International Condemnation for Canada’s Online Harms Proposal Expands Via EFF

The Electronic Frontier Foundation (EFF) is joining the chorus of those speaking out against Canada’s online harms proposal.

The horrors that is Canada’s online harms is hitting home to more people and organizations. Earlier this month, we reported on the online harms proposal being made public. Ever since, the more people learn about it, the more outrage there is about it.

The Canadian government, for their part, offered a “consultation”, though it is best described as a consultation by notice paper. Essentially, the government posted what they intend on doing with the legislation, relegating the consultation process to a mere formality before marching ahead with their own plans. We responded to the consultation not because we thought that our voice mattered (anyone opposed to the idea will very likely be completely ignored as far as we are concerned), but rather, deny the political opportunity for the government to say that there was no opposition to the proposals.

As the proposal seems to be moving ahead, we also offered some clarification on where this proposal is and where it is likely going to go at this stage in light of the political climate (namely, Canada is seemingly destined to head into an election at this stage).

After our efforts to educate the public about this latest threat to online freedom, it seems that more and more people are getting the message. As we reported, the online harms proposal is sparking near universal condemnation. Part of the condemnation comes from US based Techdirt. It’s significant in that the legislation is so bad, it’s getting the attention of those in other countries as well. The writer described the effort as part of Canada’s war on Internet freedom. It’s really an accurate description given what Canada has been up to for thel ast few years.

Now, we are learning that Techdirt isn’t the only international observer condemning the legislation. US based digital rights organization, the EFF, is joining the chorus condemning this proposal. From the EFF:

Policymakers around the world are contemplating a wide variety of proposals to address “harmful” online expression. Many of these proposals are dangerously misguided and will inevitably result in the censorship of all kinds of lawful and valuable expression. And one of the most dangerous proposals may be adopted in Canada. How bad is it? As Stanford’s Daphne Keller observes, “It’s like a list of the worst ideas around the world.” She’s right.

All of this is terrible, but perhaps the most terrifying aspect of the proposal is that it would create a new internet speech czar with broad powers to ensure compliance, and continuously redefine what compliance means.

The potential harms here are vast, and they’ll only grow because so much of the regulation is left open. For example, platforms will likely be forced to rely on automated filters to assess and discover “harmful” content on their platforms, and users caught up in these sweeps could end up on file with the local cops—or with Canada’s national security agencies, thanks to the proposed reporting obligations.

Private communications are nominally excluded, but that is cold comfort—the Canadian government may decide, as contemplated by other countries, that chat groups of various sizes are not ‘private.’ If so, end-to-end encryption will be under further threat, with platforms pressured to undermine the security and integrity of their services in order to fulfill their filtering obligations. And regulators will likely demand that Apple expand its controversial new image assessment tool to address the broad “harmful content” categories covered by the proposal.

Canada also appears to have lost sight of its trade obligations. In 2018, Canada, the United States and Mexico finalized the USMCA agreement, an updated version of NAFTA. Article 19.17 of the USMCA prohibits treating platforms as the originators of content when determining liability for information harms. But this proposal does precisely that—in multiple ways, a platforms’ legal risk depends on whether it properly identifies and removes harmful content it had no part in creating.

Ironically, perhaps, the proposal would also further entrench the power of U.S. tech giants over social media, because they are the only ones who can afford to comply with these complex and draconian obligations.

Finally, the regulatory scheme would depart from settled human rights norms. Article 19 of the International Covenant on Civil and Political Rights allows states to limit freedom of expression under select circumstances, provided they comply with a three-step test: be prescribed by law; have legitimate aim; and be necessary and proportionate. Limitations must also be interpreted and applied narrowly.

Canada’s proposal falls far short of meeting these criteria. The UN Special Rapporteur on free expression has called upon companies to recognize human rights law as the authoritative global standard for freedom of expression on their platforms. It’s profoundly disappointing to see Canada force companies to violate human rights law instead.

This law is dangerous to internet speech, privacy, security, and competition. We hope our friends in the Great White North agree, and raise their voices to send it to the scrap heap of bad internet ideas from around the globe.

The whole post is worth reading as it also offers more details on what the proposal means. Obviously, we already covered much of the ground covered by the EFF. We went into a greater level of detail by quoting the paper itself for many of our points, but the EFF also offers a shorter summary of the proposal for those not as concerned with the nuts and bolts of the paper.

Perhaps the overarching good news about this additional coverage is that it shows that there is a growing consensus on what the online harms paper is about and the negative impacts it will have on the Internet – especially the Internet in Canada. It’s not just us and Michael Geist raising the alarm bells. Plenty of others are also raising the alarm as well. Everyone else is coming to the same conclusions we came to in our early reporting.

For our part, we are still trying to figure out how Freezenet would survive under these new draconian rules. We know that after an election, this will march ahead no matter how much evidence or sound reasoning is proposed or offered. At this point, the best chance of fighting this would be the eventual litigation to try and invalidate it. Even then, that still leaves the Canadian internet vulnerable. There’s always that possibility that the law could be enforced as it makes its way through the courts. The damage of that alone stands to be extreme depending on the enforcement of this legislation.

If the technical paper is taken verbatim and translated into passed legislation (as widely expected), it would mark the situation I’m least confident about surviving (this after everything I’ve been through to get to this point). That’s how bad this situation stands to get. What’s more is that we’ve seen fears not only fully realized, but things going worse than expected on top of it all. We can only hope that things don’t get ugly, but there isn’t much in the way of hoping this won’t be the case.

Drew Wilson on Twitter: @icecube85 and Facebook.

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