Tempers are starting to flare up for Senator Julie Miville-Dechene. She attacked people with accurate interpretations of her bill.
Canada’s mass internet censorship bill, S-210 (aka the age verification bill), is continuing to make headlines. Clear back in December, we did our own analysis of the legislation. Throughout our analysis, we found numerous critical flaws in the bill including weak definitions of what could be considered “explicit” material, effectively demanding every website comply by implementing a highly intrusive age verification process which could easily include facial recognition scans and biometric surveillance, demanding the use of technology that doesn’t actually exist, mass internet censorship that could easily be circumvented by something like a VPN, and potentially saddling Canadian internet entrepreneurs with $250,000 – $500,000 fines (effectively putting them at a severe competitive disadvantage) among other things.
Digital rights organization, more recently, agreed with our assessment and published their own FAQ, essentially agreeing with what we had to say. The organization then signed on to an open letter with numerous other civil rights organizations calling for the government to not pass this legislation, citing the fact that it is so severely flawed that it cannot even be fixed.
Obviously, I took my concerns to the government as well. I not only notified my own MP about these issues, but I also took my concerns to the senator in question. After multiple attempts at airing my concerns, she did what she and some of her colleagues have a long history of doing: ignoring the experts and anyone with concerns. This happened with the Online News Act as well as the Online Streaming Act, so the fact that she continues to ignore concerns that are backed up with evidence is hardly surprising – this especially with the fact that I’m not a famous celebrity which, in the eyes of the government, makes what I have to say even less noteworthy regardless of accuracy (I also attribute this to the reason why I wasn’t invited to speak before the Canadian senate after presenting a solid case against the Online News Act – comments that ended up proving to be prophetic in the end).
While ignoring not so famous people with accurate assessments of Bill S-210 might take you farther than you should, that well of ignoring accurate commentary will dry up sooner or later. Today, that is exactly what happened. Michael Geist spoke out about these issues and made the same points many others were making. Specifically, the point of contention that is becoming a flashpoint (and, let’s face it, many issues could’ve been a flashpoint) is the fact that every website will be expected to implement the mythical effective age verification technology. The senator has been disagreeing and tried to push the talking point that the bill only applies to pornographic material and porn websites – a that point that we have debunked long ago.
The tweet that started this was Geist responding to the senator to point out that the bill applies to every website:
I am grateful to @mivillej for coming on @lawbytespod, but respectfully this and her FAQ are misleading. Section 5 of Bill S-210 applies to any organization that makes sexually explicit material available online. That includes search & social media sites.
The senator then responded with this:
.@mgeist What’s misleading is suggesting (as you and others do) that S-210 will impose age verification everywhere, and that it is some kind of malicious plot to control everything on the Internet. It’s ridiculous. Read sections 5 & 6 of the bill (below). The age-verification obligation applies only to access pornographic material. If there’s no porn on a website/platform, there’s no age verification. If there’s porn and non-porn, age verification can be limited to the porn content. If it’s all porn, age verification applies across the board. It’s not complicated. I’m sure you understand it. But for some reason you choose to ignore this.
So, you could really tell that the senator was getting frustrated when her talking points is collapsing under scrutiny. As we’ve independently verified, what Geist is saying is accurate. The senator is simply trying to re-imagine what the bill actually does as opposed to what the text of the bill itself actually does. That is, apply age gating technology everywhere. This is what we said during out analysis:
Age Verification Requirements
So, the bill starts off with this:
Making sexually explicit material available to a young person
5 Any organization that, for commercial purposes, makes available sexually explicit 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.
This bill is already off to an incredibly bad start. For example, how can a website determine that a young person is accessing their content? Simply put, they can’t track that sort of thing. As a result, this falls back on whether or not such content is available at all as the only way to be sure.
Even worse, the website can’t say that they thought that the person in question was over the age of 18:
Defence — age verification
6 (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 method to limit access to the sexually explicit material made available for commercial purposes to individuals who are at least 18 years of age.
