Will cyberbullying bill open door to Lawful Access?

A bill introduced yesterday by the Conservative government to combat cyber bullying could also have the effect of making it easier for Canadian Internet service providers to permit authorities to conduct online surveillance and metadata collection.

Bill C-13, the Protecting Canadians from Online Crime Act which was introduced by Minister of Justice Peter MacKay comes with provisions that take on rising concerns of many Canadians about cyberbullying.

For instance, the proposed code makes it illegal to distribute “intimate images” without the consent of the person in the image. The bill also makes it easier for authorities and affected parties to have those images scrubbed from the Internet.

However, a section of the bill dealing with voluntary disclosure appears to encourage ISPs and other online companies to disclose information about their customers without a court order.

The bill states:

  • For greater certainty, no preservation demand, preservation order or production order is necessary for a peace officer or public officer to ask a person to voluntarily preserve data that the person is not prohibited by law from preserving or to voluntarily provide a document to the officer that the person is not prohibited by law from disclosing.
  • A person who preserves data or provides a document in those circumstances does not incur any criminal or civil liability for doing so.

In the light of recent revelations by former United States National Security Agency security contractor Edward Snowden of the NSA’s metadata harvesting activities and subsequent reports of telecoms and ISPs willingly providing law enforcement agencies with information on their subscribers, this offer or immunity from liability to ISPs and telecom companies for “voluntarily” providing customer data is very troubling, according to privacy advocates.

For instance, it has led Michael Geist, University of Ottawa e-commerce law professor to wonder if the controversial Bill-C30, the Protecting Children from Internet Predators Act introduced in February 2012 by then Public Safety Minister Vic Toews is being reintroduced “under the guise of the cyberbullying legislation.”

“The similarly-named bill is now marketed as an effort to crack down cyberbullying , yet the vast majority of the bill simply brings back many (though not all) lawful access provisions,” Geist wrote in his recent blog.

“It was introduced as Canada’s cyberbullying law, but it’s more than that,” said privacy law expert David Fraser in his recent blog. “The summary of the bill only refers to the portion of the legislation that deals with cyberbullying, but the government has buried a number of other provisions in that statue that seem to have little, if anything at all to do with bullying.

The legislation being introduced yesterday would:

• Prohibit the non-consensual distribution of intimate images;
• Empower a court to order the removal of intimate images from the Internet;
• Permit the court to order forfeiture of the computer, cell phone or other device used in the offence;
• Provide for reimbursement to victims for costs incurred in removing the intimate image from the Internet or elsewhere; and
• Empower the court to make an order to prevent someone from distributing intimate images.

However, the production order mentioned in the new bill comes with much lower requirement for accessing metadata.

“Ironically the lower standards for meta data comes just as the Supreme Court of Canada has warned that ‘it is difficult to imagine a more intrusive invasion of privacy that the search of a personal or home computer,’” said Geist.

If you’re thinking of emailing politicians to complain about the bill to the government, C-13, may have that covered as well.

The harassment provision in the proposed bill appears to be quite broad suggesting multiple communications to a person may be deemed harassment:

Everyone commits an offence who, without lawful excuse and with intent to harass a person, repeatedly communicates, or causes repeated communications to be made, with them by a means of telecommunication.



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Jim Love, Chief Content Officer, IT World Canada

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Nestor E. Arellano
Nestor E. Arellano
Toronto-based journalist specializing in technology and business news. Blogs and tweets on the latest tech trends and gadgets.

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