The Lawful Access Legislation: Does it Really Criminalize Linking & Anonymity?

The government’s plans to include lawful access provisions within its omnibus crime bill has attracted mounting attention in recent days as many commentators express concern that the legislation could create criminal liability for linking to content that incites hatred and for using anonymous or false names online. The concerns started at the Free Dominion site and have since spread to Brian Lilley at the Toronto Sun and Jesse Brown’s blog at Maclean’s

As I have argued for a long time, there are many reasons to be concerned with lawful access. The government has never provided adequate evidence on the need for it, it has never been subject to committee review, it would mandate disclosure of some personal information without court oversight, it would establish a massive ISP regulatory process (including employee background checks), it would install broad new surveillance technologies, and it would cost millions (without a sense of who actually pays). Given these problems, it is not surprising to find that every privacy commissioner in Canada has signed a joint letter expressing their concerns.

Yet while lawful access raises many issues (such that it clearly does not belong in an omnibus bill placed on the fast track), I do not believe that creating criminal liability for linking or anonymous speech are among them.

The source of the latest round of concern stems from the Library of Parliament’s Parliamentary Information and Research Service legislative summary of Bill C-51. On the issue of hyperlinking, it states:

Clause 5 of the bill provides that the offences of public incitement of hatred and wilful promotion of hatred may be committed by any means of communication and include making hate material available, by creating a hyperlink that directs web surfers to a website where hate material is posted, for example.

I must admit that I think is wrong. The actual legislative change amends the definition of communicating from this:

“communicating” includes communicating by telephone, broadcasting or other audible or visible means;

to this:

“communicating” means communicating by any means and includes making available;

The revised definition is obviously designed to broaden the scope of the public incitement of hatred provision by making it technology neutral. Whereas the current provision is potentially limited to certain technologies, the new provision would cover any form of communication. It does not specifically reference hyperlinking.

I recognize that one could make an argument that a link could be included within communicating by any means or making available, but that strikes me a big stretch. The Supreme Court of Canada is examining this issue within the context of libel in the Crookes v. Newton case which should provide further guidance on the meaning of a “link” under Canadian law. In the earlier B.C. Court of Appeal decision, a majority of the court concluded that merely linking to another site does not make that person a publisher of the material found at that site. Pending the outcome of that case, I think the legislative summary likely overstates the breadth of the provision.

I similarly think the anonymity concerns are overstated. The legislative summary on this issue states:

The existing provisions of the Code regarding the offences of sending a message in a false name and sending false information, indecent remarks or “harassing” messages (the French term “harassants” currently used in subsection 372(3) of the Code is replaced by “harcelants” in the bill) refer to certain communication technol­ogies used to commit those offences, such as telegram, radio and telephone. Clause 11 of the bill amends those offences by removing the references to those specific communication technologies and, for some of those offences, substituting a reference to any means of telecommunication. As a result, it will be possible to lay charges in respect of those offences regardless of the transmission method or technology used.

This summary had led to concerns that this prohibits false names on the Internet. The problem with the summary is that it doesn’t mention that the provision includes an “intent to injure or alarm” component. The full provision states:

Everyone commits an offence who, with intent to injure or alarm a person, conveys information that they know is false, or causes such information to be conveyed by letter or any means of telecommunication.

In other words, the offence is not conveying false information, but rather conveying false information with the intent to injure or alarm. This does not stop people from posting anonymously, unless they do so with the intent to injure or alarm, in which case arguably they should not be shielded from liability merely because they are using the Internet.

While I am skeptical about the interpretation involving linking and anonymity liability, the latest round of concerns provide a textbook illustration of why the lawful access bills should not be included in the omnibus crime legislation. Lawful access is complex legislation that touches on a very wide range of issues, many of which extend far beyond conventional criminal law. They are not part of the group of bills that advanced through the legislative process but ultimately stalled. Given that the proposals breed uncertainty and have never been the subject of committee hearings or debate, lumping them together with many other bills represents a serious threat and is bound to result in only a cursory review of an important piece of legislation.


  1. bigcitylib says:

    Though the Crookes case also gives examples of where linking to defamation WAS defamation. I would think that C-51 just broadens that kind of reasoning to include Hate Speech. A case like:

    “X conclusively proves that all Muslims are subhuman *here*.”

  2. Anarchist Philathrapist says:

    This is only the start, the cons are going to fk the internet in this country over SO hard. I’m done, I have no intentions of listening to any “law” I don’t agree with. Our gov’t can go fk itself.

  3. Slow down .. you move too fast,
    I see no reason why all the crime legislation need be passed in an omnibus bill. The Cons now have a majority, take your time and do it right.

