Earlier this week, I posted on how Canadian law already features extensive rules that can be used to target cyberbullying, which raises questions about the prime justification for Bill C-13 (the cyber-bullying/lawful access bill). That post attracted a response from the Department of Justice, which (consistent with politicians and other officials) points to a June 2013 report on cyberbullying from federal and provincial justice ministers as the basis for Bill C-13.

While the government seems to think the report provides a solid foundation for its bill, the reality is that the justification in the report for the lawful access provisions stands on very shaky ground.

First, the report offers practically no evidence to support the contention that the new lawful access provisions are needed. The report features extensive discussion on intimate images, but there is no substantive analysis on the need for lawful access provisions. Rather, the report recommends the lawful access provision by simply stating as fact that the current law is insufficient to meet the demands of cyber-investigations without actual evidence presented to support this statement. For example, the report claims that new preservation orders are needed for ISPs to preserve data that might otherwise be deleted, but no evidence is presented that data deletion has posed an investigative problem.

Second, the report does not specifically recommend that the new warrants carry the lower threshold found in Bill C-13. Rather, it merely recommends the creation of new investigative tools in which “the level of safeguards increases with the level of privacy interest involved.” The government seems to have assumed that metadata has a lower privacy interest, yet the Supreme Court of Canada reached the opposite conclusion last year in R. v. Vu, specifically citing to the privacy interests associated with the metadata. In fact, given the significant privacy interest associated with metadata and location information, Bill C-13 fails to meet the standard that even the Justice report seems to envision.