Sharon Polsky had purchased plane tickets and a hotel stay in Ottawa after being invited to testify as an expert in the House of Commons on Bill S-210, a controversial bill that aims to restrict minors’ online access to pornography.
But a few days before the committee hearing, Polsky was told not to come.
“The clerk said, ‘There’s no point in you coming because we don’t know what’s going to happen on Thursday, but it looks like your invitation will be reinstated at another time’,” said Polsky, who is president of the Privacy & Access Council of Canada, an organization that supports Canadians’ privacy and data protection.
Civil liberty groups, privacy experts and Liberals are accusing the Conservatives of delaying a parliamentary committee’s study of Bill S-210 by seeking changes to the committee’s agendas. The changes the Conservatives are seeking are primarily aimed at getting the Liberals to release a report on the prison transfer of convicted serial killer Paul Bernardo.
The Liberals, who oppose Bill S-210 in its current form and would like to see it amended, have thus far refused to release the report.
Experts say Bill S-210 jeopardizes the safety of Canadians’ personal information and allows for government overreach. They are concerned the bill could go to a final vote — and pass — without having been subject to expert discussion and amendment in the committee hearing phase.
In a previous vote on Bill S-210, the Conservatives, Bloc Québécois and New Democratic Party — who collectively hold 174 seats — supported the bill. Fifteen of 156 Liberals also voted in favour of it.
“The bill raises very serious privacy concerns,” said Michael Geist, a professor and Canada Research Chair in Internet and E-commerce Law at the University of Ottawa.
Geist notes that the senator who authored the private members’ bill, Senator Julie Miville-Dechêne, was insistent that any concerns about the bill could be addressed during the committee process.
“The fact that we now find ourselves in a space where that may not happen, where the committee may ultimately be filibustered through all the potential hearings in this bill, is deeply troubling.”
‘Chaos and uncertainty’
Bill S-210 would make it a crime for commercial, sexually-explicit content to be made available to youth online. The bill will require digital organizations with pornographic content to install an age-verification method for all users to filter out youth under 18, and impose liability on those that fail to do so.
The language of the bill encompasses a broad range of digital organizations, says Raphael Vagliano, legal officer at the Centre for Law and Democracy, a Canadian human rights advocacy organization.
Social media companies, websites, search engines and internet service providers such as Fido, Bell or Rogers, may be required to comply with the bill, said Vagliano. Those that do not comply could be subject to substantial fines. The fine for a first offence would be up to $250,000. The bill also allows the government to shut down any digital organization that fails to comply.
The bill does not define which digital organizations could be subject to fines for non-compliance. For example, if a teen saw pornographic content on Instagram using Google’s Chrome web browser and Fido internet, it is not clear which organization would be liable.
Canadians may have to undergo an age verification method before accessing social media, websites or the internet as a whole, said David Fraser, board member of the Canadian Internet Society, an internet advocacy organization.
“Any scenario that requires a person to prove their age, which inherently requires the collection, and use of personal information … has a dramatically negative impact on the free internet,” he said.
Matt Hatfield, executive director at the advocacy organization OpenMedia, is concerned the bill may create a “chilling” effect on Canada’s tech industry. Internet service providers and digital organizations could reduce their investments or pull out of Canada entirely if they deem it too risky to operate.
“[It] could create a lot of chaos and uncertainty and economic damage at a time that Canada really can’t afford to have that happen,” said Hatfield, whose organization advocates for open communication systems in Canada.
“I do worry that we can see a whole bunch of ripple consequences as businesses try to respond to what they fear may happen,” said Hatfield. “And that wouldn’t happen if the [bill] got any degree of actual study.”
‘They don’t get it’
Bill S-210 differs from the Liberals’ online harms bill, Bill C‑63, which would require large social media companies to address harmful content on their platforms, among other things. The Conservative Party opposes the online harms bill.
Conservative MP Karen Vecchio, who is sponsoring Bill S-210 in the House of Commons, said pornography can harm children’s brain development and negatively influence sexual behaviour.
“Things like pornography should not be put into [childrens’] brains until they are an adult,” she said ahead of the bill’s second vote on Dec. 13, 2023.
When questioned what an age verification method would look like, Vecchio touted a third-party service that would provide a “token to verify that that person is of age.” Vecchio said she did not know what the very best method would be, but noted the matter would be studied in committee hearings.
“The lawmakers… they have privately said in conversation with me that they don’t understand the technology,” said Polsky of the Privacy & Access Council of Canada. “They don’t get it — but they’re passing these laws that they think are going to be the answer.”
The Liberals have criticized the Conservatives for supporting the porn verification bill, citing risks over the safety of Canadians’ personal information.
Conservatives have claimed those opposed to Bill S-210 are siding with those who favour making pornography available to children.
“It’s disappointing that it may go to [the House of Commons] where it will be simply a political vote,” said Fraser, who is also an internet, technology and privacy lawyer at McInnes Cooper law firm. “‘You’re either with us or you’re with the pornographers,’ which is how some of the rhetoric seems to be going.”
“It’s more nuanced than that… the House should really make sure that all informed voices are heard.”
‘Useful, valuable perspectives’
During the last three committee hearings where Bill S-210 was meant to be studied, Conservatives on the committee argued for new items to be added to the committee’s agenda before the committee could proceed to talks about the bill.
Conservative MP Garnett Genuis said the committee would “be able to come to an agreement fairly quickly on how to proceed” if Liberals agree to release a report on the controversial transfer of Paul Bernardo to a medium-security prison in May 2023.
The amendment reads that the Bernado report be released before the committee holds “any other hearings or present any reports to the House.”
Conservatives have criticized the Liberal government for failing to stop or reverse the transfer decision. The Liberals have said the Correctional Service of Canada is an independent body and that it did not participate in the decision to transfer Bernardo.
Multiple sources say the deadline for studying Bill S-210 in committee is early June. Many also said a request has been made to extend this study period. A clerk for the committee did not respond to requests for comment.
Fraser says many organizations are concerned with the situation in the committee.
“There are a number of… experts in the area, who have useful, valuable perspectives that can be and really should be brought to bear on any sort of discussion related to this bill,” he said.
“It seems like whatever the process is — and whatever the motivation is — it is preventing the committee from hearing those informed opinions and advice from experts that could hopefully mitigate some of the very harmful effects in the bill as currently written.”
