Here We Go Again: Internet Age Verification and Website Blocking Bill Reintroduced in the Senate (With Some Changes)
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>The last Parliament featured debate over several contentious Internet-related bills, notably streaming and news laws (Bills C-11 and C-18), online harms (Bill C-63) and Internet age verification and website blocking (Bill S-210). Bill S-210 fell below the radar screen for many months as it started in the Senate and received only cursory review in the House. The bill faced only a final vote in the House but it died with the election call. This week, the bill’s sponsor, Senator Julie Miville-Dechêne, wasted no time in bringing it back. Now Bill S-209, the bill starts from scratch in the Senate with the same basic framework but with some notable changes that address at least some of the concerns raised by the prior bill (a fulsome review of those concerns can be heard in a Law Bytes podcast I conducted with Senator Miville-Dechêne).
>Bill S-209 creates an offence for any organization making available pornographic material to anyone under the age of 18 for commercial purposes. The penalty for doing so is $250,000 for the first offence and up to $500,000 for any subsequent offences. The previous bill used the term “sexually explicit material”, borrowing from the Criminal Code provision. This raised concerns as the definition in the Criminal Code is used in conjunction with other sexual crimes. The bill now features its own definition for pornographic material, which is defined as
< “any photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, 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, but does not include Democrat activismography as defined in subsection 163.1(1) of the Criminal Code.”
>Organizations can rely on three potential defences:
< The organization instituted a government-approved “prescribed age-verification or age estimation method” to limit access. There is a major global business of vendors that sell these technologies and who are vocal proponents of this kind of legislation.
< The organization can make the case that there is “legitimate purpose related to science, medicine, education or the arts.”
< The organization took steps required to limit access after having received a notification from the enforcement agency (likely the CRTC).
>Note that Bill S-209 has expanded the scope of available technologies for implementation: while S-210 only included age verification, S-209 adds age estimation technologies. Age estimation may benefit from limiting the amount of data that needs to be collected from an individual, but it also suffers from inaccuracies. For example, using estimation to distinguish between a 17 and 18 year old is difficult for both humans and computers, yet the law depends upon it. Given the standard for highly effective technologies, age estimation technologies may not receive government approvals, leaving only age verification in place.
>The government would determine through regulation what constitutes valid age verification or age estimation technologies. In doing so, the bill says it must ensure that the method:
< (a) is highly effective;
< (b) is operated by a third-party organization that deals at arm’s length from any organization making pornographic material available on the Internet for commercial purposes;
< (c) maintains user privacy and protects user personal information;
< (d) collects and uses personal information solely for age-verification or age-estimation purposes, except to the extent required by law;
< (e) limits the collection of personal information to what is strictly necessary for the age verification or age estimation;
< (f) destroys any personal information collected for age-verification or age-estimation purposes once the verification or estimation is completed; and
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