  4. Cost?
    Most the cost to the ISPs you are talking about are already there. Staff already has security checks and that other junk.

  5. HRC and HRT implications
    The codification of this sort of thing into law will give the HRC’s and their ilk yet another weapon in their already vast arsenal. “Why don’t we settle this here at the tribunal so you don’t get a criminal record if this thing goes to a real court?” Passing this type of legislation would actually make the HRC’s look good…never thought anything could do that.

  6. And how would you define “alarm”

    Even with your clarifications, I am still deeply concerned about the anonymity clauses. How would one define “intent to alarm”? Alarm by definition means “to make fearful or apprehensive; distress”. Under this definition, one could therefore argue that jokes or sarcasm directed towards an individual violate these laws. Jokes or sarcasm don’t always translate as intended over the Internet and are often based on “false information”.

    So, if I make a joke using the Internet handle “StephenHarper” directed towards an individual based on false information and it distresses that individual, would I be in violation of this law?

  7. FYI
    Your “argued for a long time” link is broken — at least in terms of what I think you mean for it to do.

  8. Anonymous says:

    To Jake
    I think we need to be clear about what it is to be anonymous. Anonymous should mean that you cannot be traced by the courts, the police, government, banks, insurance agencies and other employers. You are using a trusted VPN service that does not log your IP address, such as the TOR network.

    In this case, laws of speech no longer apply to you; you have free speech. What you are referring to, ie. using a handle, is not anonymity. To the thousands of people with ‘lawful access’ your IP is still YOU.
    Your handle is just what the public sees above your posted comments etc.

    With that said, I think the concern is for anonymity, for free speech. Professor Geist’s ‘clarifications’ about how you can still use a handle as long as you don’t break the law, should give us cause to wonder if he understands the difference.

    And if he does, is he being misleading?

  9. Anonymous too says:

    Canada’s privicy commissioner recommends…
    “Take advantage of technologies that enhance your security and privacy when you use the Internet, such as digital signatures, data encryption, and “anonymizing” services.”

    from this page:

    let’s see if that recommendation changes with ‘lawful access’, when anonymity is outlawed.

  10. “Lawful access” is a very broad term, encompassing both technical access and the legal hoops needed to access the information. I remember 14 years ago or so that there was discussions surrounding modernizing the “lawful access” laws to enable law enforcement greater technical access; that is the ability to get warranted information from a greater number of sources than just the telephone company. This was at a time when the internet was just starting to take off and cable internet was starting to become a reality. Since law enforcement needs access to the communications to do prosecutions, concern was that not having the legal ability to intercept communications that did not occur on a phone line would become an albatross in court or prevent prosecutions altogether (since law enforcement was unable to gather wiretap evidence). In this sense some of the provisions of the bill make sense, as it simply recognizes the new forms of communications.

    Since then there has also been a push for greater ease of access, basically reducing the hoops. Some of this is a reaction to, I suspect, concerned citizens groups demanding faster police response with things like parental abductions and the Amber Alert system. Some of it is, I suspect, simply that some within the law enforcement community would rather not have to take the time to convince a judge to issue a warrant. I personally see no reason why police should have greater ease of access to my communications; nor do I see a need to them to have access to any more historical information than they would get from my telephone.

    Now, the question of who pays for it… well, of course the Crown would want the ISPs to foot the bill. This would allow them to stretch the budgets further in these times of belt tightening.

  11. Blawblaw says:

    Using the criminal law as leverage is extortion and is a criminal act itself. Not that I would put it past the HRC functionaies to do something illegal.

  12. Blawblaw says:

    Using the criminal law as leverage in a civil suit is extortion and a criminal act itself. Not that I would put it past an HRC functionary to do something illegal.

  13. Lawful access legislation?
    Is this an attempt to stop the spread of Islam? Because that’s a religion spreading hate, hate towards all non-muslims including Jews and Christians, hate towards Western civilization, hate towards our country and what it stands for.

  14. The last thing you want to do is piss off anonymous.

  15. So would discussing the nature of largely unreported information such as the fukushima fallout and how it may impact canada, or the fact that that the government deactivated our radiation detection network a short time after the incident… would that be considered “raising alarm?”

    Would discussing the spurious claims of the U.S government stating they’ve killed Osama Bin Laden also fall under that category?

    It almost seems like this sets the precedent to threaten people into not discussing things that might be detrimental to certain interests.

    I smell a civil conflicts brewing if its as bad as I think it is.

