Monday, February 05, 2024

Canadian Bill S-210 proposes age verification for internet users

There’s a bill working its way through the Parliament that presents a clear and present danger to the free and open internet, to freedom of expression and to privacy online. It’s a private member’s bill that shockingly has gotten traction. 

You may have heard of it, thanks to Professor Michael Geist, who has called the Bill “the Most Dangerous Canadian Internet Bill You’ve Never Heard Of.”

In a nutshell, it will require any website on the entire global internet that makes sexually explicit material available to verify the age of anyone who wants access, to ensure that they are not under the age of eighteen. Keeping sexually explicit material away from kids sounds like a laudable goal and one that most people can get behind. 

The devil, as they say, is in the details. It presents a real risk to privacy, a real risk to freedom of expression and a real danger to the open internet in Canada. The author of the Bill says it does none of that, but I believe she is mistaken.

The bill was introduced in the Senate of Canada in November 2021 by Senator Julie Miville-Dechêne. She is an independent senator, appointed by Prime Minister Justin Trudeau in 2018. Much of her career was as a journalist, which makes her obliviousness of the freedom of expression impact of her bill puzzling. I don’t think she’s acting in bad faith, but I think she’s mistaken about the scope and effect of her Bill. 

In 2022, the Bill was considered by the Senate Standing Committee on Legal and Constitutional Affairs. That Committee reported it back to the Senate in November 2022, and it languished until it passed third reading in April 2023 and was referred to the House of Commons. Many people were surprised when the House voted in December 2023 to send it for consideration before the Standing Committee on Public Safety and National Security. Every Conservative, Block and NDP member present voted in favour of this, while most Liberals voted against it. Suddenly, the Bill had traction and what appeared to be broad support among the opposition parties. 

So what does the bill do and why is it problematic? Let’s go through it clause by clause. 

The main part of it – the prohibition and the offence – is contained in section 5. It creates an offence of “making available” “sexually explicit material” on the Internet to a young person. This incorporates some defined terms, from section 2. 

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.

“Making available” is incredibly broad. When a definition says “”includes”, it means that it can mean more than the terms that follow. “Transmitting” is a very, very broad term. Is that intended to cover the people who operate the facilities over which porn is transmitted? It is very broad. 

A “young person” is a person under the age of 18. That’s pretty clear. 

The definition of “sexually explicit material” is taken from the Criminal Code. It should be noted that this definition was created and put in the Criminal Code for a particular purpose. This is not a catch-all offence that makes it illegal to make sexually explicit material available to a young person. This is an element of an offence, where the purpose of providing this material to a young person is to facilitate another offence against a young person. Essentially, grooming a young person. 

Definition of sexually explicit material

(5) In subsection (1), sexually explicit material means material that is not child pornography, as defined in subsection 163.1(1), and that is

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) 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;

(b) written material whose dominant characteristic is the description, for a sexual purpose, of explicit sexual activity with a person; or

(c) an audio recording whose dominant characteristic is the description, presentation or representation, for a sexual purpose, of explicit sexual activity with a person.

To be clear, it is not a crime to make this sort of material available to a young person unless you’re planning further harm to the young person. 

Let’s look at what is included in this definition. Visual, written or audio depictions of explicit activity. And visual depictions of certain body parts or areas, if it’s done for a sexual purpose. 

In paragraph 5(a)(i), it does not say that the depiction has to be explicit. It says the activity in which a person is engaged is explicit. 

Let’s take a moment and let this sink in. This is not limited to porn sites. 

This sort of material is broadcast on cable TV. It’s certainly available in adult book stores (which specialize in certain types of publications), but it’s also available in general book stores. This sort of material is available in every large library in Canada. 

This definition would include educational materials. 

This definition is so broad that it covers wikipedia articles related to art, reproduction and sexual health. 

It is certainly not limited to materials that would cause a reasoned risk of harm to a young person. And it doesn’t take any account of the different maturity levels of young people. The sex ed curriculum is very different for 14 year olds, 16 year olds and 18 year olds. 

Section 6 is where the government mandated age verification technology comes in. Essentially, you can’t say that you thought you were only providing access to the defined material to adults. You have to implement a government prescribed age verification method to ensure that the people getting access are not under 18. That’s essentially the only due diligence defence. We’ll talk about government prescribed age verification methods shortly.

There’s another defence, which is “legitimate purpose”. 

