249. Michael Geist: Law Professor WARNS Against Canada's New Internet Laws

Michael Geist joins to explain Canada’s internet laws, Bill C-34, Bill C-22, age verification, encryption, VPNs, privacy, online safety, censorship concerns, and whether new regulations meant to protect children could reshape speech and surveillance in Canada with host Aaron Pete.

Transcript

SPEAKER_01 0:00

Bill C thirty four creates a digital safety commission. Are we moving towards parliament that passes vague laws and then unelected regulators decide the real rules at a later time? Yes. Yes, that's exactly what we're that's exactly what we're moving towards. There are people, as I think you know, who believe that government's intent is mass surveillance of Canadians. There are people who believe that the government is stumbling towards protecting Canadians. When you look at the general thrust of the government, is it incompetence? Is it malevolence?

SPEAKER_00 0:34

My read is that it is a combination of incompetence, to be sure. I think that's actually probably one of the biggest drivers, and we can talk a bit about how some of the legislative proposals have just been really incoherent.

SPEAKER_01 0:46

Companies like Signal, Apple, Google, Meta, or VPN providers say these laws could force them to weaken encryption or leave Canada. Is that fear-mongering, or are they identifying a real technical and constitutional problem?

SPEAKER_00 1:03

They're identifying a real problem. These are not bluffs, these go to the heart of the services.

SPEAKER_01 1:08

Critics are arguing that this is building a surveillance framework. What power is the government really asking for? Michael, thank you so much for being willing to join us today. It's a privilege to have you back on the show. Can you believe it was April 2024, uh over two years ago now, that you first joined the program? How have you been?

SPEAKER_00 1:35

Uh I've generally been good. It has been a crazy busy time, which I think we'll have a chance to talk a bit about. But uh things are good. I I mean, in some ways, some of the things that I remember we talked talked about then. We talked a bit about anti-Semitism in the country. And I would have hoped that a couple years later things would have been gotten better, but uh, in some ways it feels like things have gotten worse. But you know, nevertheless, we keep uh fighting on.

SPEAKER_01 1:58

Would you mind briefly reminding people of your work um and some of your credentials?

SPEAKER_00 2:04

Sure, I'd be happy to. So uh my name is Michael Geist. I'm a law professor at the University of Ottawa where I hold the Canada Research Chair in Internet and E-commerce law. I like to think that that kind of puts me at the intersection between law, technology, and policy, or at least that's the sort of work that I've been doing. And that means that over the years I've been focused on quite a lot on privacy, on intellectual property and copyright issues, on internet regulation, range of different issues associated with that. Um, and it also means that uh broadcast, telecom, it's a it's a pretty wide remit, I must admit. I feel like I'm fortunate to be in Ottawa where a lot of that policy takes place. So that means I regularly appear before parliamentary committees, have an active blog, an active Substack, uh, an active podcast of my own, lobbyes. So uh I've long been a believer, not just in doing the traditional academic research that I think has to underlie uh where the opinions come from, but trying to make it as accessible as possible and as broadly available as possible.

SPEAKER_01 3:07

I have to confess, I got this one wrong. I saw a bunch of information circulating quite a few months ago. My wife Rebecca showed me like this thing on Instagram and I was like, did you hear about how like the government is looking at like more censorship laws and more control over speech? And I was like, Yeah, they tried that, they didn't get it through. I'm not too concerned about that. I think everything's gonna be okay. And I was wrong. So I'm just wondering if you can walk us through when we had that conversation in 2024. What was the reaction? Do you think? Like there was a big pushback that you and I were discussing during that period from creators and and from different independent organizations saying, hey, hey, hey, maybe this isn't the best move. Did the government hear that? Did they respond to that? Do you think they took that kind of feedback in?

