Canada’s Attempt to Regulate Sexual Content Online Ignores Technical and Historical Realities

Canadian Senate Bill S-203, AKA the “Protecting Young Persons from Exposure to Pornography Act,” is another woefully misguided proposal aimed at regulating sexual content online. To say the least, this bill fails to understand how the internet functions and would be seriously damaging to online expression and privacy. It’s bad in a variety of ways, but there are three specific problems that need to be laid out:  1) technical impracticality, 2) competition harms, and 3) privacy and security.

First, S-203 would make any person or company criminally liable for any time an underage user engages with sexual content through its service. The law applies even if the person or company believed the user to be an adult, unless the person or company “implemented a prescribed age-verification method.”

Second, the bill seemingly imposes this burden on a broad swath of the internet stack. S-203 would criminalize the acts of independent performers, artists, blogs, social media, message boards, email providers, and any other intermediary or service in the stack that is in some way “for commercial purposes” and “makes available sexually explicit material on the Internet to a young person.” The only meaningful defense against the financial penalties that a person or company could assert would be to verify the legal adult age of every user and then store that data.

The bill would likely force many companies to simply eliminate sexual content

The sheer amount of technical infrastructure it would take for such a vast portion of the internet to “implement a prescribed age-verification method” would be costly and overwhelmingly complicated. It would also introduce many security concerns that weren’t previously there. Even if every platform had server side storage with robust security posture, processing high level personally identifiable information (PII) on the client side would be a treasure trove for anyone with a bit of app exploitation skills. And then if this did create a market space for third-party proprietary solutions to take care of a secure age verification system, the financial burden would only advantage the largest players online. Not only that, it’s ahistorical to assume that younger teenagers wouldn’t figure out ways to hack past whatever age verification system is propped up.

Then there’s the privacy angle. It’s ludicrous to expect all adult users to provide private personal information every time they log onto an app that might contain sexual content. The implementation of verification schemes in contexts like this may vary on how far privacy intrusions go, but it generally plays out as a cat and mouse game that brings surveillance and security threats instead of responding to initial concerns. The more that a verification system fails, the more privacy-invasive measures are taken to avoid criminal liability.

Because of the problems of implementing age verification, the bill would likely force many companies to simply eliminate sexual content instead of carrying the huge risk that an underage user will access it. But even a company that wanted to eliminate prohibited sexual content would face significant obstacles in doing so if they, like much of the internet, host user-generated content. It is difficult to detect and define the prohibited sexual content, and even more difficult when the bill recognizes that the law is not violated if such material “has a legitimate purpose related to science, medicine, education or the arts.” There is no automated tool that can make such distinctions; the inevitable result is that protected materials will be removed out of an abundance of caution. And history teaches us that the results are often sexist, misogynist, racist, LGBT-phobic, ableist, and so on. It is a feature, not a bug, that there is no one-size-fits-all way to neatly define what is and isn’t sexual content.

Ultimately, Canadian Senate Bill S-203 is another in a long line of morally patronizing legislation that doesn’t understand how the internet works. Even if there were a way to keep minors away from sexual content, there is no way without vast collateral damage. Sen. Julie Miville-Dechêne, who introduced the bill, stated “it makes no sense that the commercial porn platforms don’t verify age. I think it’s time to legislate.” We gently recommend that next time her first thought be to consult with experts.