Bill C-30 (Historical)
Protecting Children from Internet Predators Act
An Act to enact the Investigating and Preventing Criminal Electronic Communications Act and to amend the Criminal Code and other Acts
This bill was last introduced in the 41st Parliament, 1st Session, which ended in September 2013.
Vic Toews Conservative
Second reading (House), as of Feb. 14, 2012
(This bill did not become law.)
This is from the published bill. The Library of Parliament often publishes better independent summaries.
Part 1 enacts the Investigating and Preventing Criminal Electronic Communications Act, which requires telecommunications service providers to put in place and maintain certain capabilities that facilitate the lawful interception of information transmitted by telecommunications and to provide basic information about their subscribers to the Royal Canadian Mounted Police, the Canadian Security Intelligence Service, the Commissioner of Competition and any police service constituted under the laws of a province.
Part 2 amends the Criminal Code in respect of authorizations to intercept private communications, warrants and orders and adds to that Act new investigative powers in relation to computer crime and the use of new technologies in the commission of crimes. Among other things, it
(a) provides that if an authorization is given under certain provisions of Part VI, the judge may at the same time issue a warrant or make an order that relates to the investigation in respect of which the authorization is given;
(b) provides that the rules respecting confidentiality that apply in respect of a request for an authorization to intercept private communications also apply in respect of a request for a related warrant or order;
(c) requires the Minister of Public Safety and Emergency Preparedness to report on the interceptions of private communications made without authorizations;
(d) provides that a person who has been the object of an interception made without an authorization must be notified of the interception within a specified period;
(e) permits a peace officer or a public officer, in certain circumstances, to install and make use of a number recorder without a warrant;
(f) extends to one year the maximum period of validity of a warrant for a tracking device and a number recorder if the warrant is issued in respect of a terrorism offence or an offence relating to a criminal organization;
(g) provides the power to make preservation demands and orders to compel the preservation of electronic evidence;
(h) provides new production orders to compel the production of data relating to the transmission of communications and the location of transactions, individuals or things;
(i) provides a warrant to obtain transmission data that will extend to all means of telecommunication the investigative powers that are currently restricted to data associated with telephones; and
(j) provides warrants that will enable the tracking of transactions, individuals and things and that are subject to legal thresholds appropriate to the interests at stake.
It also amends offences in the Criminal Code relating to hate propaganda and its communication over the Internet, false information, indecent communications, harassing communications, devices used to obtain telecommunication services without payment and devices used to obtain the unauthorized use of computer systems or to commit mischief.
Part 2 also amends the Competition Act to make applicable, for the purpose of enforcing certain provisions of that Act, the new provisions being added to the Criminal Code respecting demands and orders for the preservation of computer data and orders for the production of documents relating to the transmission of communications or financial data. It also modernizes the provisions of the Act relating to electronic evidence and provides for more effective enforcement in a technologically advanced environment.
Lastly, it amends the Mutual Legal Assistance in Criminal Matters Act to make some of the new investigative powers being added to the Criminal Code available to Canadian authorities executing incoming requests for assistance and to allow the Commissioner of Competition to execute search warrants under the Mutual Legal Assistance in Criminal Matters Act.
Part 3 contains coordinating amendments and coming-into-force provisions.
Motions in Amendment
Protecting Canadians from Online Crime Act
September 22nd, 2014 / 5:15 p.m.
Robert Chisholm Dartmouth—Cole Harbour, NS
Mr. Speaker, I am pleased to some extent to participate in the debate at this particular time, at the report stage.
I want to start by commending my colleagues, our justice critic and other members of the justice and human rights committee, who have worked so hard on Bill C-13 and introduced 37 amendments at the committee stage to try to take away some of the more onerous portions of this particular bill so that it would not, for example, spend the rest of its life in court being challenged constitutionally. It has taken a fair bit of effort and energy, I know, and patience on their part to do what they have done. I want them to know how much I appreciate it.
I want to, also, remind members that back on October 17, 11 months ago almost, I rose on a point of order to say that I was concerned about the issue that had been raised in my private member's bill, Bill C-540, making it a criminal offence to distribute non-consensual intimate images. While I had heard from the government in the throne speech and from utterances of the then minister of justice that he supported this in principle, I was concerned that the issue would get bundled up in a major piece of legislation, a controversial piece of legislation, and that it may get delayed or lost.
I sought unanimous consent at that particular time to consider Bill C-540 deemed read a second time and referred to the Standing Committee on Justice and Human Rights. I did so because everyone in the House, of all parties, to a person, said that they supported the idea of holding people to account, changing the Criminal Code to ensure that the non-consensual distribution of intimate images was a crime and that people were going to be held accountable. I then moved a motion to say, let us move this to committee right now. This is a serious situation. It's affecting families. It is affecting lives across the country. Let us deal with it now. There is a will here. Let us find the way.
Unfortunately, that was turned down by the government.
It is interesting. The government then brought in Bill C-13, the initial portions of which dealt with the same issue that my private member's bill did, a little more thoroughly, of course, but it dealt with it. However, then the government did exactly what I and many of us were afraid of. It tacked on a great deal of what was in the former bill, Bill C-30, which it had to yank off the table two years ago because it was so soundly repudiated by privacy experts and others from across the country. The government attached it to the back of the cyberbullying bill.
When it introduced the bill, it did so in the company of the parents of people who had committed suicide, who had taken their lives as a result of cyberbullying, and it said, “We're here to deal with this”. It did not talk about the other parts of it.
Of course, there was great hope in those families and by advocates across the country that the government was going to move forward on this. Lo and behold, as is too often the case with the Conservatives, we got involved in a very controversial debate. We began to learn more about what was really in the bill, and advocates and privacy experts from across the country began to raise concerns.
Even one of the parents, who stood with the minister when the bill was introduced, said at committee that even though she wanted the Criminal Code to be changed to make the non-consensual distribution of intimate images a crime and that there should be consequences, she could not abide what else was in the bill, the outrageous and invasive parts of the bills that would allow for information on the Internet to be more accessible to authorities.
As was talked about in the recent Spencer case, the Supreme Court said it was about barring Internet service providers from disclosing names and addresses. It said that Canadians have the right to be anonymous on the Internet.
Here we have a bill that has been cloaked as an attempt to deal with the heartbreak and anguish experienced by families across the country as a result of their loved ones being bullied mercilessly through the Internet. It is a bill that has been identified as being meant to deal with that, yet in fact it is much more.
I had the opportunity to talk today with another parent. I explained to that parent what had happened, how things have progressed, the concerns that we have with the bill. I explained that the NDP would not be supporting this legislation.
He knew this anyway, because of work we had done in the past, the support I have provided, and the things we were doing together with other people to build awareness and to try to deal with this scourge of teen suicide. He understands my commitment. He, too, is shaken by the infringement on privacy provisions that are part of this bill. I am not going to tell the House that he gave me a pass, but he understands my concerns. He appreciates that I have tried to work, and will continue to work, with him and others to deal with this problem.
The point is that we are here. It has been a year and a half since I introduced the private member's bill, and it is another year and a half into this serious problem. We have still not dealt with it.
I get discouraged sometimes in this House when it seems that we cannot get from one point to the other without creating all kinds of controversy and hard feelings, bitterness and division.