SPEAKER_00 3:57

Yeah, no, I I'm glad that you're jogging my memory about some of the discussions that we had. And and my recollection, you're right, is that our focus was a lot on what was then Bill C11, which was the online streaming act, and concerns that it was going to loop in um podcasters and TikTokers and people using influencers on Instagram. Sort of the wide range of people that suddenly now find their home online and find themselves, frankly, being able to make a living and finding audiences not just in Canada but around the world. And there was a lot of concern that the government had put forward legislation that was going to capture that. Um, I mean, the the way that worked out, I mean, the timing here is fortuitous, because the way that worked out was the law did pass. And I'm not sure that the government really heard it, or they probably heard it, but I don't not sure that they really cared at the end of the day. So they bid pass the legislation with all of that in place. But they said, listen, our intent is not to regulate social media. And after the legislation passed, this online streaming act, they went to the trouble of creating a policy direction for the CRTC. So that would be the regulator that was going to take what was generally a bit of a bare bones piece of legislation and try to bring it all together in terms of what it would actually mean, what would be the mandated contributions and all the other sort of rules associated with that legislation. And they said, they put forward, as I say, this policy direction said keep social media out, which is, I think, the good news, right? So they did recognize that uh they perhaps had overstepped. I don't think it needed to be in the legislation itself. I know it didn't need to be in the legislation itself, but it was. And so they they attempted to create a carve out. Now, interestingly, I think that years later, there's still been no money really that's been paid out as part of this legislation. And in fact, the the concerns that were raised back then about the government not setting the kind of necessary standards and rules within the legislation itself, leaving it to a regulator, being overbroad in terms of expectations and regulations, have all come home to roost. And so the CRTC has spent the better part of a couple of years trying to flesh out what those rules would be. Some of them are now stuck in the courts as precisely as predicted. And so uh we still don't have answers. And then most recently, after the CRTC finally came up with its decision on what some of the payments and regulations would look like, uh the government backed down and recognized that there were some real risks with moving ahead, notably from uh the United States as part of trade talks, but we could say, I think even more broadly in terms of some of their existing trade obligations. And so as we talk, the there's still a bit of limbo here because government has said they want the CRTC to start again. They are now saying they're going to issue a new policy direction, which I have to say, you know, you haven't done legislation very well. If you now have to go back to the regulator that is supposed to implement this and twice have to tell them what you really have in mind when it comes to actually implementing. Of course, they've changed their mind as part of what's happening. But there will be a long process under which this will have to take place, because policy directions have to go through both houses of parliament, they're subject to consultation. This is going to take many months. And then CRTC will get this, and then they go back to the drawing board and they have to now again hold hearings. Now with this in mind to come up with a new way of implementing, it's going to take years. And so, you know, if we think back to that time, the government first introduced that legislation in 2020 and they were promising money to the sector, you know, within a year. Uh, we're talking about what could end up being a decade before any of that money flows. And part of it is the choices the government made.

SPEAKER_01 7:40

I want to underlie this conversation and sort of ground it in your perspective. There are people, as I think you know, who believe that this is uh the government's intent, the underlying intent is mass surveillance of Canadians. There are people who believe that the government is stumbling towards protecting Canadians. When you look at the general thrust of the government, is it incompetence? Is it malevolence? What is drive, what is the underlying drive? Obviously, there's a lot of people, there's a lot of actors involved, they don't all have the same vision. But when you look at that general direction, what is driving the government right now?

SPEAKER_00 8:18

Yeah, no, that's a really good question. And you're right, you get that, those, those disparate range of views in terms of what's what's the actual motivator here. I must admit, I I generally don't think that much of many of these pieces of legislation are fundamentally about a censorship agenda. I know that that may not be popular with some who think that it is, but that's not really my read. My read is that it is a combination of incompetence, to be sure. I think that's actually probably one of the biggest drivers. And we can talk a bit about how some of the legislative proposals have just been really incoherent. I mean, it it feels a bit like improv, quite frankly, where the it feels like the government is making some of the stuff up as they go along without a real vision. So it's in some ways it's the opposite of this underlying nefarious intent. I think in some ways they actually just don't have a clue on some of these things, haven't really done the hard work about sorting out what some of the implications would be. I think there are other instances, though, that while I would not say that their intent is to, I don't know, uh to limit people's privacy or to uh limit some of the things that they might say online. Uh, I do think that they are too indifferent to the concerns that can arise from their legislation with fears that this is where some of this legislation may lead. I think that has been particularly true on the privacy front, where there have been serious issues raised about the privacy and security implications of some of their proposals. Lawful access, for example, Bill C22 is a really good example of that. The way they have now introduced new privacy legislation as part of their AI strategy, their intent to create a social media ban and what that might mean, not just for the effectiveness of safeguarding kids, but also for the privacy of all safe social media users, which is effectively just about all Canadians, who I think will face some privacy risks. And so on that front, I'm not sure that their goal is to undermine people's privacy, but they sure don't seem to care that that's the result coming out of some of their legislative proposals.

SPEAKER_01 10:25

I've always believed in learning this in law school that the law is a blunt instrument. Um, it is it has real challenges, understanding the nuance of individual circumstances, uh cultural changes. When we talk about law, we often need to kind of ground it in the fact that maybe the government's intent is purely altruistic. Maybe they're uh malevolent individuals trying to make the best country possible for us, but they're creating tools that will long outlive their government no matter how you cut it. It will be passed on to a conservative government, an NDP government potentially. Like there are there will be other hands that have influence over how this is interpreted and applied. Is there a longer-term concern here that they're perhaps creating tools that could be used by by themselves uh malevolently or by future actors malevolently?