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.” Maybe that will be interpreted broadly so that wikipedia articles related to art, reproduction and sexual health are not included. But it’s a defence, so it has to be raised after the person is charged. The onus is on the accused to raise it, not on the prosecution to take it into account at the time of laying a charge. 

There’s also a defence that’s available if the organization gets a “Section 8” notice and complies with it. “What the heck are those?” you may ask. The bill has an “enforcement authority”, who I’m afraid will be the CRTC.

If they have reasonable grounds to believe that an organization committed an offence under section 5 (by allowing young people to access explicit materials), the enforcement authority may issue a notice to them under this section.

The notice names the organization, tells them they have reasonable grounds to believe they are violating the Act – but does not have to tell them the evidence of this. And they essentially get to order the organization to take “steps that the enforcement authority considers necessary to ensure compliance with this Act”. It doesn’t say “THAT ARE NECESSARY”, but what the enforcement authority thinks is necessary. 

So the organization has twenty days to do all the things specified in the notice. They do get to make representations to the enforcement authority, but that doesn’t stop the clock. The 20 days keeps ticking. 

Here’s where the rubber hits the road. 

The “enforcement authority”, if they are not satisfied that the organization has taken the steps that the enforcement authority deems to be necessary, the enforcement authority gets to go to the Federal Court to get an order essentially blocking the site. Specifically, it says: “for an order requiring Internet service providers to prevent access to the sexually explicit material to young persons on the Internet in Canada.”

Any Internet service provider who would be subject to the order would be named as a respondent to the proceedings, and presumably can make submissions. But I can only think of one or two internet service providers who would do anything other than consent to the order, while privately cheering. 

Take a look at this section, which sets the criteria for the issuance of an order.

(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.

It says the Court MUST issue the order – not MAY, but MUST, if there are reasonable grounds to believe that the organization committed the offence under the Act. It doesn’t require proof beyond a reasonable doubt, it doesn’t even require proof by a civil standard (being on a balance of probabilities or more likely than not), and it doesn’t even require actual belief based on evidence that an offence was committed. It requires only “reasonable grounds to believe.” 

And it requires them to have not taken all the steps dictated by the enforcement authority within the extremely brief period of twenty days. 

Finally, the order MUST issue if the court determines “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”.

That is a really, really low bar for taking a site off the Canadian internet. 

But wait – there’s more!

The act specifically authorizes wide-ranging orders that would have the effect of blocking material that is not explicit and barring adult Canadians from seeking access to that same explicit material.

And if you look at the first sentence of subsection 5, it says “if the federal court determines that it is necessary to ensure that the sexually explicit material is not made available to young persons on the internet in Canada" it doesn't say anything about limiting the continuation of the offense or even tying it to the alleged offense set out in the notice. This is really poorly drafted and constructed.

Effect of order

(5) If the Federal Court determines that it is necessary to ensure that the sexually explicit material is not made available to young persons on the Internet in Canada, an order made under subsection (4) may have the effect of preventing persons in Canada from being able to access

(a) material other than sexually explicit material made available by the organization that has been given notice under subsection 8(1); or

(b) sexually explicit material made available by the organization that has been given notice under subsection 8(1) even if the person seeking to access the material is not a young person.

So, as we’ve seen, all of this hinges on companies verifying the age of users before allowing access to explicit material and the only substantial defence to the offence set out in the act is to use a government-dictated and approved “age verification method.” 

We need to remember, adult Canadians have an unquestioned right to access just about whatever they want, including explicit material.

The criteria for approving an age verification method may be the only bright spot in this otherwise dim Act. And it’s only somewhat bright.

Before prescribing an age-verification method, the government has a long list of things they have to consider. 

Specifically, 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.

They just have to consider these. They’re not “must haves”, but good to haves. And there’s no obligation on the part of the government to seek input from the Privacy Commissioner. 

So what’s the current state of age verification? It’s not uncommon to require a credit card, under the assumption that a person with a valid credit card is likely an adult. I’m not sure that’s the case any more and it may not be reliable. 

There’s also ID verification, often coupled with biometrics. You take a photo of your government-issued ID, take a selfie, and software reads the ID, confirms you’re over 18 and compares the photo on the ID to the photo you’ve taken. That involves collecting personal information from your ID, which very likely includes way more information than is necessary to confirm your age. It involves collecting your image, and it involves collecting and using the biometrics from your selfie and your ID.

Do you really want to provide your detailed personal information, that could readily be used for identity theft or fraud, to a porn site? Or a third party “age verification service”?

