Privacy commissioner flags excessive site blocking, privacy risks in age verification bill

A Senate bill aimed at protecting children from the harms of exposure to online pornography risks stepping on the free speech and privacy rights of Canadians, according to the national privacy watchdog and a government official. Monday evening, after several delays from the scheduled start date of May 6, the House of Commons’ public safety and national security committee began studying Bill S-210, an act to restrict young persons’ online access to sexually explicit material. Privacy commissioner Philippe Dufresne and Canadian Heritage’s associate assistant deputy minister Owen Ripley criticized the bill’s broad scope and loose privacy protections during their witness testimonies. Bill S-210 would mandate online services to prevent sexually explicit material from being made available to minors by implementing age verification requirements, or face hefty fines and website blocking. “The bill is highly problematic for a number of reasons, including a scope that is much too broad, both in terms of regulated services as well as regulated content,” said Ripley. The bill relies on the Criminal Code’s definition of “sexually explicit material,” which is not strictly limited to pornography, explained the witnesses. This means it runs the risk of roping in mainstream entertainment services like Netflix and Disney Plus, creating “a good deal of business uncertainty.” The definition “makes sense in the context of the criminal code, where it's speaking to a variety of offenses, including when adults may be engaging with minors using sexually explicit content,” said Ripley. However, in the bill's context of it being “made available” online, it is too broad. “It's not the same. It's apples and oranges,” he said. “Mandating age verification requirements for this scope of services and content would have far reaching implications for how Canadians access and use the internet,” said Ripley. Dufresne agreed, noting that the definition “raises question of what will be captured.” “Age verification is appropriate in contexts,” said the privacy commissioner, urging lawmakers to ensure measures in the bill, as well as any future regulations, are both necessary and proportionate. He recommended narrowing the bill down by restricting the age verification requirement to websites that “primarily provide sexually explicit material for commercial purposes.” Such a threshold or quantitative requirement would help prevent other content from being inadvertently blocked. Dufresne encouraged a risk-based approach to the issue, suggesting a regime in which stronger tools would be used depending on the level of risk to individuals in certain contexts. He referred to the United Kingdom’s age appropriate design code, which requires online services to comply with certain protection laws for children’s data. “Age verification, that's a higher level tool than parental or education or outreach,” he explained. The bill does not specify what age verification methods would be required, those would be decided through regulations. However, it does state that the governor in council “must consider” whether the method meets certain criteria, including if it is reliable, maintains user privacy, and destroys any personal information collected. Dufresne recommended stronger criteria to make sure that Canadians will be asked to provide the least amount of personal information possible. He also called for explicit prohibitions against the tracking or profiling of individuals. Ripley took aim at the bill’s use of website blocking as its main enforcement method, arguing that it is not an appropriate and proportional response to the proposed framework. “This would go against a right to information and right for all Canadians to access content online,” he said, insisting that non-sexual content would surely be captured. “It's unclear whether Parliament wishes to create a Criminal Code violation or a regulatory framework,” he continued, critical of the bill’s “structural incoherence.” “It is a very binary framework that is being set up” leaving the entity that would be charged to administer it with “very few enforcement mechanisms” to deal with any nuances, the deputy minister said. He noted that the bill does not state what body would be responsible for enforcing the legislation. The deputy minister instead advocated in support of the government's proposed online harms act, Bill C-63. If passed, it would impose several responsibilities on platforms, including a duty to protect children through age-appropriate design. He argued that the online harms bill and the regulatory framework it would create are much more flexible and could accommodate questions of whether certain services should use age verification methods. "The government's view is that that framework has the appropriate safeguards in place," said Ripley, adding that — unlike Bill S-210 — it would create the Digital Safety Commission, a regulator with the "mandate and the necessary expertise" to manage it. – Reporting by Phalen Tynes-MacDonald at pcreed@thewirereport.ca

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Privacy commissioner flags excessive site blocking, privacy risks in age verification bill

News | May 29, 2024

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