Federal act would make hacking to interfere with elections a crime

Ottawa will make it clear that hacking into a computer during a federal election period is a criminal offence, foreign states will be forbidden from buying advertising during a federal election period and federal political parties will have to create a policy for protecting personal information in their databases if proposed changes to the Elections Act are approved.

These are part of a broad piece of legislation updating the laws overseeing federal elections introduced Monday by the Liberals. They hope to have it passed in time for the scheduled October 2019 vote.

The proposals in Bill C-76, called the Election Modernization Act, come amidst a U.S. indictment alleging Russia attempted to interfere in the 2016 U.S. election, and a NATO researcher who says Canada should assume Russia will attempt to interfere in the 2019 federal election. In 2017 the Communications Security Establishment (CSE), Canada’s electronic spy agency which is also responsible for securing government networks, warned in a report that it is “highly probable” cyber activity against democratic processes in other countries will be seen here.

Read the full text of the bill here

Read a government summary and backgrounders here

The Criminal Code already makes “unauthorized use of computers” a crime. The new law would also make it a crime to break into a computer where there is intent to obstruct, interrupt, or interfere with the lawful use of computer data during an election period.

Foreign governments are limited under current law to spending only $500 on advertising during a federal election. The new law would prohibit foreign entities from spending any money to influence elections. It would also be an offence for firms selling advertising space to knowingly accept elections advertisements from foreign entities.

The new law proposes prohibiting the distribution of materials, in any form, intended to mislead the public as to the source of the material. That might cover, for example, social media posts that purport to be from a group of Canadians but is in fact from a foreign government. In addition, Canadian-based non-political parties (called third parties) that spend$500 or more on partisan advertising or activities just before an election have to register with Elections Canada and report how money is spent.

This falls in line with a 2016 Elections Canada request for  a specific offence for creating and distributing false candidate or party campaign communication material, including false websites or other online or social media content, with the intent to mislead electors.

As for Canadian federal political parties, a constant criticism is that the Privacy Act — which sets the rules for how the government protects private information — doesn’t cover political parties. The proposed law fixes that by obliging federal parties to have an easily understandable policy for the protection of personal information containing the following.

The policy would include a statement outlining how, and what information is collected; how the party will protect personal information; and how the party will use personal information and under what circumstances personal information may be sold.

The proposals for federal political parties were criticized as being weak by Halifax privacy lawyer David Fraser of the McInnes Cooper law firm. “It doesn’t go anywhere near far enough in terms of making a difference … there’s no transparency, there’s no accountability” demanded of the parties.

“All other privacy laws you have a right to know what information an organization has about you and what they’ve done with it. None of that is imposed on political parties” in C-76, he said. “There’s no mechanism that holds political parties to their privacy policies: There’s no oversight and there’s no accountability, and there’s no requirement that they have in their privacy policies and practices anything that even roughly accords with good privacy practices … All it does is say ‘You have to tell us kind of what you do with personal information, but nobody’s really going to hold you to it.’ Which is a grave disappointment when you look at the sort of [voter] profiling which we understand political parties have been doing in Canada and elsewhere … in terms of micro-targeting advertising and things like that.”

He suspects Canadian political parties don’t want “somebody poking around in what they’re doing” in how they use social media and advertising during a federal election feeling certain techniques give one party an advantage over the other.

Fraser hasn’t had time to look deeply into the proposed bill’s attempt to eliminate foreign interference, which would cover social media posting and advertising. But, he said “the online advertising companies are going to be looking at that pretty closely because they’re implicated in it, in the sense that the legislation almost imposes a duty on them to help police that, which I think makes sense. One of the challenges will be dealing with non-political actors” such as lobby groups that are “pushing misinformation” and yet  protects freedom of expression.

The Elections Modernization Act does protect satire, he added.

To enforce the current and proposed changes the federal Elections Commissioner will be given the power to lay criminal charges, assess fines and to seek a court order to compel testimony.

Elections Canada has always had an eye on what goes on in social media. In an interview in February, former commissioner Marc Mayrand said his department monitored social media for how it relays information about the election process. “I was something when I was there (between 2011 and 2016) we were monitoring very closely … We were monitoring the main media, and had an official (social media) account that would immediately correct any misleading information about the election process itself.”

He also said he has “every reason to believe” that non-transparent interference through social media in elections will become more sophisticated. “Citizens have to be made aware of the risks of manipulation,” he said. “There’s a need for major civic education about these things, and disseminate best practices to guard against those misleading media.”

The potential for using social media for manipulating public opinion during an election period was highlighted by the indictment laid by a U.S. grand jury, which alleges Russians set up a firm called the Internet Research Agency in 2014 to impair, obstruct and defeat the 2016 election through fraud and deceit. Russians posed as U.S. persons — sometimes using stolen identities — and operated social media pages and groups designed to attract U.S. audiences, the indictment alleges. “These groups and pages, which addressed divisive U.S. political and social issues …  Over time, these social media accounts became Defendants’ means to reach significant numbers of Americans for
purposes of interfering with the U.S. political system.”

The indictment alleges certain defendants also staged political rallies inside the United States, and while posing as U.S. grassroots entities and U.S. persons, and without revealing their Russian identities and affiliation, solicited and compensated real Americans to promote or disparage candidates.

As part of the conspiracy, it is alleged, specialists were told to create “political intensity through supporting radical groups, users dissatisfied with [the] social and economic situation and oppositional social movements.” This included creating thematic group pages on sites such as Facebook and Instagram, as well as Twitter accounts designed to appear as if U.S. persons or groups controlled them.

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Howard Solomon
Howard Solomon
Currently a freelance writer, I'm the former editor of ITWorldCanada.com and Computing Canada. An IT journalist since 1997, I've written for several of ITWC's sister publications including ITBusiness.ca and Computer Dealer News. Before that I was a staff reporter at the Calgary Herald and the Brampton (Ont.) Daily Times. I can be reached at hsolomon [@] soloreporter.com

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