There is a vague exception to this which follows that up:
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, the natural question to this is, who determines this? Does the website determine this? Does law enforcement determine this? What about the people accessing it? This section does not clarify this.
So, how does a website avoid being convicted under such a law? The bill goes on to say this:
Defence — compliance with notice
(3) No organization shall be convicted of an offence under section 5 if, in relation to the act that is alleged to constitute the offence, the organization has received notice under section 8 and has taken the steps referred to in paragraph 8(2)(c) within the period set out in paragraph 8(2)(d).
In a nutshell, if “explicit” material (whatever the heck that ends up meaning) appears on a website, then the website is liable for a $250,000 fine for the first offence and a $500,000 fine for every subsequent offence. The only defence that the website can have against this is if they implement the age verification technology that doesn’t exist. So, for example, if someone posts a comment on an ad supported website, then that makes the website liable for these fines because explicit material is being made available for commercial purposes.
For all we know, someone posting the comment “go screw yourself”, that could very easily subject the website to a fine for making adult material available to young people and the website administrators would have no clue until the fines start rolling in. By that point, it would be too late. The only legal defence a website operating in Canada can possibly make is implementing the age verification process to the entire website just to be sure. As a website owner, I am dead set against the idea of implementing intrusive privacy invading technology like whatever age verification process I would be required to implement.
Probably the most amusing part of that exchange is the fact that the screenshot of the text of the bill proved Geist’s concern – the very screenshot the senator thought would prove Geist wrong on his assertion. Geist, of course, had no problem pointing this out:
Sorry, but the provisions you cite make my case. The bill covers *any* organization that makes sexually explicit material available online. They must implement government-approved age verification tech or face liability. That’s not a plot. It’s the bill.
The senator faceplanted quite hard on this one. In response, she seemingly retreated to her own timeline and posted this instead:
This is a common sense, non partisan issue. #cdnpoli
So, the senator is really grasping at straws here. Her arguments went down in flames and has now resorted to simply hiding from the criticism. So, once again continuing the theme of being a senator that ignores criticism and pretends that her bill is perfect in every way. What’s more, she is retreating to referencing American attempts to pass similar laws. Florida, the state referenced, is currently fighting a war against the 1st amendment with their blatantly unconstitutional internet control bills. It’s spearheaded by hugely controversial governor, Ron DeSantis (who some call “Ron Deathsentence” for his refusal to protect people from COVID-19 or “the man who backed down” after he dropped out of the presidential nomination race). Age verification is, of course, part in parcel of this war on the 1st amendment.
Simply put, if you are drawing inspiration from DeSantis for how to run a country, you need a serious reality check.
Sadly, with the way things are going, this will all end in history repeating itself yet again. The Online News Act was passed and implemented into law with lawmakers ignoring expert advice. Predictably, that law went splat when Meta dropped news links and forced mainstream media companies to operate at a loss. The Online Streaming Act was passed with lawmakers ignoring expert testimony and is now set to go splat as well when several streaming platforms eventually leave Canada. Now, Bill S-210 is on track to do the same thing. Lawmakers are in the process of ignoring expert testimony. If the bill is passed (good chance of that, sadly), then it will go splat when people start using TOR or VPN technology – you know, the same technology that supporters of the legislation convinced themselves wouldn’t ever be used because young people are supposedly too stupid to figure out that stuff in the first place. Yeah, the same people that grew up immersed in such technology can’t figure that out. Yeah, right, sure.
Either way, the senator pushing this legislation isn’t likely going to learn anything from this. For all we know, in her mind, she’s a senator and she does what she damn well pleases. It is everyone else’s job to sit down and shut up and, preferably, nod in agreement like bobble heads with everything she says. It’s why when this bill invariably fails, I won’t feel the slightest bit sorry for her when reality comes and bites her in the rear end. It’s not a question of “if”, but “when”.