Bill C-11, the government’s online streaming bill, is rightly garnering increasing attention, but there is a private member’s Senate bill that should also be on the radar screen. Bill S-210, a follow-up to S-203, is a bill that purports to restrict underage access to sexually explicit material. Sponsored by Senator Miville-Dechêne, a former CBC journalist appointed to the Senate in 2018, the bill would require age verification requirements for sites (likely backed by face recognition technologies) and mandated website blocking for sites that fail to comply with the verification requirements.

I appeared before the Senate Standing Committee on Legal and Constitutional Affairs yesterday to discuss the bill, warning that face recognition technologies raise serious privacy risks and that website blocking would have negative consequences for freedom of expression. Further, I emphasized how incredibly broadly the bill is drafted. Widely used sites and services such as Twitter or Reddit are captured by the bill, raising the possibility of age verification to send a tweet or read a Reddit post. In fact, during some of the panel discussion during the day, one Senator expressed concern about Google searches revealing explicit images and wondering whether the police were involved. My opening statement is posted below.

Appearance before the Senate Standing Committee on Legal and Constitutional Affairs, February 9, 2022

Good afternoon. My name is Michael Geist. I’m a law professor at the University of Ottawa where I hold the Canada Research Chair in Internet and E-commerce Law and I’m a member of the Centre for Law, Technology and Society. I appear in a personal capacity representing only my own views.

I’d like to thank the committee for the invitation to appear on Bill S-210. I should start by noting that I am not averse to addressing the concerns identified in the bill. I have three teenage and early 20s children who were fortunate to grow up in a house where computers and Internet access were ubiquitous. The concerns of this parent – like so many others – included concerns about exposure to content inappropriate for their age. I believed then, and believe now, that addressing the issue was my responsibility and that included education, frank conversations, and an assessment of whether the use of internal blocking tools or filters were needed.

Further, many years ago when the government worked together with Internet providers to establish Project Cleanfeed Canada, an initiative to block access to the very worst child pornography images, I was a public supporter of the initiative, which struck me as appropriate given that the content itself was unlawful and the blocking was limited to specific images, not entire websites.

But while blocking specific illegal imagery may be supportable, this bill is not. Indeed, by bringing together website blocking, face recognition technologies, and stunning overbreadth that would capture numerous mainstream services, the bill isn’t just a slippery slope, it is an avalanche. There are many concerns, but in my limited time let me focus on three.

First, the reliance on website blocking. I realize that there have been some amendments in the bill to engage the courts, but the reliance on blocking sites as an enforcement mechanism remains troubling.

The danger of over-blocking legitimate websites raises serious freedom of expression concerns, particularly since experience suggests that over-blocking is a likely outcome of blocking systems. We’ve seen this in Canada dating back to 2005 when Telus intended to block access to a single site supporting a union action and blocked hundreds of other sites in the process.

The costs associated with site blocking can run into the millions of dollars with significant investments in blocking technologies and services, employee time to implement blocking orders, and associated service issues. The result would be higher consumer costs and less affordable access in one of the highest cost countries for Internet services in the world.

In fact, as part of the government’s recent consultation on online harms, the prospect of website blocking as a measure was widely criticized. Canadian Heritage’s what we heard report notes:

Multiple respondents criticized the proposal for allowing the blocking of entire platforms, advocating instead for a more targeted and human rights compliant proposal of targeting specific webpages. A few advocates for sex workers explained that the overbreadth of the power was particularly worrisome to them.

Second, I have similarly serious concerns about the reliance on age verification technologies, particularly the potential use of face recognition. We are only starting to come to grips with the risks associated with such technologies which raise privacy concerns, fears of bias and error, security risks, and the potential for misuse. To actively legislate their use runs directly counter to the current movement that seeks to restrict the use of such technologies until an appropriate and effective regulatory framework is developed. There may be some companies that do it better than others, but in the absence of a regulatory framework, the last thing we should be doing is effectively mandating its use.

Third, the overbreadth of this bill is simply stunning. While I realize that proponents may have certain sites in mind, we should recognize that current definition covers some of the most popular and commonly used sites and services on the Internet today. I suspect most Senators have Twitter accounts. I hope there is awareness that explicit content is easily accessible on that service. Is it the intent to require all Twitter users to engage in age verification? If Twitter declines to implement such a system as they surely would, is the plan to require all ISPs to block access for all Canadians? The same is true for Snapchat where this content can be found or Reddit, where a NSFW section is full of explicit content. Will every Canadian be required to effectively prove their age in order to tweet or read a post on Reddit? Are all these sites to be blocked in Canada?  Further, as referenced in the previous panel, will every Canadian be required to undergo age verification to use Google? Will kids in school be blocked from conducting Internet searches?

These are just some of the problems with the bill. Potentially vesting much of the bill’s responsibility to Canadian Heritage when this is surely a public safety matter or, even more, handing enforcement to a CRTC already facing serious credibility concerns only makes matters worse.

I recognize the good intentions with this bill. Respectfully, I believe the risks and harms far outweigh the benefits.

I look forward to your questions.