SPEAKER_00 11:17

Yeah, that's a really good point. Um, and I think we ought to be concerned. You know, I think one of the things that that I sometimes will respond to those that have more faith in the government, um, and of course a range of views about people's faith in this current government, but um, those that have faith and say, listen, this is not their intent. Don't worry, the kind of um doom and gloom that gets raised, or sort of the risk analysis about where things could go wrong or how this could be misused, why would they ever do that? That's not what's going to happen. And what I'll often say is, okay, well, who's your, you know, who's your political opponent here? Let's say you're a liberal and so you you you view your Pierre Polyev and the conservatives as your opponent, think about what would happen if Polyev was in power with the tools you just created. Um, would you be as similarly sanguine uh about some of the risks here? And and oftentimes, of course, the answer is no. Um, because people are too short-term sometimes in thinking through these things. And and one of the things that that I'm sure you learned in law school and that that I've experienced is that you know it's hard to make laws, it's even harder to get rid of laws. And I think. And so once you've established these frameworks, you know, it's very hard to undo them. Uh, you know, think, for example, of the social media ban, and we could perhaps come to it. We build C34, which is part of what I think many would say is a legit effort to try to deal with some of the real harms that exist online. But the ban itself for under 16s, I think we know from experience elsewhere, is unlikely to work. Uh, evidence tells us that these systems don't work. But even more than the fact that they just don't work, the requirement to implement this ban is to ensure that just about every Canadian undergoes an age verification process to use social media, including uh to use YouTube or to use uh to post a comment on Reddit or a picture on Instagram. I mean, everybody, it's if you are limiting this to people who are over 16 and you want to exclude the under 16s, you've got to know everybody's age. And there's no undoing that. In fact, the way the government has structured this legislation is they say they want the the ban in place as soon as this new body that is going to be responsible for enforcing it, a digital safety commission, uh, is established. Not that it is up and running, fully up and running, not that it is established the standards under which companies can use age verification to ensure that the privacy issues are addressed, not when the social media companies or others subject to this legislation know what it means to create an adequately safe environment under the standards of this commission so they might be exempted from this requirement. They want it on day one. Well, or day one once this legislation, once the commission's established, which is actually about a year and a half later, but regardless, they want it up and running as fast as possible with all the safeguards removed. Well, let's recognize what that means is just about everybody in Canada is going to have to undergo age verification without any of those safeguards. And so how do you undo that? Well, you don't. I mean, you've now done all of this. And if you've got a law that you say we're going to create incentives for companies to be compliant because if they're it because if they are, they won't have to age verify. But then you implement it in a way where they all have to age verify regardless because you're not up and running to even be qualified for that exemption. What incentive are you creating exactly? I mean, it just doesn't make any sense. And yet that's precisely where we're headed, at least with some legislation.

SPEAKER_01 14:52

Where is the government receiving the push to bring in a lot of this legislation? I just I don't I feel like there are a lot of critics of the legislation. I don't see the lobby groups or I just don't see a front-facing argument like that the government needs to be doing this and that this we're we're we've been waiting on this forever. I must be missing something.

SPEAKER_00 15:13

Yeah, yeah. You need to get into my feed and correspondence because I do see some of that. Um you're right. We're in we're sometimes in filter bubbles a little bit where we just see the critics, and I see a lot of those too for sure. They there's a tendency for people to lap up some of the criticisms because I think they're legit, but there are there are supporters out there. It does depend a little bit, though, on what bill we're talking about. Uh so there is, in a sense, a bit of a coalition uh of different kinds of groups that on different issues are pushing the government to act. So, in the case of lawful access, for example, which raises some real concerns around mandatory metadata retention and um breaking of encryption and security back doors, uh, that's law enforcement that's pushing for that. I don't think we really, for the most part, see community groups other than some child safety groups. For the most part, the emphasis there is from law enforcement, who say these are the tools we need and want. They know that perhaps they might find them struck down as unconstitutional. They're willing to take the risk. They just want those powers. When it comes to safer social media and things like the ban and stuff like that, those are by and large parents groups, and there are a number of them that are out there. I think at times they're distorting the what the data and the evidence tells us about social media, where there is a cohort that faces some real harms. There's another cohort where social media is very beneficial, and then there's a larger cohort that it's kind of a little bit in the mushy middle, uh, where it doesn't have a huge impact one way or the other. There's a lot of other issues, frankly, that are more likely to be sources of potential concerns for youth. But regardless, those are the groups that have been very vocal. And you've got a government that clearly is receptive to using that as the framing. I have a piece upcoming that tries to make sense of some of what we've been seeing lately. And and I must admit, sometimes it's a bit hard. I I feel like um that there is just, as I say, it feels like they are making it up as they go along. And we've had instances where they introduce a safeguard in one bill and five days later they repeal the safeguard. I mean, that just doesn't make any sense, but that's something that's that's some of what we've been seeing. Um, but beyond that, it feels like they've generally thought that part of the real problem here is a governance problem, that it's the the laws are it's less about the substance of the laws and more about the privacy commissioner isn't good enough or the CRTC isn't good enough, and we're gonna create this whole new entity that's gonna be responsible for these issues, and that's how we'll solve the problem. I think they're wrong on that, but um, it's also clear they don't believe that that's a particularly sellable position to take. I mean, people don't really focus on governance for the most part, and so instead they're very much focusing on kids, and so almost everything is framed around protecting kids, which you know, no one is gonna get no one's gonna oppose ensuring that kids are safe. The problem or the next question, though, that ought to be asked is is what you are doing actually going to make them safe? And what are the costs of doing so in terms of people's privacy costs or expression costs? And that's where I think the legislation that they've been proposing has a much harder time being justified based on the kind of some of the approaches they've taken.