Right now, as we speak, there are people in communities who are helping to build awareness of why cyberbullying is wrong. They are coming up with strategies to identify when teenagers and others are beginning to experience feelings of depression and suicide.
One of the parents I spoke to said that the most gratifying thing that happens as he goes across the country talking to junior and high school students is when the 12-year-olds and 13-year-olds come up to him. They are saying there is a problem and that this is what they are doing about it. The students are telling him what they are doing because they recognize it.
This is what is happening in communities across the country. People are recognizing that they have to step up and do something, because unfortunately governments are not up to the task.
Motions in Amendment
Protecting Canadians from Online Crime Act
September 22nd, 2014 / 5 p.m.
Pierre-Luc Dusseault Sherbrooke, QC
Mr. Speaker, I am very pleased to rise in the House today to speak to Bill C-13, which has already been debated for three hours today and has just come back from the Standing Committee on Justice and Human Rights.
A lot of hard work has been done on this bill. I am thinking, in particular, of the many witnesses who appeared before the committee. I am happy to hear that good work was done in committee.
However, the results of that work are perhaps not quite what we on this side of the House expected. Unfortunately, the amendments that were made to this bill were not sufficient for us to be able to support it at report stage.
I must first say that this bill may be a rather sensitive subject for some people. It may hit close to home and be a sensitive subject for some people because it involves bullying and there is often mention of the unfortunate incidents that were reported in the media. It is vital that we remember the importance of the work we are doing as parliamentarians to try to address this issue, which sometimes has tragic consequences. Bullying is a problem in our society that has evolved over the past few decades. Obviously, the Internet is one of the elements that has changed the problem of bullying. It is becoming easier to bully someone online today because we can easily access the Internet with our cell phones and computers.
This problem has evolved and has become quite a significant issue for our youth and also for adults. As parliamentarians, we must discuss this problem and try to solve it, even though there is no magic solution. We have to consider the underlying causes. My colleague from La Pointe-de-l'Île often talks about the underlying causes. Furthermore, we must not believe that the solution to the problem is to create a Criminal Code offence and that all of a sudden there will be no more bullying. It is never that simple. It is therefore important to discuss this problem and other ways of dealing with it.
We were also somewhat disappointed with the process that led to the drafting of this bill. Members will remember that Bill C-30 was also introduced in the first session of the 41st Parliament and that there was significant opposition to that bill from civil society and the different political parties. It is unfortunate that Bill C-13 contains some of what was widely rejected in Bill C-30. I am talking about the provisions concerning the electronic surveillance of Canadians.
My impression is that the government is taking Bill C-13 and the issue of bullying—which is a very important and sensitive issue—and integrating certain parts of Bill C-30, which was very controversial, as I said. It was abandoned by the Conservatives after the uproar that followed its introduction. It is sad that they are using this tactic and are trying to do indirectly what they said they would not do. It was abandoned. It is disappointing to see that it is now being included in Bill C-13.
This issue could have been settled quickly, or at least more quickly. I do not think that we are going to solve the problem of bullying overnight. However, we could have at least moved in the right direction.
The hon. member for Dartmouth—Cole Harbour introduced a worthwhile bill. Unfortunately, it did not receive the Conservatives' support. However, one part of his bill did find its way into the Conservatives' current bill. I find that somewhat curious.
If I understand correctly, the Parliamentary Secretary to the Minister of Justice seems to have an explanation. He says that it is all well and good to add an offence to the Criminal Code, but it is also important to grant investigative powers to the police.
I do not remember when exactly during the process of studying the bill this happened—it may have been the day after it was introduced—but the Spencer decision provided some clarification. Unfortunately, the bill did not change, even in light of the decision, which defined the limits that can be placed on electronic surveillance and the amount of personal information Internet service providers can share about Canadians.
I believe that the government should have complied with the Spencer decision, but that is not the case, unfortunately. That is the main reason we are opposing this bill.
I would like to clarify the court's decision in Spencer, which had to do with providers sharing information. The decision clearly established that Canadians had the right to online anonymity and that the police had to get a warrant to find out Internet users' identity.
However, Bill C-13 creates a new policy that allows access to personal information with or without a warrant. This opens the door to obtaining personal information without a warrant even though the Spencer decision said the opposite. It said that a warrant was absolutely necessary to get personal information about a Canadian citizen on the Internet.
Internet service providers have access to that information. They can find that information and share it with law enforcement to investigate bullying cases, for example. The Spencer decision set boundaries for getting information by requiring a warrant. However, Bill C-13 opens the door to getting personal information without a warrant.
All of this is unfolding in an era when people have growing concerns about electronic surveillance because the government is monitoring our actions more and more. Not long ago, groups met peacefully to talk about issues or met in the streets to demonstrate. We know that the government, which has thousands of employees who monitor Canadians, would watch what such groups were doing during those completely peaceful meetings and demonstrations that could not have given anyone any reason to believe there was a threat to Canada's security.
This is unfolding in an era when people feel that the government is collecting more and more information about Canadians. We also have to set clearer boundaries about how this information is obtained and about Canadians' right to privacy.
I would be pleased to answer my colleagues' questions.
Motions in Amendment
Protecting Canadians from Online Crime Act
September 22nd, 2014 / 4:45 p.m.
Ève Péclet La Pointe-de-l'Île, QC
Mr. Speaker, I am pleased to rise in the House for the second time to speak to Bill C-13, which addresses cyberbullying.
When the government announced Bill C-13 to combat cyberbullying, everyone thought it was a good idea. Perhaps the government had finally come up with a good idea. Everyone here knows that cyberbullying is taking a heavy toll on our youth. The people who work on the front lines—psychoeducators who work in high schools, street outreach workers and everyone else who works with youth—know how bullying can destroy lives, individuals and families. Some cases have made headlines, including the case of young Rehtaeh Parsons. Unfortunately, we know just how far cyberbullying can go. It can lead to suicide. No one in the House would say that we can remain indifferent about an issue as important as cyberbullying.
In the first speech I gave on Bill C-13, I emphasized the need to take action on the ground. I could even draw a parallel with the speech I just gave this morning on Bill C-36. The Conservatives often think they can use justice to solve all the problems inherent in a given situation. In the case of prostitution, for instance, inherent problems include poverty, exclusion and mental illness. The same is true when it comes to bullying. Some of the factors involved in bullying cannot be addressed through criminalization.
The provisions of Bill C-13, which makes it an offence to distribute intimate images, are a good start. In fact, the bill fits in with the bill introduced by my colleague from Dartmouth—Cole Harbour, which aims to prevent the kinds of situations that unfortunately led to the suicides of several young Canadians over the past few years.
Upon closer examination of the bill, one can see that it refers to various subjects ranging from cyberbullying to terrorism, banking information, telemarketing and theft of a telecommunication service.
Most of the provisions have very little if anything to do with cyberbullying. This bill is similar to the Conservatives' previous Bill C-30, which allowed access to Canadians' personal information.
The parliamentary secretary said that it was debated extensively and thoroughly examined in committee. That is all wonderful, except that all the experts agree that the study should have been even more thorough when it comes to the provisions regarding access to information. That is why we asked that the bill be split. Unfortunately, because we ran out of time, the provisions on cyberbullying were not examined much, if at all. We focused on the access to information provisions.
