Can the CRTC Protect our Children?
by Mark Weller
As regular readers know, I have spent a good deal of time in recent months making the case that government regulation of the Internet is, in most cases, a poor public policy choice. However, despite increasing evidence that technological change, economic growth, and de-regulation are linked, efforts to regulate IT continue.
These days, the strongest proponents of Internet regulation are those who ostensibly want to protect children. For example, many Canadian schools have been faced with parents expressing concern over a lack of rules governing Internet access in school libraries. Another concern is the dissemination of child pornography on the Internet—the subject of a Private Member’s bill introduced in the House of Commons on June 11, 1998 by Chris Axworthy, the New Democrat member for Saskatoon-Rosetown-Biggar.
Bill C-424 proposes the implementation of the Internet Child Pornography Prevention Act, a new regime of licensing for Canadian Internet service providers (ISPs). These regulations would require service providers to ensure that no child pornography is accessible through their computers. In the bill, the regulatory body assigned to monitor all of Canada’s ISPs is the Canadian Radio-television and Telecommunications Commission (CRTC). The CRTC would issue licenses to ISPs based on a set of criteria to be determined by the Minister of Industry. Part of this license would be a requirement that the service providers “co-operate to minimize the use of the Internet for the publication or proliferation of child pornography or the facilitation of a sex offence involving a child.”
Of course, Mr. Axworthy’s intentions are very good. The whole existence of child pornography involves preying on children, so cannot be justified on the basis of civil liberty. A civil society must protect the most vulnerable in its midst; children must be shielded from sex offenders.
But can Bill C-424 limit child pornography on the Net? The problem with applying government rules to the Internet is that they are difficult to enforce, and it is difficult to determine a specific target for the regulation. If a government body wants to regulate content, as in this case, who should be held responsible? The person who produced the material? The person who uploaded the files? The person who went looking for and found the offending site? In this case, Mr. Axworthy’s bill targets the Internet service provider. This is akin to holding the telephone company responsible for obscene phone calls. (In fact, phone companies in Canada are liable for these communications, but this regulation has not substantially reduced the number of crank calls.)
The reasoning is that if the ISPs providing computer access feel the pressure, then there will be fewer and fewer places for pornographers to upload their files. In fact, all Canadian ISPs with whom I am familiar refuse to host this sort of material, and will remove the offending material immediately if it is brought to their attention. This is mainly because possessing such material is already against the law.
Currently, under our existing laws, anyone who uses the Internet to commit or facilitate sex offenses involving children is guilty of an offence under the Criminal Code. Because distribution, creation, or possession of child pornography is also illegal, new laws that apply solely to the Internet are not necessary. Police forces already scour the Net for sex offenders, and the advent of the Internet has made it easier, in some cases, to track them down and bring them to justice.
The expansion of the powers of the Minister of Industry under this proposed law is significant. In one section, the bill reads, “The Minister is authorized to make agreements with provinces to assist in achieving the purposes of the Act. Special powers under search warrants may be prescribed by the Minister to facilitate electronic searches.” Clearly, such a wholesale expansion of powers should be considered very carefully.
Finally, it is important to remember that the distribution of child pornography is by no means a mainstream activity on the Internet. “Kiddy porn” is just as distasteful to the Internet community as it is to society at large, and occurs to a similar degree. A specific law targeted at the Net, therefore, is less preferable that the enforcement of existing laws which are directed at the offender and not the means of communication. It is the sex offender, not the ISP, who is the perpetrator.
Essentially, the problem with Mr. Axworthy’s bill is that its scope is too broad. Expanding the regulatory reach of the CRTC to the point where it becomes a sort of police force will have more negative than positive effects. Instead, Canadian law enforcement, working together with organizations like Interpol, should continue to search the Internet for sex offenders, and to enforce our existing laws.
The first version of this bill, C-396, was introduced in April 1997 and was never brought forward. Given the problems with this new bill, which range from the enforcement regime to the allocation of liability, it seems likely that C-424 will suffer the same fate, fortunately, despite its good intentions.
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