SPEAKER_01 18:28

My last question, and then we can, I think, go bill by bill if that works for you, is I feel personally that sometimes the government has the authority to do something, but doesn't necessarily need to step into the lane that they enter into. And so federally, my opinion is that them moving into dental care, which I understand a lot of Canadians feel they benefited from, is beyond the scope I think we need our federal government focused on. When I just think of the division of powers and zoom out, when I look at some of their other decisions on trying to address what I would say is very local issues, I just don't see it as their rightful place to be trying to address these issues. And I think it's a live question that I'd just be interested in your take on. There are going to be families who go, it's my call how my child uses social media, what I allow them to do, what I don't allow them to do. Of course, the counterpoint is you're not watching your kids 24-7, they're at school, they're somewhere else, you don't always know what they're doing. But is this what is your perspective on the argument at a high level that this is the rightful place of parents to make some of these decisions and that it's not the proper place for government to start to get involved in the homes and family life of people across Canada?

SPEAKER_00 19:44

Yeah, no, I think you raise a really good point. And I think it is a big issue on the social media bill for sure. Um, and I I actually think that we are going to find that this bill, if it does pass in the current form, is going to be far less popular than I think the government thinks it will be. For all for in part for the reason that you just articulated. And that is, I think there will be many parents that will be surprised to learn that their opinions about what's appropriate for their own children doesn't count. Um, that the government is there to say, sorry, if you've got a 15-year-old, you might think they are ready to be able to post a comment on Reddit or engage in discussions with friends on on Instagram or on one of the other services. Uh, but we've decided that they shouldn't. And, you know, I think parents will the experience in other places is parents will then work with their kids to frankly circumvent the ban. There is um recent data that suggests in Australia as much as 86% of one study group as part of a medical study was still on social media months after that ban was established. And a lot of has to do with circumvention, with the kids finding ways to circumvent and at times parents helping them because parents just taking the view that um the the approach is inappropriate. So I do think you're right that on this issue, it's less of a constitutional there are constitutional issues with respect to the ban as to whether as to children's own charter rights and their rights to uh access information. The the sort of division of powers is less at play, but what is certainly at play more generally is you know, is this the right policy approach? Is it going to be effective? Um, is there not some mechanism for parents to have a role to play here? You know, and you know, I think there might well be parents that that come away from this saying, well, no, I I think my kids are perfectly suitable to be able to and ready to use this this technology or this service. Why is the government um making its decision for me? And uh as I say, I think I think we will see parents both saying, You put a new pressure on me with kids that now say, help me circumvent the law. Law, help me circumvent the ban so that I can continue to use the service. Parents thinking there's no, you know, what's at stake here, why not? Um, and should they ratchet up the penalties against some of these companies? The company's making more and more efforts to keep some of those kids out. It um I don't think it leaves anybody in a good position.

SPEAKER_01 22:19

Following along the same lines as Bill C34, uh, you mentioned this a little bit uh a few minutes ago, that this ultimately may result in in order to do age verification, that will be required for everybody. Is the real policy here not a kids ban, but a national identity check system for the internet?

SPEAKER_00 22:41

At this stage, I don't think so. Uh, I think it is so the goal is a ban. You know, we will see how it rolls out, though. Um, and there has been some discussion, including from officials, about the prospect of the government providing the age verification service, in which case that question you just asked will become, I think, uh, more urgent. And there will be some that will say, you see, this was the real goal all along. Um my instinct at the moment is to say no, in part because, well, we don't know precisely how this will roll out, but if we look at how it's been rolled out in Australia and at least some of the early speculation, it frankly doesn't meet that standard, right? It's uh it's providing either ID or age estimation technologies where the systems guess your age, but don't know who you are, um, often directly either with the services themselves or with third-party services that offer that up. And in fact, many of those third-party services are not even in Canada at all, um, which raises a different issue, raises concerns around them collecting a lot of this data and they're may not be subject to the same kind of enforcement powers that we would have if they were Canadian-based. So, and there's an irony that we're talking a lot lately about data sovereignty, digital sovereignty in Canada, and creating a system whereby just about all Canadians need to engage with a foreign service in order to verify how old they are strikes me as kind of anathema to that strategy. But uh, I at the moment I don't see it that way as sort of this underlying effort by government to engage in that. I mean, quite frankly, up until about six months ago, the general sense was the government was not going to include a ban, uh, that they were content to bring back similar legislation that they had under Bill C-63 that sought to create a duty to act responsibly for these platforms. I frankly think it's a it's a pretty good starting point to provide some flexibility in terms of how we deal with some of these large platforms to ensure there's a level of responsibility. And, you know, as Australia moved forward and as there was suddenly a bit of momentum behind this, suddenly what feels more like a political choice rather than a policy one, um, sort of moved moved ahead. And and we should be clear, I mean, we've been focusing very much on the federal government. But I mean, you're sitting there in BC, um, where the BC government has been very vocal on exactly the same thing. Manitoba government, Wab Canoe, very vocal on precisely the same thing. And so part of what may have been happening here is that federal government facing real pressures from the provinces to do this, with frankly uh to them taking a position that if you don't, we will. And that would create its own set of concerns. And of course, that that is not then moving towards national at all. It's actually provinces that are driving the bus on some of these age verification systems.