This issue is very important for our young people, and I find it extremely unfortunate that the debate is centred around access to information. That has nothing to do with our young students or the young girl who is being bullied by her classmates or receiving hateful messages on Facebook.
Access to information will have no impact on this girl, or perhaps it will, unfortunately, if the government wants access to her private information, which would be too bad. This is not going to help young people who need their government to work for them and do something about this.
I also asked a number of questions about an oversight mechanism. I would like to point out that the Conservatives refused to adopt such a mechanism. My colleague from Gatineau proposed an amendment requiring the department to report to Parliament on the use of this type of power. I would like to note that section 184.4 of the Criminal Code has already been struck down by the Supreme Court, not because the mechanism allowed information obtained without a warrant to be shared, but because application of that section did not include any oversight mechanism or notification mechanism. According to the Supreme Court, the rights of people being wiretapped were intrinsically violated because they did not know they were being tapped. At the end of the day, without an oversight mechanism, we are giving the police and the government power without accountability. We can agree that we are giving nearly absolute power to the minister and police officers to access Canadians' information.
The Supreme Court was clear. I have not even touched on the Supreme Court's recent decision in Spencer, which reiterates that telecommunications companies do not have the right to turn Canadians' private information over without a warrant. It is a violation and it is unconstitutional because there is no oversight mechanism.
I made a comparison with section 188, which was not struck down by the Supreme Court. That section allows for warrantless wiretaps, but it includes an oversight mechanism. The department is therefore obliged to report to Parliament on warrantless wiretapping.
According to the Supreme Court, this is clearly unconstitutional. Unfortunately, the Conservatives refused to adopt our amendments on creating such a reporting mechanism, which is too bad. We can already see that part of the bill will likely be challenged in court or even deemed unconstitutional.
Who will be the main victims of that challenge? My colleague from Gatineau told us several times. The main victims of the Conservatives' incompetence at drafting bills and studying issues thoroughly are the victims of bullying. The main victims will not be parliamentarians, lawyers or judges. No, the main victims will be victims of bullying, who unfortunately will have to wait for a legal challenge—which could take years and could go all the way to the Supreme Court—before justice is served.
I would like to underline the fact that when the Minister of Justice held his press conference, he said that Bill C-13 only legislated on a specific issue, namely cyberbullying. I know of several articles that quoted him as saying that this was not an omnibus bill and that its only purpose was to legislate on cyberbullying.
However, this bill contains a clause that gives not only peace officers, but also public officers access to these powers. Several experts wondered who would have access to these powers. Who would have access to Canadians' information? Would it be only the police, and only in specific situations, or would it be public officers from Revenue Canada in other situations?
This bill is so badly written that, unfortunately, the main victims who will be denied justice will be victims of bullying. Is that really what the Conservative government wants?
Motions in Amendment
Protecting Canadians from Online Crime Act
September 22nd, 2014 / 4:45 p.m.
Jinny Sims Newton—North Delta, BC
Mr. Speaker, I want to thank my colleague, a hard-working member, whom I know is stellar in his service to his constituents. He does amazing work here in the House as well.
This bill is all about politics. It is about playing politics. We have parts of a bill that the current government said would never come forward again, and elements of that bill in Bill C-13 right now that are from Bill C-30. This bill, or kernels of it, originated with the NDP, as I said, by my hard-working colleague from Dartmouth—Cole Harbour.If this bill were separated, we could have passed it months ago. That concerns me. However, once again, the Conservatives would rather bury things that get into invasion of privacy.
Even the mother, in one of our most tragic deaths, says that this bill goes too far.
Motions in Amendment
Protecting Canadians from Online Crime Act
September 22nd, 2014 / 4:30 p.m.
Jinny Sims Newton—North Delta, BC
Mr. Speaker, it is my pleasure today to rise and speak on a motion that I believe to be critical, so it saddens me that I will have to speak against it. It is Bill C-13, an act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act.
Let me give a bit of perspective. In that regard, I want to congratulate my colleague from Dartmouth—Cole Harbour, who introduced Bill C-540 in 2013, following the tragic death of Amanda Todd and other victims of cyberbullying, including Rehtaeh Parsons. These deaths moved the nation. I would say that the feelings across the country were palpable. It did not matter whether one lived on the west coast, on the Prairies, or on the east coast; families right across Canada lived the pain that those families went through.
The bill put forward by my colleague was a fairly reasonable one. As members know, at that time the Conservatives introduced legislation as well, Bill C-30. Bill C-30 was from the minister of the day, who is no longer in the House. There was a huge, almost unprecedented reaction to that bill, especially through social media. Just to remind us all, Bill C-30 was called the “protecting children from Internet predators act”. That bill was rejected not only by the NDP, based on what was included in it, but also by privacy advocates and the public. That reaction forced the Conservative Party to back away from it.
I can remember some of the rhetoric from that time when it backed away from that legislation, which was ill thought out and an absolute invasion of privacy. At that time, I can remember hearing commitment from the government side that any attempts to modernize the Criminal Code would not contain the measures contained in Bill C-30. Now here we are on Bill C-13.
There are parts of this legislation that the official opposition heartily and happily supports. On more than one occasion we have suggested to the government that if it is serious about taking action on cyberbullying, it should separate the bill. We offered to expedite it through the House. It would have been law already.
However, once again I find the party sitting across from this side playing games with a very sensitive issue, producing a bill that has some good parts to it that we want to support but then throwing in parts that it knows will make it difficult for us to support the bill.
The NDP is never scared of hard work, whether it comes to standing up to speak on issues in the House and taking up allocated time spots, and normally filling in even for the government side because it does not take up all its speaking slots, or when it comes to committee work. In order to make this bill palatable and make it go through the House, the opposition put forward 37 amendments. They were all reasonable amendments that would have added some balance to the bill.
What is shocking is that the government did the same as it has done on bill after bill. It was its way or no way. It rejected every single one of those amendments.
The Canadian Bar Association came to present as well. I am not talking about a radical group here. I am talking about lawyers. The Canadian Bar Association expressed the same concerns as the NDP and other witnesses. It put forward 19 possible amendments to the bill, but not one of those amendments was taken into consideration.
Once again, the Conservatives are trying to bury things in a bill so they can get their agenda through, but at the same time they are trying to bury some legislation that is absolutely needed.
I have been a teacher all of my life. I am also a mother and a grandmother. The world has changed for our children. They are spending more time on the Internet or attached to their cell phones, although many of us are guilty of that too. They are socializing differently as well.
We have to look at modernizing the way we see bullying. It is no longer just about bullying in the playground, where a child is bullied physically or verbally, face-to-face. Cyberbullying allows for a certain amount of anonymity. We have seen the tragic results of that kind of bullying. We have seen its impact on young people.
It is upsetting for me today to speak against a bill that contains a component that I support. I would urge my colleagues across the way to take a second and consider that we could have the cyberbullying component in the bill turned into legislation quickly. We need to get off the ideological idea that we cannot have a simple bill that deals with one issue. We have to get off the ideological idea that other stuff has to be thrown in to get the ideological agenda done. It also gives those members an opportunity to stand up later and say that the NDP voted against this.