  16. Anonymous kids too says:

    Think of the children
    So there’s 14 million kids on Facebook who’se whole cultural identity can be deleted if it’s found out who they really are. I suppose we should start by deleting all their accounts; that’ll teach them to be anonymous and to try to get onto Facebook! Actually, it will teach them to be anonymous and then get on facebook!

  17. Since when…
    … is it an offense to “alarm” somebody, whether under the cloak of anonymity or otherwise, regardless of the veracity of the information you use to do so? I’m super-fucking-alarmed at the prospect of 4 years of majority corporatist rule, should the PM be put away because he terrifies me??

    @burnov: LOL

  18. Can Free Speech Be Alarming? says:

    I agree with burnov and Alarmed.

    The Fukushima fallout issue may be a perfect example. There is currently an obvious media blackout about the ongoing disaster, an apparently complete lack of monitoring of what and how much we receive in the various parts of the country, and of the food we import, and in this context of oblivion an absence of the debate we could be having regarding nuclear plants on Canadian soil. It would seem a logical counterpart of the government’s “position” about Fukushima to consider as an “intention to alarm” any discussion that brings into question what it has decided is harmlessness. It could target a useful site like, which gathers news from various sources about Fukushima, or even someone quoting or discussing what independent experts are saying (and which doesn’t match the government’s view).

    Obviously, there are many examples. This was just one. If dropping depleted uranium on faraway countries isn’t alarming to our government, one can only suppose the same government would consider it an intention to alarm if someone is alarmed about it and talking about it. From the boogeyman bin Laden and other fairy tales used by the powers-that-be to feed their military and control madness to the erosion of our sovereignty by the trade agreement (sellout) negotiated by our federal and provincial governments for the EU’s corporations, the list of things one can be alarmed about, while our government isn’t, seems to have been growing.

    The question asked by Alarmed seems therefore much more legitimate than this government and the laws it would like to make.

  19. Ed Davies says:

    Are pseudonyms false?
    IANAL but…

    In British law (and so, I imagine, in Canadian law) you can use any name you chose so long as there’s not an attempt to deceive. Changing your name by deed poll is useful in some circumstances to avoid legal hassle but is not required. Germany, as I understand it, is different in that there you must use your “official” name and it’s quite complicated to get it changed.

    Therefore, I don’t think that using a pseudonym is “false”, particularly if it is obviously a pseudonym. The exception would be if you used a name with the intent or knowledge that it would be confused with somebody else’s real name or pseudonym.

  20. Friendly neighbourhood troll. says:

    Well I guess I’m out of a job.

  21. maebnoom says:

    …and so the real “bad guys” simply go deeper underground, via encryption, anonymizing servinces, and masking etc.

    For every action…

  22. Spike Humer says:

    “World most popularity and effectiveness come through communication by using some resources.”

  23. Take this and shove it
    Never thought I would see this day….. A day when remaining anonymous will mean having a VPN tunnel off shore and using Tor for any network activity.

  24. Definitions
    The language of the law, generally, remains exceptionally vague, opening up doors for abuse at every corner. What constitutes “hate”, for example? If I say I “hate” Microsoft, a recognizable group, does that constitute a hate crime? Or what if I hate Americans or Canadians; without even implying any threats, am I now a criminal? Moreover, what about this “alarm” clause — I find the Canadian government’s stance on many things, including this bill, to be extremely alarming. Are they breaking the law? Can we sue?
    The Thought Police are alive and well in the western world.

  25. Hate speech
    The laws against it are oppressive, and frightening. The odd thing is, I don’t think I even engage in it. I dislike it… but it’s a slippery slope, and as it is, I think there are clear abuses of its prosecution today.

    As crime reduces, these guys want to keep their jobs, keep their income flooding in. So they have to create criminals. That’s why these guys will go start a white supremacist forum and say ‘jews are evil’ to invite people to agree with them, and then arrest them for doing so. They are creating their own victimless crimes so they can steal from the public while looking like white knights doing so.

    Our tax dollars should be focused on protecting people. We’re not doing that, we’re just punishing more.

  26. What is hate speech?
    Anything the government decides it is. I remember the gossip about Helena Guergis’s coked up airport tirades. The stories of her husband’s illegal business dealings. Then some reporters heard it and did their job. The Ottawa rumour mill should be protected by free speech. It’s often the only way to have any transparency.

    This government hates the truth and can’t withstand scrutiny. They will make good citizens criminals at the rate they are going. The tighter they hold onto power the more it will slip out of their grasp. Enjoy your wealth while living in fear in your gated community.

    P.S. the Captchas are getting crazy hard. I don’t want to solve a puzzle every time I want to join the conversation.