SPEAKER_01 25:36

Wow. Uh Bill C 34 also creates a digital safety commission, which you had kind of alluded to a few minutes ago. Are we moving towards uh a parliament that passes vague laws and then unelected regulators decide the real rules at a later time? Yes.

SPEAKER_00 25:54

Yes, that's exactly what we're that's exactly what we're moving towards. Um the the Digital Safety Commission, which I was concerned with when it was just what was its responsibilities under Bill C 34. So for the I had a five-day period basically where like, well, this is this is concerning. Someone has to enforce the law. I get that. But uh you've got to establish appropriate constraints around that entity. And the government has left so many, uh so much of the heavy lifting, so many of the core decisions to the commission itself, which is going to take quite some time to get up and running. The government itself, it's pretty clear in the legislation anticipated that this will take some time because it said that so long as there is one person running, as long as the chair is in place, it can start doing the work it needs to do. So it's pretty clear it's going to take some time. There are supposed to be five commissioners, so they will be vested with a huge amount of power around all of the kind of harm social media piece. But then five days later, they introduced Bill C36, the privacy reform bill, and said we are going to take away the Privacy Commissioner of Canada's responsibility for regulating private sector privacy and instead give that to the commission as well. And so now you've got a commission that is not only responsible for all the safety, social media, AI, chatbot regulation piece, but will also be responsible for all the privacy pieces as well. Um, nobody does it this way. And so that is just uh a mind-boggling amount of power for what will ultimately be five unelected commissioners, one of them being the chair, one of them being specifically responsible for privacy. Um that I think is a huge source of concern.

SPEAKER_01 27:46

The other piece to this, and I think this happens throughout history, every time something major happens, is there's these extreme use cases. There's these extreme circumstances. And I don't really want to list them because I don't feel that's appropriate to the tragedy of each one of those circumstances. But you have the government kind of using, hey, look at this horrible, horrible thing that happened. This is why we need this tool. But then the tool gets used far more broadly than to catch those specific use cases. Like everybody is against some of the harms we've heard about. How do we as Canadians digest the real need to address those, but not give too much power?

SPEAKER_00 28:28

Yeah, no. Well, as I say, there's and there's two elements there that I guess I would pick up. One is is I would just reiterate that you know, if you believe in some sort of social media regulation, and I think we're at the moment where there is generally some consensus that it is appropriate to regulate, there are real harms that take place and that we need to try to address those. Someone's got to regulate it then, right? So, um, and not everything rises to the level of criminal activity that you sort of leave this to say this is a police matter. I don't think we'd be very happy with that either. Um, so someone has to regulate. I wouldn't be happy with the CRTC. On some of the stuff, wouldn't be happy with the privacy commissioner either. So I get that that creating uh a new entity responsible for this is important. That at the same time, especially given that it's untested, suggests that you really want to ensure that there's appropriate safeguards in place, that you've really carved out a lot of the rules, you've created some of the various safeguards, checks, and balances that are needed. I'm not convinced we've seen a whole lot of that. There is no doubt that you know events drive activities or so or political responses. Interestingly, you know, my view anyway is that on the AI chatbot issue, and I assume that was part of what you were referring to, um, I think the government struck a pretty good balance, actually. So there in the aftermath of Tumblr Ridge, there were calls for you know broad regulation, mandated reporting to uh to law enforcement. And I I was hesitant to see us move sort of full steam in that direction. I mean, it's essentially calling for very very aggressive surveillance infrastructures of people's engagement with, let's say, an AI chatbot, or it could be almost any digital intermediary. And then that expectation that those conversations or those comments or what people are are inputting could then be reported to police without a very high threshold before doing so struck me as quite troublesome as well. I think the government actually, on this issue, has struck a pretty, pretty reasonable balance. So it is trying to establish some standards to make AI chatbots safer, um, but it is not requiring the and and more transparent in terms of their policies, both of which I think were needed, but it hasn't gone as far as as the bans or the mandatory reporting that that perhaps it might have.

SPEAKER_01 30:52

Fascinating. Uh, how should Canadians think about the difference between removing clearly illegal content and regulating lawful but controversial expression? And I'll quickly just preface that by saying, as you may have heard, there was discussion about criminalizing denialism of Indian residential schools. And I came out strongly against that because I just don't think it's the way to resolve some of these societal cultural issues that need more conversation, more light, more uh honest dialogues. Even like I've debated people I completely disagree with, but that's the role of freedom of expression. And so often you can find that controversial expression very uh undignified, inappropriate. It can make you uncomfortable. And I sympathize with all of those individuals who feel that speech can sometimes lead there, but it's a very dangerous thing to allow the state to start to control that. Is the government striking the right balance in regards to this?