June 3rd, 2014 / 11:40 a.m.
Nominee for the position of Privacy Commissioner of Canada, As an Individual
June 3rd, 2014 / 11:40 a.m.
June 3rd, 2014 / 11:40 a.m.
Mathieu Ravignat Pontiac, QC
Thank you very much. You answered my question.
You were the Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio. Those three departments are trying to obtain personal data and information on Canadians.
In your capacity as Assistant Deputy Attorney General, were you asked to provide your opinion and advice regarding Bill C-30 introduced by Minister Toews?
June 3rd, 2014 / 11:25 a.m.
Stephen Anderson Executive Director, OpenMedia.ca
Thanks for having me, and thank you for this opportunity to speak before the committee regarding Bill C-13.
I'm Steve Anderson, the executive director of OpenMedia.ca. We're a community-based organization working to safeguard the open Internet.
As you may know, OpenMedia.ca works with many other groups to lead the Stop Online Spying campaign, which successfully convinced the government to shelve the lawful access legislation, Bill C-30. Nearly 150,000 Canadians took part in that campaign.
Last year we started the Protect Our Privacy coalition, which is the largest pro-privacy coalition in Canadian history, with over 50 organizations from across Canada.
You know you've hit on a common Canadian value when you have groups ranging from the Canadian Taxpayers Federation, the Council of Canadians, to small businesses, to labour unions, all joining forces on this issue of privacy. As it stands, we have a privacy deficit in Canada, and I'm afraid that Bill C-13 will only deepen that deficit.
I believe this privacy deficit is the result of a democratic deficit. If the government, including members of this committee, were listening to the concerns of Canadians, there is no way you would be paving the way for a range of authorities to have increased warrantless access to our sensitive private information.
To help bring the concerns of Canadians to this committee, I have crowd-sourced this presentation for you today. I asked Canadians online what they thought I should say, and I have done my best to incorporate their input into my presentation. I'll reference them from time to time.
I'll confine my presentation to the lawful access portion, as that is where Canadians have expressed the most concern and I think where I personally also have the most concern.
The Canadians I spoke to had three main concerns: first, immunity for activities that victimize innocent Canadians; second, accountability and oversight; and third, data security.
On immunity, which I'll talk about first, Bill C-13 in its current form provides communications companies that hand over sensitive information about innocent Canadians with absolute immunity from criminal and civil liability.
Recent revelations show that the government agencies made 1.2 million requests for customer data from telecom companies in only one year and that companies apparently complied with those voluntary requests most of the time. After learning of this, Canadians have been looking for more safeguards rather than weakening privacy safeguards.
At the moment, an unlimited swath of information can be accessed by a simple phone call to an Internet service provider. Government agencies don't even need to provide a written request, and we are told that some agencies even refuse to put their requests in writing to avoid a paper trail. This extrajudicial practice works, because there is a loophole that allows authorities to obtain voluntary warrantless access to law-abiding Canadians' sensitive information.
The disclosure immunity provided in Bill C-13 will make the privacy loophole even bigger by removing one of the few incentives for telecom companies to safeguard our data from warrantless disclosures.
Canadian citizen, Gord Tomlin, had this to say on the matter via Facebook:
If 'authorities' need information, they can get a warrant. It's not onerous, it's one of the checks and balances that is supposed to protect our system from abuse.
Danielle had this to say on the OpenMedia.ca website:
If accessing an individual's private information is not arbitrary but is justifiable, then a warrant can be obtained. Otherwise, it is expected that the law [will] protect us from privacy violations...
There were many more like that.
Providing telecom companies who engage in extrajudicial disclosure of Canadians' sensitive information is encouraging moral hazard. It's encouraging reckless and irresponsible behaviour.
I'll now move on to accountability and oversight.
Canadians find it troubling that Bill C-13 makes little effort to keep government agencies transparent and accountable. Most shockingly, there is no requirement that officials notify those innocent Canadians who have had their data stored in government databases. The lack of knowledge and consent by those victimized through surveillance and warrantless disclosure is frustrating to many Canadians.
As one Canadian put it:
I would like to see a requirement that persons whose data has been accessed, be informed of this fact and that there be a major penalty...if there is a failure to comply with this requirement.
The proposed lowering of the “reason to suspect” threshold for transition data warrants is also of concern to Canadians. We're talking about the collection of data—and let's be clear about this—that can reveal political and religious affiliations, medical conditions, the types of activities we engage in online and offline, and whom we socialize with. This is incredibly invasive stuff.
On the topic of accountability, several people also highlighted the costs associated with these data transfers and that they would have to pay for them, and that it would limit our digital economy.
On data security concerns, many Canadians are concerned with how secure data will be once authorities expand their collection through the measures in Bill C-13.
Given recent breaches at federal offices—the CRA and student loans, for example—many Canadians question if we can trust government authorities to properly protect their data from cybercriminals and identity thieves.
One person online said: The federal government, and indeed the vague category of 'public officials,' has a poor track record of protecting private information already. It's common occurrence in the Canadian news environment to hear about some government agency or officials losing the confidential information of Canadians such as last March's revelation the government had lost the student loan information of nearly 600,000 Canadians. Broadening the powers of officials to access this information only increases the danger that confidential information will end up in the wrong hands.
Bill C-13 also problematically expands the bureaucrats and agencies that can access our private information, including CSEC and CSIS, which are currently facing their own crisis of accountability, given the recent Snowden disclosures. I fail to see how that is connected to cyberbullying at all.
Bill C-13 does not, in its current form, provide effective measures to increase transparency, accountability, or reporting on warrantless access to private data.
In sum, I recommend that this committee remove the telecom immunity and weakening warrant standards, while adding new reporting and accountability measures to this bill.
I also want to join the growing numbers calling for you to split the bill up so that we can move on the cyberbullying portion, which I think there is growing consensus around, minus some reforms, and have a proper debate on lawful access.
As one person put it, “Any expansion of government powers needs to be linked to a compelling societal need.”
The lawful access section is not connected to cyberbullying. I don't think that connection has been made for Canadians in nearly enough detail.
I also think it's worth repeating what Carol Todd, the mother of cyberbullying victim Amanda Todd, told this committee. She said:
I don't want to see our children victimized again by losing privacy rights. I am troubled by some of these provisions condoning the sharing of the privacy information of Canadians without proper legal process.
I think both those on the front lines of law enforcement and Canadians want authorities to have the tools tailored to bringing a variety of criminals to justice. What this bill does at the moment is unnecessarily combine some of those tools with unpopular mechanisms that encourage mass disclosure of sensitive information.
I implore the committee to consider that just one database, the RCMP's Canadian Police Information Centre, has sensitive data on more than 420,000 Canadians. These people have no criminal record of any kind. Many have their information stored due to simply having suffered a mental health issue.
I'd also consider that a Canadian named Diane is one of more than 200 Canadians who recently came forward to say that their personal or professional lives have been ruined despite never having broken the law. Why? Because information about them has been wrongfully disclosed to third parties—in Diane's case, her employer.
Now consider the fact that in recent years federal government agencies alone have seen over 3,000 breaches of highly sensitive private information of Canadians. Consider also that this has affected an estimated 750,000 people.
