Government will not publish submissions received
By Amanda OYE
GATINEAU, QC – Comments submitted to the federal government’s consultation into harmful content online highlight a multitude of issues with its proposals for addressing the issue as well as with the consultation process itself.
The submissions to the consultation are not easy to come by. The deadline for comments passed in September, but the government decided it would not publish the ones it received.
A spokesperson for Canadian Heritage told Cartt.ca via email the submissions will only be available if an Access to Information and Privacy (ATIP) request is made because the submissions “may contain confidential business information.” (ATIP requests, however, can take a long time to yield results).
As a way around this, some individuals and organizations have published their own submissions online and Cartt.ca requested copies from others.
Among the submissions obtained by Cartt.ca is one from several large telecommunication service providers (TSPs) who submitted as a group rather than individually. This consortium includes Bell Canada, Rogers Communications, Shaw Communications, Telus Communications, Cogeco Communications and Quebecor Media.
(CNOC and CCSA, which represent independent Internet service providers across the country both confirmed to Cartt.ca via email they did not submit anything to the consultation. Neither did SaskTel.)
The submission made by the consortium of large TSPs expressed concern with “the lack of clarity with respect to the deadline for submissions,” and argued “the consultation period was excessively short.”
The TSPs indicated that because of this, their comments only represent “preliminary feedback,” and they “strongly recommend that the consultation be extended.”
Open Media, which published its submission on its website, shared these concerns, calling the timeline for public comment “unreasonably short” and noting the deadline for comment was not included on the consultation page.
Both the consortium of TSPs and Open Media also pointed out the poor timing of the consultation, taking issue with the fact that it overlapped with the federal election. Open Media called this timing “deeply inappropriate,” and argued that “once a federal election was called, this entire consultation should have immediately been rescheduled.”
Beyond noting these concerns about the consultation process, the submissions take issue with government’s proposals themselves.
Notably, there are considerable concerns about the government’s site-blocking proposal, which would require telecommunications service providers to block sites (either entirely or partially) in cases where there is repeated non-compliance with orders regarding the removal of terrorist and child sexual exploitation content.
In TekSavvy’s submission, which was obtained by Cartt.ca, the company said it “is of the view that site-blocking as an enforcement tool is generally simultaneously overly broad (as a result of the real risk of blocking legitimate content) while also ineffective.”
The only form of site-blocking used in Canada “requires ISPs to block access to specific domain names by removing those domain names from the ISP’s domain name system,” according to TekSavvy’s submission.
However, this method of site blocking is easily circumvented as are more sophisticated forms of site-blocking, TekSavvy argued.
The consortium of TSPs also noted in their submission that when they have previously been required by Court orders to disable access to content, “these orders target specific domain names or IP addresses.”
The TSPs indicated they “generally lack the technical ability to disable access to information within the platform of an Online Communication Service provider (OCSP), such as the specific posts or comments made by the users of these platforms.”
As such, they will have to disable “access to the entire platform or site that uses that name or IP address,” which will “affect any lawful content hosted on the platform or server in addition to the illegal content that is the subject of the intervention.”
The consortium of TSPs argued the risks associated with this means they “must be legally indemnified against civil damages and other consequences in the event that complying with any legal requirement, including but not limited to a Court order, has such an effect on legitimate content.”
Another issue with government’s site-blocking proposal brought up in the submissions is its potential to disadvantage smaller Internet service providers.
Public Interest Advocacy Centre’s (PIAC) submission, which is one of several posted online by Michael Geist (who is tracking the submissions), argued a mandatory site-blocking regime has the potential to “disadvantage smaller or newer ISPs, who may be less able to absorb the cost of updating their networks to enable blocking.”
PIAC called on the government to “be mindful of placing additional burden on ISPs, particularly smaller or newer ones, in order to ensure the public has access to adequate levels of choice and competition is sufficient to drive innovation.”
The consortium of TSPs also took issue with the potential cost of the government’s proposal in its submission and argued they must “be able to recover their reasonable costs of complying with judicial orders to disclose subscriber information and transmission data, disable access to online content or facilitate other types of lawful interception of telecommunications.”
Paying for “such costs could have negative impacts on TSPs’ customers as well as TSPs’ resources available to build, upgrade and maintain network infrastructure,” their submission reads.
The TSPs argued “it is essential that the modernized Canadian legal framework for addressing harmful content online does not create additional obligations or liability for carriers, which could impact internet costs and disincentivize Canadian TSPs from making the investments in 5G networks required to harness the next wave of innovation in Canada.”
Concerns about the government proposals to address harmful content online extend beyond site-blocking.
TekSavvy, for example, also discussed concerns about moderation in its submission, arguing the government’s proposals will likely lead to the over-censorship of content because the 24-hour window for moderation allotted in the proposal will almost certainly necessitate an automated system and does not leave enough time for content to be rigorously and thoughtfully reviewed when warranted.
Open Media in its submission further took issue with the consultation broadly speaking, stating it “does not have the features of a true public consultation.” The organization argued rather than soliciting input, “the technical paper appears to be a list of what the government will do, regardless of what it hears during the consultation period.”
We may not have to wait long to see how accurate this interpretation of the intent of the consultation is given the Liberal Party’s recent election platform promised if re-elected they would introduce legislation dealing with harmful content online within 100 days.