SPEAKER_00 31:47

Yeah, okay. Going with the really easy questions now, eh? Um I I guess, you know, this is an extremely difficult alt issue. I I I'll say, I guess I'll say the following. First, I think that we ought to be able to recognize that where there is unlawful speech, where it is criminalized and has is able to withstand a charter challenge so that it is viewed as constitutional limits on expression uh for reasons that we do have limits, we have appropriate limits. Um, I think that's you know, the ensuring that platforms, you know, will be responsive to their obligations to address that kind of content appropriately is right. Right. I think you know you have rights, you have a lot we need wide berth for freedom of expression. It doesn't mean you get to engage in illegal activity and say, well, it's just expression, so I'm entitled to do it. There's a reason we have laws against that. It is, you are right, much tougher once you get into the awful but lawful category of speech. And on that front, I I I would like us to be exploring alternative mechanisms to deal with it. I I am I I mean I think it's important to safeguard that speech. I I I can identify, even based on the way you've just described, that I come out of from anti-Semitism as the the source of where I see some of the awful but lawful speech coming. Um and I guess my my view there is that that speech may itself have a significant chilling effect on the expression of others. And we need to recognize that it has that, and then so think about how do we address that. Because it's one thing to say, well, you know, let everybody have at it. You say your piece, I'll say mine. I may disagree, and that's it. But that's not it. In many instances, that speech may actually chill my ability to speak. If I'm afraid to venture out and speak because of some of the repercussions, my expression is limited so that you can express yourself. And so I think we do I think we do need to recognize that that that uh that can occur. And so then I guess the question becomes, well, how do you best address it? My own view is that the way to do that is actually to hold the platforms to the very policies that they've established. And so then rather than say, I'd like to see the government come in and seek to regulate awful but lawful speech, which I think will put them on somewhat shaky ground from a constitutional perspective. It is difficult. And once you start moving in that direction, you invariably start getting into areas of speech that become more and more controversial and becomes more and more difficult to engage in that kind of speech regulation. But let's recognize that these private plat privately owned platforms, no matter where whether it's X or Facebook or Instagram or TikTok, what have you, they have rules themselves. They they own the platform, they have the right to establish the rules and community standards. And many of them have established policies and community standards that address that awful but lawful speech. Essentially, platform saying, yeah, we we recognize that that there is speech that makes it difficult for our community to fully engage. And so it's the kind of speech that we also want to see limited, not because you don't have the right to say it, but on our platform, our rules. And our rules are we're gonna establish some limits here because we want everyone to feel comfortable engaging in that speech. The problem I think we've run into is that many of those platforms uh are very inconsistent in terms of how they enforce those rules and non-transparent in many instances in terms of how they're doing that. And so I would be more comfortable seeing rules that basically say you platform, you need to abide by your policies that you yourself have adopted. You don't have to adopt those policies. You've chosen to adopt those policies. That's effectively an agreement, a contract, an undertaking with your users that this is what you will do. And your failure to do that itself brings some form of liability. And this is modeled on the US approach to privacy because the US does not have a national private sector privacy law, but what it does have is it says, listen, you put forward a privacy policy. That's an undertaking to your users about how you will use their information. If you do not live up to that, you can be held liable under what's known as the FTC Act, Federal Trade Commission Act, section five. So essentially, this becomes an enforceable obligation. It's a voluntary obligation on your part, but once you've made it, you've got to live by it and you can be held to account if you don't. I think that's where we ought to be thinking when it comes to some of the awful but lawful speech. And so leave it to the platforms to establish those policies, but then hold them to account when they don't live up to it.

SPEAKER_01 36:55

As usual, a very nuanced perspective. Uh, Bill C22 raises uh lawful access and encryption concerns. The government is saying uh it is simply modernizing policing tools, which you mentioned earlier. Critics are arguing that this is building a surveillance framework. In plain language, from your perspective, what power is the government really asking for?