In Diane's case, she was the victim of a false accusation, which was withdrawn years ago, yet it continues to affect her career. Diane's response after being victimized by this privacy intrusion and having her professional life unfairly curtailed was, unsurprisingly, disbelief, shock, and anger.
Now imagine that Diane was your family member or someone you know. You don't need to put them at risk like this. You can choose to split up the bill and make the necessary reforms whilst dealing with cyberbullying.
Why should Canadian victims be re-victimized by violations to their privacy? Why should those with mental health issues need to live in fear? They don't.
Canadians, including some of the government's biggest supporters, whom I'm working with closely on this matter, are wondering why the government is deepening our privacy deficit when other countries are beginning to rein in surveillance. They're wondering why you're mismanaging our data security.
In closing, as Jesse Kline wrote in the National Post last week, “When the Canadian public, parents of victims of cyberbullying, privacy commissioners and former cabinet ministers all voice serious concerns about a bill, it is a sure sign that something is wrong, and the government should listen.”
May 27th, 2014 / 11:25 a.m.
Marian K. Brown Executive Member, Criminal Justice Section, Canadian Bar Association
Thank you, Ms. Schellenberg.
We hope that our input today will assist you in understanding how the draft provisions would function, if they're implemented, and of course in understanding what constitutional or charter issues may arise.
We are proposing numerous amendments that all have one of two main goals. Our first goal is to ensure that only truly intentional cyberbullying is prosecuted, and our second is to ensure that privacy interests are protected when data is seized.
Our written submission provides many details that we will not be able to cover today. What I will do now is give highlights of our recommendations on cyberbullying, on lawful access, and on the Competition Act.
First with respect to cyberbullying, as you know, the bill criminalizes a particular form of cyberbullying, which is the non-consensual distribution of intimate images. Distribution of sexual images of children is already prohibited by the child pornography provisions by the code, but the new section 162.1 proposed in Bill C-13 criminalizes non-consensual distribution of anyone's intimate images, not just young people's. In the CBA's view, this new offence is better suited to dealing with youth cyberbullying than using the child pornography provisions for youth conduct.
We're recommending some amendments that would more closely restrict the new offence to situations of truly intentional bullying. We echo Mr. Spratt's concern about the current wording of proposed section 162.1, which includes the alternative of recklessness. That could, in our view, criminalize conduct that is merely careless, and carelessness is an aspect of youth behaviour. Prosecuting someone who does not have the knowledge or intent required for a criminal offence would be a violation of section 7 of the charter.
In our written submission, at page 5 of the English version, we give an example of an adult distribution of images that would constitute reckless or careless conduct, but which is probably not the aim of this legislation. Because there are scenarios in which carelessness or reckless distribution under the current wording could incur criminal liability, we're recommending two specific changes to the wording.
Our recommendation 2, which appears at page 6 of the English version, is that the following phrase should be added to the offence section: “with intent to annoy, embarrass, intimidate or harass that person”. It's a much more specific formulation of intent. Our recommendation 4, at page 7 of the English version, is that the offence section be amended to remove the words “being reckless as to whether or not that person gave their consent”.
So we would take out the alternative of recklessness. In our view, those two amendments would ensure that only the distribution of images with a malicious intent would be prosecuted and would ensure that young people are not prosecuted for their merely careless or thoughtless distribution of images.
I'll turn now to our key submissions regarding lawful access. Seven of the eight main lawful access powers in this bill rest with the judiciary; that is to say that seven of those eight powers consist of judicial orders or warrants. The one exception is the preservation demand by an officer, whereby data is not seized without judicial authorization but is simply ordered to be held, so that it cannot be deleted, for a period of time.
So there is no warrantless seizure provision under this proposed regime, but the CBA recognizes that the issue of privacy in data is much broader than these particular Criminal Code seizure provisions. As we've heard from other presenters, perhaps the greatest concern is about law enforcement's obtaining data through the cooperation of service providers without the use of any of the eight powers that are covered in Bill C-13. Obtaining data outside of the Criminal Code purports to be authorized under PIPEDA, the electronic documents act, and other privacy statutes.
We feel it's important to comment that even if the lawful access provisions in Bill C-13 are made perfect, this will not eliminate arguments that PIPEDA and the other privacy acts perhaps should be more strictly applied. Even the very best drafted Criminal Code provisions will not diminish the arguments that voluntary cooperation between service providers and law enforcement should be more closely monitored.
Because of that bigger picture, two of the CBA's recommendations are quite broad. Our recommendation 8, at page 12 of our written submission, is that a single entity be created to monitor the impact of the seizure, retention, and use of personal information by Canadian law enforcement agencies.
Our recommendation 17, at page 24 of the English version of our written submission, is that the federal government conduct an independent comprehensive review of privacy interests in the context of electronic investigations.
Those sound very broad, but we're in a new world here. We're at a perfect storm of legal change and technological change, and it's no wonder that we're having difficulty with it.
Given the bill that you have to work with today, in our written submission we make several specific recommendations for amendments. We believe that three amendments in particular are key to avoiding violations of privacy interests under section 8 of the charter.
Our recommendation 9, at page 14 of the English version of our written submission, is that the officers' preservation demand, which is section 487.012—the only power without judicial authorization—should be limited to exigent circumstances, where data would otherwise be lost or destroyed before a judicial authorization can be obtained.
Our recommendation 14, at page 19 of the English version, is that the threshold for a transmission data production order—and that's section 487.017—should be raised from “reasonable grounds to suspect” to “reasonable grounds to believe” because transmission data may reveal private conduct.
Similarly, our recommendation 15, at page 20 of the English version, is that the threshold for a transmission data recorder warrant, section 492.2, also should be raised from “reasonable grounds to suspect” to “reasonable grounds to believe”, again because transmission data may reveal private conduct.
I'm going to say a few more words about transmission data. Our understanding is that it's not the same thing as metadata, which we understand to be data left by web browsing that can be located on a personal computer that is seized under a search warrant. We understand transmission data, as defined in this bill, to include not the contents of the communication, but only its origin and destination, direction, duration, time and date, size, and the protocol and type of the communication. That limited definition is very important because intercepting the contents of a private communication actually is a criminal offence under section 184 of the Criminal Code, unless a wiretap authorization is in place.
Bill C-13 cannot entail monitoring of the content of private communications.
I don't want to overlook the so-called immunity section, but unfortunately our working group did not discuss it in detail or make written recommendations about it. You've heard from other speakers about the terms of that section. All we can recommend is that you look closely and comparatively at the proposed section 487.0195, the existing section, which is old number 487.0114, combined with section 25 of the code, and you may wish for comparative purposes to also look at the immunity provision that exists for people who voluntarily assist with wiretap orders, which is section 188.2 of the Criminal Code. You'll see in that section that there is full civil immunity only for people who assist where there is either a judicial authorization or an interception in exigent circumstances. It's a more limited option for immunity.
Justice and Human Rights
Committees of the House
May 26th, 2014 / 4:05 p.m.
Scott Simms Bonavista—Gander—Grand Falls—Windsor, NL
Mr. Speaker, I want to thank my colleagues for allowing me the time to do this. I also want to thank my colleague, the Liberal member of Parliament for Charlottetown, who did an extensive amount of work on this, as well as the member of Parliament for Malpeque and the member of Parliament for Mount Royal.
