While most of the Canadian media’s recent focus has been on Bill C-10, which aims to amend the Broadcasting Act to make Canadian content more discoverable, a far more insidious internet regulation bill has been debated in the Senate.
Bill S-203, An Act to restrict young persons’ online access to sexually explicit material, is the initiative of Independent Senator Julie Miville-Dechêne of Quebec, a former journalist and delegate to UNESCO. While much ink and many pixels have been spilled about the ludicrous notion that Bill C-10 would somehow turn the under-resourced Canadian Radio-Television and Telecommunications Commission (CRTC) into some kind of Liberal censorship bureau, S-203 would force internet service providers to become a panopticon of any sexually explicit material on the web. More frightening, it would also turn age-verification into a privacy nightmare that would track Canadians’ web-browsing habits—particularly when it comes to enjoying legal porn.
Miville-Dechêne has spent much of the debate insisting that this bill is about the protection of children from the harms of pornography. “Exposing minors, especially boys, to online porn is associated with a number of harmful effects: addiction, aggressive sexual behaviours, fear, anxiety and an increase in sexist beliefs that particularly affect girls and women,” she said while explaining the purpose of the bill.
In an average parliament, this kind of bill would have languished on the Order Paper. As with many Senate public bills (no matter how dubious the subject matter), they are allowed to go to committee to get a courtesy hearing. If it’s a bill that has to go to the Legal and Constitutional Affairs Committee, one tends to say a prayer, light a candle and let it go quietly into the night. It’s normally the busiest committee, both in terms of government legislation and private members’ bills coming from the House of Commons, so time available for Senate public bills is at a premium; most never get their hearings for lack of time.
“Bill S-203 got the time to see debate and committee study, which illuminated just how much of a threat to Canadians’ privacy rights it poses.”
In the current situation, however, all of the government’s justice bills are languishing as they focus on other priorities in a recalcitrant House: the Conservatives have been slow-walking every bill they possibly can, and were aided in doing so by the Bloc and the NDP until very recently, when both realized that there were bills they wanted to see advanced. That gave Bill S-203 the time and opportunity to see debate and committee study—study that illuminated just how much of a threat to Canadians’ privacy rights this bill poses.
While the text of the bill is not prescriptive in terms of the mechanisms to be used for age verification when accessing sexually explicit content online (that will be left up to the regulatory process for bureaucrats to develop in consultation with stakeholders), several options were explored, including tools like facial recognition or analysis. The representative from one company who appeared as a witness claimed that their analysis technology is within 1.5 years of accuracy for 13- to 25-year-olds, and that they have been testing this in the U.S. market at self-checkouts for age-restricted goods. While many people of colour can attest that facial recognition technology is less accurate for them, this company insisted that their technology had no disadvantages for gender or skin tone, and that the scanned images are instantly deleted—but we’ve heard that claim before.
Independent Senator Paula Simons from Alberta, herself a former journalist, quite rightly pointed out that this is alarming, no matter what one thinks of online porn.
“It seemed to me very problematic that you are conditioning people that there is an expectation that they have to provide their face for facial analysis or facial recognition, whatever you choose to call it, and that we are leading to acceptance of the surveillance culture by shifting the paradigm of what the expectations of privacy in the public realm might be,” she said at the committee.
The federal privacy commissioner, Daniel Therrien, also sounded the alarm in his testimony, noting that regardless of the mechanism chosen, the user will ultimately be required to provide some amount of personal information.
“The goal of the bill is not only to limit access of youth to sexually explicit content, but to limit access for everyone.”
“If a technology is well designed, it can be useful and privacy-protective. But if it is badly designed, and in the worst-case scenario leads to the collection of information, that can lead to essentially surveillance,” Therrien said.
Another concern heard at the committee came from Susan Davis, a sex worker and director of the BC Coalition of Experiential Communities, who said that this kind of technology will have a negative impact on sex workers who rely on sexually explicit ads.
“The goal of the bill is not only to limit access of youth to sexually explicit content, but to limit access to sexually explicit content for everyone,” Davis warned. “The bill itself doesn’t give any definition of what is sexually explicit. What exactly are the limitations on this? Is it narrowly targeting adult film or is it broadly targeting the entire industry?
“My assumption is that it’s targeting the entire industry,” Davis continued. “Do we want to see sex workers forced back to the street and removed from the internet completely? Is this the goal? For me, there is nothing we could add to this bill that would make it any less dangerous for my community especially given the migration towards online work because of the pandemic, and even before that.”
Davis said that what is really needed is good sexual education in the country; without it, the bill is pointless. “All you’re going to do is narrow choices for youth who are trying to explore their sexuality under the umbrella of trying to protect children and put nothing in the void or in place of that,” Davis said.
Davis has a good point. But education is the domain of the provinces, and there has been no hotter debate in many of those provinces—Ontario especially—than trying to modernize sex-ed curricula for the 21st century. Given how many provinces currently have conservative governments, getting some kind of consensus on advancing the need for these programs across the country is a very fraught concept.
Additionally, this bill, should it pass, would have an extremely detrimental impact on queer and trans youth, given how much benign LGBTQ2S+ material online is treated as being either quasi-pornographic or 18+ only by large segments of mainstream society who remain censorious. In fact, they would be locked out of materials that may help them come to terms with their own sexualities or gender identities.
“This bill, should it pass, would have an extremely detrimental impact on queer and trans youth.”
There are some doubts as to whether this bill will make it to a third reading vote before the summer, or if enough senators are sold on the “think of the children” aspects of the bill to the detriment of the privacy violations and surveillance of one’s web habits—not to mention the impact this would have on sex workers. It would still need to pass in the House of Commons, where it remains to be seen how sympathetic MPs will be to Miville-Dechêne’s concerns.
Quebec Senator Renée Dupuis made perhaps the most salient observation of all on this bill.
“I think we have a problem,” Dupuis said. “English has a very interesting expression, ‘feel-good legislation,’ which ultimately leads to more problems than it solves…I don’t know whether we are doing more than that with Bill S-203.”
If anything, that’s an understatement.
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