SPEAKER_00 37:18

Yeah. Okay, so there's a lot in C22. Um, let's quickly break it down into three elements. Um, the first element, which was a real concern a year ago, but the government addressed it, really was under what circumstances could law enforcement demand access to subscriber information for different services, not just internet providers, electronic services as well. And they initially came up with a proposal that really gave them the ability to get at least basic subscriber information without any warrant or oversight at all. They backtracked on that. They now say you can gain access exclusively to what's known as a confirmation of service demand. So basically confirm that the provide that a given person is a customer of a given provider. So before they go get the necessary warrants and the like or production orders, they can at least know that they are barking up the right tree, so to speak. They know that this is the customer or someone who's there. Um, that strikes me as a pretty reasonable compromise that they've arrived at. And they've established other or orders, orders or powers that law enforcement can use to obtain subscriber information, like the content of that information, sometimes requiring providers to preserve information, and there are different standards, and all of this is overseen by courts. And I think I think they get the standards wrong in some places, but by and large, they're at a minimum, saying that court oversight's there. That's part one of the bill, and it's the least controversial part now because the government really did try to fix it. Part two is where most of the controversy lies, and there's really two elements there that have been the sources of concern. The the first involves it's known as mandatory metadata retention, uh, where the government is going to require providers to retain the metadata on their users. Now, initially it was going to be for a year, now they've cut that back to six months. And that approach is essentially saying that we don't require, as a matter of course, that you retain everything about the content of a message, but you do have to retain everything about that message. Sort of when did the people communicate? Where was the person located? What were they using to communicate? All of that is data about the data or about the communication that is called that is is collected. Now it will have to be retained for up to six months. And that's, I think, a source, a real source of concern because it effectively creates essentially almost a surveillance map, right? Where, you know, the use case law enforcement is noted is what if there's a violent incident, a shooting, and we want to know who was in the area at the time, who was a potential bystander. And they're like, well, we can use this tool to be able to identify that, which essentially confirms exactly what the concerns are, that you're creating this surveillance map of where everybody is at any given moment, and you are making it retroactive so that you can go back in time up to six months to know where these people are located. Now, for 99.9% of people, they've done nothing wrong, and the idea that you are retaining data on them in this fashion ought to be a source of concern. And especially there are alternatives, right? So law enforcement could say, you know, once we know we're conducting investigation, we want you to retain the metadata information because we want to be able to track that person. That's totally understandable. We might even say that they we need this for two weeks or a month or something like that, because we don't know what we don't know in those early stages. But six months, it strikes me as wholly disproportionate and a source of concern. And the other element is as many of these different uh services, digital services, messaging services, work to keep our information secure and our data private. Uh, they got law enforcement says, well, we want access sometimes. We potentially want access to encrypted communication. We potentially want access to your networks and your systems to better understand what's there and potentially have access to activities. And that's where you've seen many of the larger companies say, hold on a second. I have obligations to my customers. I'm not willing to give you backdoor access. And in fact, if you do gain backdoor access, that is putting everybody's data and security at risk.

SPEAKER_01 41:25

That perfectly leads into my next question. Companies like Signal, Apple, Google, Meta, or VPN providers say these laws could force them to weaken encryption or leave Canada. Is that fear-mongering or are they identifying a real technical and constitutional problem?

SPEAKER_00 41:44

They're identifying a real problem. And um, I think we ought to learn by now that you know these are this this isn't these are not bluffs. These go to the heart of the services. If you're a VPN provider, for example, your whole business model is that you allow people to communicate in a secure fashion without the retention of this kind of information. And so if the Canadian government adopts a position that there is going to be this mandatory data retention, customer, the some of these services have understandably said, well, we can't operate in the jurisdiction. If you require some sort of access to encrypted communications, you got services like Signal or Apple saying, well, that's at the heart of what we are offering our customers. We either can't operate in the jurisdiction in the case of Signal, or we can't offer up some of our most secure technologies to our users because they're going to be compromised. And that's, you know, Apple would be a good example of that. So no, I think these threats are very real.

SPEAKER_01 42:43

Do you think there's a way to resolve that concern for these companies?

SPEAKER_00 42:48

Yeah, no, I there is a way. Whether or not the government is willing to pursue it is the is the question. Um and so on the metadata front, they, as I mentioned, have cut the amount of retention time in half, but it is still the case that it is long enough that it is going to be a source of concern for many. And so it's not obvious how they're going to fix that. Um and for some companies, any metadata retention is going to be a non-starter. On the encryption side, there is, of course, a way. I mean, that, and that would be very explicit exclusion of access to encrypted communications. Uh, the problem is law enforcement has at times made it clear that that's exactly what they want. So um, is there a way? Yes. But will the government be willing to do it, given that you've got, on the other hand, governments saying, or law enforcement agencies saying, no, this is basically what why we want this. Um, that strikes me as a proverbial rock and a hard place.

SPEAKER_01 43:50

A few more questions. Thank you so much for uh being willing to spend the time with us. The government's majority may be legally valid from my perspective, but many Canadians see it as political. Politically engineered through floor crossing and procedural advantages rather than a fresh democratic mandate that we often see after an election. When major internet and speech laws are being pushed through under those types of conditions, do you find that to be democratically legitimate?

SPEAKER_00 44:16

Yeah, I do. Uh I'm not a I'm not a fan of floor crossing, but everybody's we've seen it, you know, from going back decades now. Whoever's in part in power has been doing it. Um you know, the the way our system works is that if you can cobble together a majority of votes, um you can function like a majority. And, you know, I I've seen that issue raised, but you know, how different is the current government from the government that we just had that had a deal with the NDP that functioned for all intents and purposes like a majority government as well, even though they frankly were even further from having the necessary votes um to function as a majority.

SPEAKER_01 45:00

Fair enough. Mark Miller has become the face of this file. What do you make of him as minister championing uh this agenda? Does he appear to understand the technology and civil liberty implications, or is this being driven by politics, bureaucracy, and public pressure?