The enactment would amend the Criminal Code to provide most notably for a new offence of non-consensual distribution of intimate images. As well, there would complementary amendments to authorize the removal of such images from the Internet and the recovery of the expenses incurred to obtain the removal of images, the forfeiture of property used in the commission of the offence, a recognizance order to be issued to prevent the distribution of such images, and restriction of the use of a computer or the Internet by a convicted offender.
We are talking about the power to make preservation demands and orders to compel the preservation of electronic evidence, new production orders to compel the production of data relating to the transmission of communications and the location of transactions, individuals or things.
A warrant that would extend the current investigative power for data associated with telephones to transmission data relating to all means of telecommunications, or warrants that would be associated with telephones and the like, as I mentioned, a streamlined process of obtaining warrants and orders related to an authorization to intercept private communications by ensuring that those warrants and orders could be issued by a judge who would issue the authorization and by specifying that all documents relating to a request for a related warrant or order would be automatically subject to the same rules respecting confidentiality as the request for authorization.
Last, it would also amend the Competition Act to make applicable for the purpose of enforcing certain provisions of the act the new provisions being added to the Criminal Code respecting demands and orders for the preservation of computer data and orders for the production of documents related to the transmission or communications of financial data.
It would also amend the Mutual Legal Assistance in Criminal Matters Act to make some of the new investigative powers being added to the Criminal Code available to Canadian authorities executing incoming requests for assistance and to allow the Commissioner of Competition to execute search warrants under the Mutual Legal Assistance in Criminal Matters Act that I spoke of earlier.
There are some messages that we would like to put out there regarding this. This has been a long time coming. It was first introduced in the House on November 20, 2013. Cyberbullying is a scourge upon our society, as we all know, and has been evidenced certainly in the last two or three years. This is a problem not just in Canada but around the world. The party is supportive, in principle, of legislative measures that would provide law enforcement with additional tools to combat cyberbullying.
This is an area where the Criminal Code urgently needs to be updated to reflect the realities of modern technologies.
We believe, however, that legislative measures alone are insufficient to combat cyberbullying and we urge the government to commit to a broader, more holistic strategy to deal with cyberbullying that would also include public awareness resources for both parents and kids to allow them to see the signs of cyberbullying which they probably would not recognize under normal circumstances.
We introduced cyberbullying legislation last session that would have modified some Criminal Code offences to cover modern technology, as is done in C-13, which the Conservatives and the NDP voted down. The Liberals introduced legislation that would have addressed new technologies back in 2005.
The Conservative government is only figuring out now that police forces need these tools to keep up with technologies that are increasingly a part of today's crime.
We believe that a balance must be struck between civil liberties and public safety, particularly when it comes to warrants that may be intrusive and overboard. We do not support the measures that were in Bill C-30, which even the government had to withdraw because of the outrage some time ago.
Some of the bill would duplicate the rejected Bill C-30, such as word for word reproductions of the changes, subsection 487.3(1) of the Criminal Code and all but one word changes to subsection 492.1 and subsection 492 regarding warrants.
We are very concerned about efforts to reintroduce lawful access, which the Conservatives promised was dead at the time. That is not necessarily the case now.
Though the title is the protecting Canadians from online crime act, nobody is actually protected under this act. In typical fashion, this is all about punishment rather than prevention. Complex problems like cyberbullying require more than blunt editions to the Criminal Code. This omnibus bill touches everything from terrorism to telemarketing, cable stealing to hate speech, and is an affront to both democracy and the legislative process in the omnibus form that has been in going on in for quite some time.
We have seen that through the budget bills and a lot of the legislation that has passed through the House, so we can only assume that this type of pattern will continue with this legislation. Therefore, we support the motion to have the bill split and the provisions relating to cyberbullying be contained in a stand-alone bill at committee.
We are proposing two amendments.
The first is an amendment that would provide for a statutory review of elements of the bill, including the voluntary disclosure provisions. The sunset clause is a part of a law statute and we can repeal the law part over a specified time period.
The second is an amendment that would require an actual basis a report by telecoms detailing the volume of information being disclosed without a warrant.
As we mentioned earlier, we talked about the splitting of this bill, and we certainly feel this is a way to go. This would be the most responsible thing to do in light of the omnibus nature of this legislation. I believe that by doing this, we would be taking a principled and responsible approach.
Again, I go back to our original message of cyberbullying, which is a scourge on our society. What we can do in the House is reflect by looking at stand-alone legislation dealing with that. Basically, by making this a stand-alone provision, it would go a long way in enhancing the debate. Given the fact that we have had so much debate in the past, so much opposition and that there has been so much talk in the public realm about this legislation, this is something we can support.
Justice and Human Rights
Committees of the House
May 26th, 2014 / 3:10 p.m.
Françoise Boivin Gatineau, QC
That it be an instruction to the Standing Committee on Justice and Human Rights that, during its consideration of Bill C-13, An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act, the Committee be granted the power to divide the Bill into two bills: the first consisting of clauses 2 to 7 and 27, related to cyberbullying; and the second bill containing all the other provisions of Bill C-13.
Mr. Speaker, I thank my colleague from Châteauguay—Saint-Constant for seconding the motion.
As the saying goes, if at first you don't succeed, try, try again.
After second reading stage of Bill C-13, it seemed clear to me that it would be best to divide the bill because the bill had strayed from what it was meant to address, which is cyberbullying. It does much more than that. This bill has some 50 clauses, but barely seven or eight clauses on cyberbullying. The issues it addresses vary.
Members must understand why it is important to remove clauses 2 to 7 and 27 from the bill so that we can finish studying them right away. The rest of the clauses need to be studied much more carefully, as many people are telling us.
I made the request subsequent to a motion that did not receive the required unanimous consent of the House. I am trying again because we are now studying different parts in committee and have additional information.
Unfortunately, it is unlikely that we will be able to keep working much longer because the government has indicated that it wants the bill passed before the end of this session. That concerns me because there are not many meetings left. There are still many, many people who want to testify. I would hate to hear that the process is going to be fast-tracked for the most contentious clauses on terrorist activities, telemarketing and theft of a communication service. That is what I suspect will happen so that clauses 2 to 7 and 27 get passed. The bill also includes some of the provisions from Bill C-30.
There is also the issue of privacy and the fact that Canadians have already overwhelmingly rejected the provisions contained in Bill C-30. There is also a series of concerns about which of the provisions where included in Bill C-13, which ones were set aside, which ones were put back in with slight changes, and what kinds of changes are needed.
These are very specialized provisions. They are so specialized that it is rather odd in committee. Parents of victims are there on certain days. At those times we are truly reminded of why Bill C-13 was supposedly introduced. It completely changes how the committee works. The next day, the witnesses might be cyber experts or police representatives.
I do not think this request is crazy or illogical. It makes sense. I have a hard time understanding the government's insistence on passing a bill that contains provisions that are not necessarily widely accepted or that have not been approved by even a small segment of the Canadian public.
The mother of one victim, Amanda Todd, made statements to the committee that some found incredible. If anyone could have been expected to support Bill C-13 100%, it would have been one of the victims in this huge file, but this mother herself recognized that we should not have to choose between security and privacy. These two concepts are extremely important.
