it is a dramatically reduced expectation to privacy or loss of services they end up losing in the end anyway, there are going to be costs associated with this law.

All of these costs are going to pile up while, at the same time, this bill isn’t solving anything. It’s not going to protect against underaged people from being solicited by strangers online. If anything, Canadian children would be put at greater risk than ever before. So, for instance, if a nefarious user from another country were to access Facebook (as an example), they wouldn’t have to verify anything. They would be unhindered from targeting minors in all of this. Even worse, Canadian offenders would only need a VPN to circumvent the age gate before continuing to commit felonies anyway. This while adding a massive layer of unprecedented surveillance on people who are completely innocent of everything that is involved in the first place.

It’s not even getting into how scammers could take advantage of the personal information being put on the web and extort people for money in the first place. If anything, fraudsters are licking their chops over this legislation, visualizing how much more money they can steal from Canadian victims in the first place thanks to this.

All in all, some people have been skeptical about the concerns raised in this legislation. If anything, though, Fraser’s video suggests I wasn’t actually raising the alarm bells enough about this legislation. Still, this is the benefit of having different perspectives looking into this legislation. Some people might see something others might miss. I’m glad Fraser did this video and I learned something new about this legislation as a result. I’m glad he produced that video and I encourage others to check it out.

Drew Wilson on Twitter: @icecube85 and Facebook.

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