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.
Thank you.