Digital Safety Act seen as unconstitutional, unworkable

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Introduced in June, the Digital Safety Act aims to reduce online harms, particularly for children, and impose a duty of responsibility on social media platforms. However, observers say it’s a blank cheque for the federal government to regulate.

While Bill C-34 would create a new Digital Safety Commission to oversee much of the regulation of online spaces, its intention to ban youth under 16 from using social media platforms unless the sites can demonstrate a child-safe environment has drawn most of the attention. This ban would extend to AI chatbots, which are under scrutiny following their alleged role in the Tumbler Ridge shooting in British Columbia earlier this year. 

The proposed law reworks portions of the previous government’s online harms legislation and incorporates elements of a Senate public bill that would establish age-verification measures to prevent anyone under 18 from accessing explicit material online.

Michael Karanicolas, an associate professor at Dalhousie’s Schulich School of Law, says banning children from social media may not be the best approach.  

“Onboarding young people in responsible and healthy uses of these platforms is a critical component of technological literacy,” he says. 

“It's hard to achieve that while denying them access to them until they turn 16.”

‘A blank cheque to regulate’

Anaïs Brussières McNicoll, the director of the fundamental freedoms program at the Canadian Civil Liberties Association, says that while greater transparency and accountability from tech giants is long overdue, the bill is a blank cheque for the government to regulate.

“This is the wrong answer to a real problem,” she says. 

“The solution lies in clear, targeted rules that parliamentarians, the population, and civil society could debate and agree on.”

Instead, the bill contains a long list of broad powers to be granted to the government and the new regulator, along with open-ended obligations for regulated services. They're so broad, Brussières McNicoll says, providers could be tempted to overcomply at the expense of users’ freedom of association and privacy rights.

She notes that the bill includes provisions stating that the fulfilment of duties by social media operators does not require them to unjustifiably limit freedom of expression. 

“From our perspective, that should be the other way around. It should be prohibited to unjustifiably limit freedom of expression while attempting to fulfil their duties.”

Bumping up against the Charter

When it comes to the social media ban for youth, Brussières McNicoll says what is required is age-appropriate design, such as privacy-by-default, prohibition from profiling, and limits on endless scrolling. However, this legislation leaves most of this to future regulation and creates a mandatory approach to age that fosters significant risks. What’s more, it violates section 2(b) of the Charter because of the limits on free expression.

“Banning people from social media platforms has a direct impact on their ability to express themselves, and also to receive information,” she says.

Kyla Lee of Acumen Law in BC, and a former chair of the CBA’s criminal justice section, says the Charter infringement arising from restricting the free expression of people under 16 is her biggest concern.

“The Charter doesn’t just apply to adults,” she says. 

Lee fully expects a constitutional challenge because the blanket prohibition on people under 16 goes too far. 

She says many platforms have very good purposes for young people. She points to her own social media, through which she shares information about the law, explains government bills, and outlines rights when dealing with police.

Restricting social media access will deprive people under 16 of that medium and form of communication, which Lee says is the dominant way many people disseminate and consume news.

“You’re actually cutting people off … from information at the same time as you’re limiting their free expression rights.”

Punting implementation down the road

Michael Geist, the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, says the bill, as currently drafted, creates significant uncertainty. On his blog, he’s tracked 50 different decision points that will be made after the bill comes into force: 19 future cabinet decisions and 31 decisions that will be required of the new Digital Safety Commission.

“They punted on many implementation issues,” Geist says, and points to the way the Online Streaming Act also created uncertainty while waiting on the Canadian Radio-television and Telecommunications Commission to make key decisions. 

“(It’s) a risky approach to take,” he says.

Another major issue is the rules around age verification — a process Karanicolas says destroys anonymity and privacy.

“Age verification systems are meant to delete all the data they collect as part of that process, but also retain data to enable monitoring of compliance, which seems like a conflict to me.”

Geist says the legislation itself acknowledges the privacy and security risks, given the mandated consultation with the privacy commissioner to establish the standards.

However, the 18-month timeline set out in the legislation means there can be no consultation with the privacy commissioner, because under Bill C-36, which was introduced in June and focuses on digital privacy, that role is being stripped of these responsibilities and put under the purview of the Digital Safety Commission, which won’t exist within the specified timeframe.

“That means you end up with age verification for everyone, without having accounted for privacy,” says Geist.

“It also means that the arguments that this is temporary and designed to be an incentive to ensure that you’ve got a safe social media environment are just factually untrue.”

So, for a platform like YouTube Kids, which is widely acknowledged to be a safe space, he says their ability to get exempted is years down the road. 

“Effectively, you need to kick all of your users out and age-verify them.”

Geist says the government could instead have given the Commission the power to impose mandatory age verification only as a penalty if the platform fails to establish a safe space.

The problem with age-verification technology

Geist has previously characterized age-verification technology for social media and explicit materials as a “nerd harder” problem—the false belief that it simply requires more effort to reach a technological solution that may never exist. 

In some ways, Bill 34’s efforts are “worse,” he says.

“This government winks at safeguards in C-34, and then takes them away with their (digital privacy) plan of implementation in C-36.”

Because age-verification technologies don’t really work, it will require much more invasive methods, whether that’s uploading IDs or using age-estimation technology. The latter doesn’t work well with racialized or trans people, nor can it accurately differentiate between 15, 16 and 17-year-olds.

“The government’s insistence that this take effect even without the Commission in place…is putting it into the wild and hoping that we don’t end up with a Discord-style breach where millions of Canadians find their personal information, like government-issued IDs, are breached,” Geist says.

While Geist thinks the government’s 18-month timeline to set up the Commission and complete its regulatory process is overly optimistic, Lee says it could mean years before there is clarity. Her concern is compounded by how much of the bill is left up to future regulation.

“I don’t ever like seeing anything where there are big question marks around the exercise of people’s constitutionally-protected rights,” she says. 

“Leaving so much of it to regulation and saying we’ll sort it out later makes it hard for the bill to go through its ordinary stages when you’re debating something that is just a shell of what it’s ultimately going to look like.”