The Senate committee studying Bill C-11 has ramped up the hours devoted to clause-by-clause review with amendments related to user generated content currently up for debate. However, earlier today, just prior to addressing the user content issue, the committee shockingly adopted an amendment that adds age verification for online undertakings to the Broadcasting Act. The amendment comes as a policy objective, meaning that it will fall to the CRTC to determine how to implement it. The implications are enormous since broadly defined the policy would require every online service that transmits or retransmits programs over the Internet (broadly defined to include all audio and audiovisual content) to establish age verification requirements to prevent child access to programs with explicit sexual activity. If the CRTC implements, the policy will surely be challenged as unconstitutional.
The amendment was proposed by Senator Julie Miville-Duchêne, who is also the sponsor of S-210, which envisions similar age verification requirements. The amendment states:
“(r.1) online undertakings shall implement methods such as age-verification methods to prevent children from accessing programs on the Internet that are devoted to depicting, for a sexual purpose, explicit sexual activity;”
The government voiced its opposition to the amendment, but it passed 7-5 with two abstentions. Depending on how the CRTC implements the policy, this could require age verification to access services such as Twitter and Google, which both enable access to this form of content. Age verification would raise a host of concerns, including privacy risks from collecting age data from millions of Canadians. I discussed this during my Senate appearance on S-210:
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.
This is a stunning addition to Bill C-11 that makes a bad bill dramatically worse. Further, it is discouraging that some of the same senators that have insisted on the risks to freedom of expression that arise from regulating user content in the bill would support implementing age verification for access that could easily extend to commonly used sites and services. If this survives further approvals (including the House of Commons), I don’t see how it survives a constitutional challenge.