Appeared in the Toronto Star on November 22, 2013 as Lawful Access Returns Under the Cover of Cyber-Bullying Bill
In February 2012, then-Public Safety Minister Vic Toews introduced Internet surveillance legislation that sparked widespread criticism from across the political spectrum. The overwhelming negative publicity pressured the government to quickly backtrack by placing Bill C-30 on hold. Earlier this year, then-Justice Minister Rob Nicholson announced that the bill was dead, confirming “we will not be proceeding with Bill C-30 and any attempts that we will continue to have to modernize the Criminal Code will not contain the measures contained in C-30.”
Nicholson’s commitment lasted less than a year. Last week, Peter MacKay, the new federal justice minister, unveiled Bill C-13, which is being marketed as an effort to crack down on cyber-bullying. Yet the vast majority of the bill simply brings back many (though not all) lawful access provisions found in Bill C-30.
There were hints that this might be the government’s plan. In October 2012, the Canadian Association of Chiefs of Police renewed its call for lawful access (the bill was still on hiatus at the time), shifting its focus away from child predators to cyber-bullying. In fact, the lawful access issue has long been the source of changing justifications, moving from terrorism to spam to child predators and now to cyber-bullying.
The latest bill leads with cyber-bullying, creating a new offence for anyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person without consent. The offence carries up to a five-year jail term and judges are empowered to prohibit someone convicted under the law from using the Internet or other digital networks.
Most of the 70-page bill is devoted to bringing back the lawful access provisions, however (though two of the most controversial rules on mandatory warrantless access to subscriber information and Internet provider surveillance capabilities have both been removed). For example, the bill encourages telecom companies and Internet providers to reveal information about their customers to law enforcement without a court order by granting them immunity from criminal or civil liability for such disclosures. This provision opens the door to co-operation on the widespread surveillance activities revealed in recent months.
The bill also creates several new warrants with big privacy implications. One new warrant targets metadata, the information generated by email and phone communications such as location, time, device, and the person being contacted. Ironically, the warrant would establish a lower standard for metadata just as the Supreme Court of Canada recently warned that “it is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer”, pointing to metadata as one of the reasons why.
Another new warrant covers location information, including the ability to install tracking devices on individuals. The bill grants a judge the power to prohibit the disclosure of the existence or content of these warrants, meaning that subscribers may be kept in the dark when being tracked or having their information disclosed.
In addition to the new warrants, the bill criminalizes software that can be used to access services such cable television, Internet access, and telephone services without payment. The law previously targeted devices that could be used to obtain access, but the bill would expand the provision to cover software programmers that create code with these capabilities as well as users that download such programs.
Law enforcement officials have been asking for some of these provisions for many years and there could be a good debate on the merits of many of the proposed reforms. Yet the government is signalling that it would prefer to avoid such debates, wrapping up the provisions in the cyber-bullying flag and backtracking on its commitment to not bring forward Criminal Code amendments that were contained in the controversial Internet surveillance bill.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at firstname.lastname@example.org or online at www.michaelgeist.ca.