SPEAKER_00 45:15

Well, I think it can be both. I think it is being driven by politics and pressures. Uh I, you know, I it's not personal. I don't I don't know what he how much he knows or doesn't know on these issues. Um you're right, on some of these issues he's the face. I guess my res I think the the better question, not the bad question, but the the question that I guess I've been asking myself is that why is Mark Miller the person responsible for some of these issues? So you know, if I think of bill C34, which is a Miller bill, and or a bill that he's the responsible minister for, I mean, that is a bill that is quite literally called the Safe Social Media Act. It is a public safety bill. It's about public safety in the online environment. We have a minister of public safety. Why is what amounts to a heritage minister? He's got a new, there's a new title now, but um, basically, why is Canadian heritage responsible for what is a public safety issue? Similarly, why is an AI minister responsible, Evan Solomon, responsible for privacy when our privacy issues are about more than just AI companies. They're about what our banks, the data that our banks collect or retailers collect, or any number of different entities. That portfolio or that issue has long been the responsibility of the industry minister. Why did we see that sudden change? And so I must admit, I think some of the governance choices at the ministerial level are at best a bit odd.

SPEAKER_01 46:50

Do you think that the mainstream media is covering these issues in a balanced way?

SPEAKER_00 46:57

Um, hmm. That's an interesting question. Uh, I guess it depends a little bit on the issue. I I think we have seen on some of these issues, I think we've seen some pretty fair coverage on lawful access. There was quite a lot of criticism on lawful access. It's probably a bit too early to tell on the other bills. I mean, the bills they're quite recent. We haven't seen extensive coverage. I would say that certainly in the period leading up, especially on the social media ban, we saw a bit of a fervor uh around it. You know, some have described as a bit of a moral panic. Uh how much of that was the media itself covered covering it, and how much of it was providing space for some of those voices to try to raise them, um uh, you know, is is is I think open to debate. Uh so I guess uh I think it depends a little bit. I I mean the truth is a lot of these issues don't get a ton of attention. Um and the ones that do, I think run the risk of distracting. I mean, a good example of that is in fact the social media ban, which has got a lot of coverage, um, a lot of front page coverage, so to speak, on uh on various newspapers or on websites, um, in part because it's an issue that affects so many people. Um, but I think not only do I think that's bad policy, but I think it also has had the effect of relegating a lot of the really important aspects of this bill sort of to the background because we just don't um, you know, the what gets attention is the kind of shiny object around um the ban and not all the rest of the bill.

SPEAKER_01 48:28

The reason I ask, and this is my final question, is I just interviewed Pierre Polyev. And one of his comments is he feels very strongly that the media subsidies result in journalists being more favorable to the incoming government than him, in part because he's willing to say, I want to defund the CBC, I want to remove some of these subsidies. Do you think government funding of journalism, the CBC, and Pierre Polyev's promise to defund the CBC create an incentive structure to treat liberals, um, internet regulation and other bills more favorably than and criticize the conservatives more harshly?

SPEAKER_00 49:05

I think that individual journalists do their job and do not think about the role that government plays in either providing regulatory frameworks or direct funding. That said, I do think media outlets, there are some media outlets that do think about some of those issues. Um, and it can have have can have some influence in either the prominence that an issue is given or the space that is given in on the editorial side. So I think I think it would be naive to think that there was no impact on the business of news. Um surely publishers and the those running the business side are acutely aware of the economic benefits that come from certain government policies and the risk that those policies would be lost. How much that affects the way news is presented and individual news coverage, as I say on an individual basis. I don't believe that journalists this is something that is top of mind to journalists at all. Um, but in the totality of the package that gets presented, in some instances, and this is less a CBC issue, actually, and it's more of a private sector media issue, I think sure can have an impact. I mean, to me, a classic example would be postmedia, quite frankly. Um I challenge people to find many articles in postmedia that is critical of or op-eds that are critical of the government's providing funding for media. It's a core part of that company strategy to get uh as much support as possible for it. And so it is going, you know, it's going to be very rare to find any sort of op-eds that are critical of the government on on that front. Um, and so ironically, you know, Mr. Polyev's ra uh on that issue, it's actually the reverse of what Mr. Polyev suggests. Um the government, the some of those media outlets are loath to criticize the government um for for all that because they they want it. Well, um, I think that raises uh some real concerns on that issue, but I don't know that an individual individual journalist issue um we we see that raised. And they don't they have they have a tendency just to keep the criticism off the pages altogether.

SPEAKER_01 51:33

Thank you for joining us today, Michael. I really appreciated, as I said from the start of this, I was kind of behind the eight ball on this issue and kind of underestimated the government's ability to push some of these bills through and that that was some of their focus. To me, it somewhat came out of nowhere in terms of their pivot to push all of these through so quickly. And I just I really appreciate your ability to take in. I try and give kind of the the critiques I see online, the the frustrations, the emotions, so that when people come to watch an interview with that I'm doing that they can hear their frustrations or their anger heard and and that you're able to respond to those. So I really appreciate you taking the time uh and providing so much insight and grounding us in, I think, a very uh level headed perspective on a lot of these complicated and important issues.

SPEAKER_00 52:19

Okay. All right. Well, Aaron, thanks so much for having me again. It's always a really good conversation.