I am not saying that we should reject the provisions in Bill C-13 that deal with access to the private data of some individuals in this context.
We have to recognize just how important this is and give it the thorough study it merits, the way it should be done. We have not done that kind of analysis in a long time.
The committee received a letter, and I would like to read parts of it that I find particularly persuasive. I am not the only one calling for the bill to be divided in two, as we have asked in the motion. The letter was addressed to the committee chair, the very competent member for Burlington, and came from Ontario's Information and Privacy Commissioner, whose stance is echoed by many of her counterparts. I would like to read parts of the letter because she puts a fine point on why we are making this request:
As the Information and Privacy Commissioner of Ontario, I am writing you to assist the Standing Committee on Justice and Human Rights in fulfilling its duty to ensure that Canadians have both effective law enforcement and rigorous privacy protections. To find the most compelling testimony on this point, you need look no further than to the statement made before your committee on May 13, 2014:
“We should not have to choose between our privacy and our safety. We should not have to sacrifice our children's privacy rights to make them safe from cyberbullying, 'sextortion' and revenge pornography”.
As you know, these are the words of Carol Todd, whose daughter Amanda took her own life after being shamelessly bullied and abused by a person yet to be brought to justice. The federal government, this Committee, and Parliament as a whole each owe families like the Todd's, as well as all Canadians, their best thinking about both privacy and safety. The fact that over the last decade, the government has repeatedly failed to pass legislation updating police surveillance powers is a sad testimony to the government's failure to honour Canadians' reasonable expectation that they deserve and can have both.
The time for dressing up overreaching surveillance powers in the sheep-like clothing of sanctimony about the serious harms caused by child pornography and cyberbullying is long past. In my view, the government should immediately split Bill C-13 and move ahead quickly to deal with those provisions of the bill that directly address the proposed new offence of non-consensual distribution of intimate images...In the future, further consideration may need to be given to how best to respond to other forms of cyberbullying, for example, of the most unfortunate kind, recently seen on an Instagram account called “IF_U_ON_THIS_KILL_URSELF” (as reported on by Global News). In the meantime, the remaining surveillance-oriented provisions of Bill C-13—some 46 of its 53 pages—should be withdrawn and redrafted.
This work should be approached with reasoned thought and without imposing a time constraint—as this government so often does with everything it introduces in the House—so that we can arrive at and draft good provisions. This is not a trivial matter. We are dealing with people's privacy.
The goal here is to stop crimes, but that does not mean giving carte blanche to the government and police forces to do whatever they want, however they want, whenever they want. There are rules. However, in Bill C-13, those rules are not very clear, and experts do not seem to agree on them. The rules need to be studied and possibly amended, and that will not happen with Bill C-13 as presented in the House and in committee, or with the deadlines imposed on us, or with the commitments by the minister and his government to have this bill passed before the summer break.
It is absolutely cruel, when I see the list of all those who asked to be heard, including experts from across the country. They wanted to be heard on the issue so that we can give our law enforcement agencies the best tools to do their work properly, while respecting Canadians's right to privacy.
Canadians also have the right to be protected by the government. They are already protected by the charter. It has already been noted that Bill C-13 does not include anything on wiretapping. Under the Criminal Code, a person must be notified that they were wiretapped. What is more, there is absolutely nothing in Bill C-13 to indicate that the person concerned has to be notified that some of their information and data has been shared. There needs to be some sort of mechanism to inform a person that their data has been shared. There is the issue of immunity that was given to the telecommunications companies.
The real goal of Bill C-13 was to penalize behaviours that have to do with the distribution of intimate images. That is all. Clauses 2 to 7 and 27 have to do with crime related to the distribution of intimate images. That is not the only form of cyberbullying. It is the rest that shows what is really behind Bill C-13.
Our motion calls for an instruction to be given to the Standing Committee on Justice and Human Rights that, during its consideration of Bill C-13, An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act, the Committee be granted the power to divide the bill into two bills: the first consisting of clauses 2 to 7 and 27, related to cyberbullying; and the second bill containing all the other provisions of Bill C-13. It is not only experts who are calling for this action to be taken, but also the mother of one of the victims, a woman whom the government likes to quote regularly.
I think that she was very wise in making this recommendation. The government would not be showing weakness by supporting this motion. Rather, it would be showing that, for once, it is listening to people's recommendations. Our intention is not to reject everything in the second part of the bill, and I would not want to hear the members opposite saying that we do not want to give the police the tools they need. That is not at all the case.
What we want to do is to make sure that the tools that we give them are legal and that the application of Bill C-13, if it is passed without amendment, will not eventually lead to a case before the Supreme Court where another bill has to be rejected. Such an approach will just keep bringing us back to square one. That is not a good way to show serious concern for smart justice in Canada.
Give us some time. That does not mean giving us time to stall for nothing. It means giving us time to hear what experts have to say on the subject. Give us the time to analyze each clause without feeling like we have a gun to our heads because the work needs to be done in the next few hours, the bill needs to come back before the House by June 10 or the bill needs to be passed before the House breaks for the summer. That is not an intelligent way to pass a bill that is so important and that will have such a great impact. Many people are still not sure what the consequences of this bill will be.
We are not rejecting the bill. It simply needs to be examined more intelligently.
May 6th, 2014 / 11:50 a.m.
Partner, McInnes Cooper, As an Individual
I tend to disagree with the interpretation of the statute that says lawful authority is anybody with a badge. Let me tell you what is routinely disclosed without a warrant in these sorts of cases. Many of these are reported in court cases. You just have to go the legal databases and search for PIPEDA requests.
The investigating officers have an IP address. They're able to obtain an Internet protocol address related to somebody of interest, and that can be because that person is believed to be sharing child pornography. Most of your activities that take place online expose your IP address to any computer that you connect to. So they have that IP address. They don't know who it is. They can determine, through public databases, what is the Internet service provider. They can go to that Internet service provider and say, “We have an IP address. We want to know who it is. We don't have enough information to convince a judge, but we're going to tell you that it relates to a child exploitation investigation or otherwise.”
Some Canadian telcos, if that request is in writing, will hand over that information. Other Canadian telcos will say to come back with a warrant because they're not comfortable that they're allowed to under PIPEDA. That's essentially the nub of it. None of them, to my knowledge, will hand over content. If you say “I want the content of the e-mail inbox of Joe Blow at whatevermail.com”, they're not going to get that without a warrant. We've heard in the debates over Bill C-30 that this is not private information. In fact it is. I believe you have a privacy interest in your activities online, and I think most Canadians would agree. Most of the debate, I think, turns on that particular question.
May 6th, 2014 / 11:45 a.m.
Sean Casey Charlottetown, PE
Thank you, Mr. Chair.
Thanks to all the witnesses.
Mr. Alhattab and Madam Guthrie, I particularly appreciated your comments with respect to restorative justice. I do think that's something that should appear much more on the agenda.
I share Mr. Fraser's view that the major problems with this legislation relate to the reincarnation of Bill C-30. Ms. Guthrie spoke to that at some length as well.