One scheme was proposed in the UK a number of years ago, in which you would go to a brick and mortar establishment like a pub or a post office, show your ID and be given a random looking code. That code would confirm that someone reliable checked your ID and determined you were of age. Of course, this becomes a persistent identifier that can be used to trace your steps across the internet. And I can imagine a black market in ID codes emerging pretty quickly.

And there are some important things missing. For example, is it universally applicable? Not everyone has government-issued ID. Some systems rely on having a valid credit card. Not everyone has one, let alone a bank account. 

The Bill’s sponsor and supporters say “smart people will come up with something” that is reliable and protects privacy. Why don’t we wait until we have that before considering passing a bill like this?

Let’s game this out with a hypothetical. Imagine, if you will, a massive online encyclopedia. It has thousands upon thousands – maybe millions – of articles, authored by thousands of volunteers. They cover the full range of subjects known to humanity, which of course includes reproduction and sexual health. A very small subset of the content they host and that their volunteers have created would fit into the category of “sexually explicit material”, but it is there, it exists and it is not age-gated. 

The operators of this encyclopedia very reasonably take the view that their mission is educational and they’re entitled to the protection of the legitimate purpose defence that is supposed to protect “science, medicine, education or the arts”.

They also take the view that providing access to their educational material in Canada is protected by the Charter of Rights and Freedoms. And they also reasonably take the view that the Charter protects the rights of Canadians to access the content they produce. 

But one day, a busy-body complains to the CRTC’s porn force that this online encyclopedia contains material that may be sexually explicit. The captain of the porn force drafts up a notice under Section 8, telling them that they must make sure that only people who have confirmed their age of majority via a government approved age verification technique can get access to explicit content. 

The encyclopedia writes back and says “please let us know what is your criteria for judging whether something is published ‘for a sexual purpose’, as required in many parts of the definition.” Also, they say, their purpose is entirely educational, so they have a legitimate purpose. And they also mention the Charter. Meanwhile, 20 days pass by.

So the porn force makes an application in the Federal Court and serves notice on all the major internet service providers. None of the internet service providers show up at the hearing. The publishers of the encyclopedia hire a really good Canadian internet lawyer, who tells the court that the encyclopedia’s purpose is legitimate and related to education. And they’re likely not engaged in “commercial activity”. And cutting off access to the encyclopedia would be unconstitutional as a violation of the Canadian Charter of Rights and Freedoms.  

The government lawyer, on behalf of the porn force, points to section 9(4) and says the court has no discretion to NOT issue the order if there are reasonable grounds to believe an offence has been committed and they didn’t follow the dictates set out in the Section 8 notice. 

Even with the encyclopedia's information about their purposes, the bar of “reasonable grounds to believe” is so low that paragraph (a) is met. Since the encyclopedia didn’t follow the Section 8 order because they were sure they had a defence to the charge, paragraph (b) is met. And an order to all Canadian ISPs to block access to the encyclopedia would have the effect set out in paragraph (c). 

Slam dunk. The Court must issue that order. But what about the fact that it would have the effect of cutting ALL Canadians off from the 99.999% of the site’s content that are not explicit? Tough. Paragraph (5) of Section 9 says that’s ok. No encyclopedia for you!

A Charter challenge would then be raised, and the whole thing would likely be declared unconstitutional as a violation of section 2(b) of the Charter that can’t be justified by section 1. 

In short – even if you think this Bill is well intentioned – it is heavy handed, poorly constructed, doesn’t take freedom of expression into account and imagines that we can manufacture some magical fairy dust technology that will make the obvious privacy issues disappear. In short, it is a blunt instrument that imagines it’ll fix the problem.   

And I should note that it will likely also have the effect of hurting older children who haven’t yet hit eighteen. The internet, its many communities and information repositories, are all critical for young people seeking legitimate information related to sexual health, sexual orientation and gender identity. Much of this information would fit into the broad definition of sexually explicit material, and it will be illegal for someone to allow them access via the internet. It will remain legal for them to get it in a bookstore or a library, but that’s not how young people generally access information in 2024.  

I expect some supporters of this bill will be more than happy to see it limit Canadians’ right to access lawful material.

It’s good to see a discussion of this important issue. Even if you’re in favour of the objectives of this Bill, it is deeply, deeply problematic. It should be parked until there’s a way to deal with this issue without potentially violating the privacy rights and Charter rights of Canadians.

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