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CYBERLAW

Anti-terrorism bill could limit e-speech



MICHAEL GEIST

Thursday, October 25, 2001

The muted reaction to last week's introduction of Bill C-36, the federal government's 171-page anti-terrorism bill, came as little surprise. While the Privacy Commissioner has rightly raised alarm bells about the privacy implications of the proposed law, in the wake of the devastating Sept. 11 attacks it has become clear that many Canadians are willing to accept less privacy in return for greater security.

The proposed legislation will certainly accomplish that, as it contains significant new powers to identify, prosecute, convict and punish terrorist activity.

Less privacy isn't the bill's only impact, however. It will also have a significant effect on free speech on-line, including the removal of contentious content from the Internet and copyright reform.

If enacted, the law would reform the Canadian Human Rights Act, which has been a key government tool in the fight against on-line hate speech, as well as allow for the quick removal of hate materials from the Web.

Most importantly, it would lead to the ratification of a newly developed cybercrime treaty that will affect a wide range of on-line issues including copyright law and Internet service provider retention of customer data.

Canada's willingness to prosecute hate propagandists is well known. Recently, Ottawa has been engaged in a protracted legal battle with Ernst Zundel, a long-time Holocaust denier, over contents of his Zundelsite Web site (http://www.lebensraum.org).

The legislation of choice in the most recent Zundel affair is the Canadian Human Rights Act -- federal legislation that prohibits the use of telephonic communications tools for hate or discriminatory purposes. Canadian authorities have argued that the legislation can be interpreted broadly to include Internet communications, such as Web sites, since Internet traffic typically travels at some point through telephone wires.

As new Internet developments make this claim increasingly tenuous, a change was needed. It comes as part of the anti-terrorism bill, which broadens the Canadian Human Rights Act hate provision by clearly stating that telephonic, Internet and other communications tools are all covered by the legislation.

Bill C-36 also contains a framework for challenging and removing hate propaganda from the Web. The proposed approach explicitly permits Canadian courts to order the deletion of publicly available hate propaganda from Web sites. This applies to any material found on a Canadian server, regardless of where the site's owner is located.

Much like Bill C-15, the government's proposed criminal code reform that features a framework for the removal of child pornography from the Web, the proposed legislation grants the site owner the opportunity to challenge the content removal, since a judge must approve all removal requests.

Amazing as it may seem, despite these legal procedures, it may become tougher to remove Web sites featuring child pornography and hate propaganda than sites that contain a downloadable copyrighted song. The Canadian copyright reform proposals introduced this summer envision the creation of a notice-and-takedown system whereby ISPs would likely remove content when alerted of the presence of infringing content by the copyright owner. The owner can ask for the content removal without a court order. The Canadian Association of Internet Providers, the Canadian Chamber of Commerce and other groups have criticized the plan, calling instead for a "notice, notice, and takedown" process that would require the involvement of a competent court before content is removed.

The pressure for stronger copyright protections surprisingly comes from another source in the context of the fight against terrorism. In announcing the package of anti-terrorism measures, the federal government also revealed its intention to ratify the Council of Europe's Convention on Cybercrime. The cybercrime treaty, which until recently was largely secret, contains provisions that will make it easier for law enforcement authorities worldwide to co-operate when investigating various crimes involving computers and the Internet.

While the treaty will certainly help the battle against global cybercrimes such as hacking, denial of service attacks and fraud, it also addresses some surprising and controversial subjects.

For example, the treaty's Article 10 deals solely with copyright infringement, requiring all parties, with limited exceptions, to adopt under their domestic law a range of criminal offences for the infringement of copyright.

The treaty also addresses the issue of ISP preservation of data traffic.

Many countries have been grappling with whether service providers should be required to retain data on their customer's activities in the event that law enforcement authorities require such information.

In Europe the issue has yielded a hodgepodge of conflicting approaches, with countries such as Belgium requiring its ISPs to retain data for at least one year.

The cybercrime treaty will at least create some uniformity by setting standards for expedited preservation of data when requested by law enforcement.

Given the inclusion of controversial surveillance and arrest powers under C-36, it's easy to overlook the Internet implications of the proposed new law. Despite pressure to respond quickly to the threat of terror, we must carefully examine all of the bill's implications and take care to ensure that both privacy and free speech interests are not forgotten.
Michael Geist is a law professor at the University of Ottawa Law School and director of e-commerce law at the law firm Goodmans LLP. His Web site is http://www.lawbytes.com.
mgeist@uottawa.ca



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