Mr. Fraser, I want to focus in on the section that you referenced, proposed section 487.0195, and on the warrantless, secret, non-consensual, voluntary disclosure of information. You spent some time talking about the types of information that are available on a reduced legal standard. I know that when you listed that information you weren't talking about the stuff that can be obtained without a warrant.
Just for the benefit of everyone here, what is available without a warrant? What can be lawfully voluntarily disclosed by telephone companies under the protection of PIPEDA?
May 6th, 2014 / 11:20 a.m.
Feminist Advocate, As an Individual
Thank you for having me here today.
I'd like to thank my fellow witnesses, who both had really eloquent and valuable things to say.
My name is Steph Guthrie. I am a freelance feminist and digital strategist. For the last year I have been speaking and writing at length about the issue that Bill C-13 claims to tackle.
While the bill's name in the press is the “cyberbullying” bill, the more specific problem that I think is addressed by components of Bill C-13 is actually known as “revenge porn” more specifically, a term that I hate for both its inaccuracy and its sexualized sensationalism. Whatever you call it, though, we're talking about sharing sexually explicit images without the consent of the person or persons depicted. While some such cases might involve hacking, in many cases the subject actually consented to share the images with one person for private use, such as a sexual partner, and that person then violates their trust and shares the image with others, despite the subject's in most cases obviously implied expectation of discretion.
The crux of the harm that is inflicted here is the violation of informed consent. If I share an image with another person privately, that consent is not transferable. Had I known that the other person might later share the image with others, I would be unlikely to consent to letting that person access the image in the first place. So any consent I provide to a person accessing that image is pretty clearly contingent on them keeping it to themselves.
For me, informed consent is an integral part of privacy. Indeed, in her influential privacy by design framework, Ontario Privacy Commissioner Ann Cavoukian cites freely given and specific consent as a vital element of digital privacy. Cavoukian's principle can be applied to non-consensual intimate image sharing, which—let's be honest—is a really clunky and cumbersome way of describing what is ultimately cybersexual assault. A survivor of cybersexual assault did not provide specific consent for their image to be shared with others. The perpetrator simply treated their consent as transferable to any other use, any other disclosure.
As I'm sure some other speakers over the course of considering this bill will share with you, the results of this are devastating. It does mostly happen to women, although men are not immune, and it destroys their lives. The images follow them into their job interviews, on their first dates, and to the laundromat. In some cases the perpetrator of the cybersexual assault incites violence or stalking against the survivor, publishing their personal information and the dates and times of their professional engagements, encouraging their “fans” to make an appearance.
In any case, the assault constricts the survivor's ability to live life normally and comfortably because they are constantly living with the idea that the people they encounter in their day-to-day lives may know intimate things about them that they didn't consent to share. Even if the survivor knows they did nothing wrong, they still must deal with the judgments, misperceptions, and intrusions of others. For many survivors, their ability to move freely, safely, and happily in this world is limited.
I am fortunate to not yet have been attacked and tormented in this way, but I could be. It's common for authorities and the media to malign people who send so-called sexts as teenagers with poor judgment and poor impulse control. But that doesn't line up with reality. According to a Harris Poll in 2012, a full 40%—that's not a majority, but it was the largest percentage—of people who send these images are in the 18 to 34 age range; and 20% of all adults sext. In fact, a McAfee survey puts that number closer to 50%. I'm willing to bet that a lot more than 50% of us have trusted a romantic or sexual partner only to learn later that our trust was misplaced.
Cybersexual assaults can and do happen to a lot of us. When Rehtaeh Parsons died by suicide after months and months of torment from her peers and indifference from authorities following her own sexual assault, first in the flesh, then online, I heard Prime Minister Stephen Harper say: “...we've got to stop using just the term bullying to describe some of these things....What we are dealing with in some of these circumstances is simply criminal activity.”
While I join my fellow witness in favouring a restorative justice approach, at the time I was already a vocal advocate for legislation to tackle cybersexual assault, and was accustomed to hearing political and legal decision-makers blame the victim for it. So I was cautiously optimistic at Prime Minister Harper's remarks.
Then I realized, as many Canadians realized, that most of Bill C-13 is not really about what happened to Rehtaeh Parsons. Buried within Bill C-13 is a set of decent Criminal Code amendments to tackle cybersexual assault. Though I do see some minor issues with those amendments, which my fellow witnesses have already covered off quite well, and I can certainly refer to them in greater length during the Q and A, I do think that the base for good cybersexual assault legislation is there in Bill C-13. But you have to dig pretty hard to find it amid the many other sweeping amendments that more closely resemble the lawful access provisions found in Bill C-30 back in 2012. That was the time when Canadians were told that opposition to the bill was tantamount to supporting child pornographers.
While some of the more egregious elements of the former Bill C-30 have been removed from this latest incarnation—and I'm glad to see that—it still significantly expands the state's capacity for surveilling Canadians without the pesky oversight of our court system.
One of the most troubling provisions in Bill C-30 was that it mandated the disclosure of user information to police without a search warrant. The newly designed provision in Bill C-13 very cleverly softens this, instead stating that police can request information, and the person or organization to whom they direct their request can voluntarily comply. However, the very next provision in Bill C-13 removes all civil liability for anyone who discloses another person's information to police upon request. This granting of immunity removes much of the incentive for an Internet service provider, or anyone else, to deny the request.
As law enforcement officers and prominent figures of power and authority in our lives, it is also debatable the extent to which a person might feel compelled to provide the information to a police officer, even if technically they are volunteering to do so.
In the last week, a steady stream of damning media reports have indicated that the practice of voluntarily disclosing user information to police is already in full swing among Canadian telecommunications companies, with the state making over a million requests for user information in the course of a year—and that was back in 2011—all without warrants, i.e., without due process. All were quite obviously without users' consent.
Perhaps most of Bill C-13 isn't really about cybersexual assault, but I find it interesting that it violates some of the same privacy principles, such as freely given and specific consent. Most of us do not and would not give free and specific consent for the state to access any, and potentially all, of our data by way of our Internet service providers if we had any meaningful choice in the matter.
The consent we give is to our Internet service providers. If the police want our information because they suspect we are engaged in criminal activity, well, most of us would assume that is what search warrants are for.
Bill C-13 enshrines the idea of transferable consent in law, immunizing anyone who shares our information and violates our privacy without adequate legal justification for doing so.
While obviously different in many ways, the limitations on personal freedom imposed by Bill C-13 bear some striking similarities to those imposed by cybersexual assault. The state could be following us into our job interviews, on our first dates, or to the laundromat. The bill's provisions will restrict Canadians' ability to live life normally and comfortably because they are constantly living with the idea that the state, when they encounter it, may know intimate things about them that they didn't consent to share. Even if they know they have done nothing wrong, they must still deal with the judgments, misperceptions, and intrusions of the state.
For many Canadians, if Bill C-13 passes as written, our ability to move freely, safely, and happily in this world will be limited. That's why it pains me to say that after a year of arguing for legislation that criminalizes cybersexual assault, I cannot support this legislation as written. We should separate the components of Bill C-13 that deal directly with cybersexual assault from those that do not and debate them as different pieces of legislation. They are different issues.
Not only would this be in the best interest of Canadians, but I believe it would do greater justice to survivors of cybersexual assault than amalgamating their cause with another one that serves the state's pursuit of power more than it serves Canadians.