The Protecting Canadians from Online Crime Act, also known as the controversial cyberbullying and lawful access ("law adjacent" access?) bill is in the home stretch, about to be passed by the House of Commons. From the CBC: Cyberbullying bill inches closer to law despite privacy concerns - Politics - CBC News.
I have had a lot to say about it, so for background, please check out the Bill C-13 Tag.
I was invited to contribute to the Hill Times Policy Briefing on Information Technology that was released today. Here's what I had to say:
Canadians deserve to participate in an informed conversation about privacy and surveillance
A multi-year conversation about privacy and surveillance is finally coming to a head, and it may be one of the defining issues of our time. This is a pivotal aspect of the relationship between citizens and the state, and Canadians have a right to sufficient information about the government’s activities to contribute to an intelligent conversation.
The topic of privacy and government surveillance has been making headlines in Canada for the last several years. Huge numbers – MILLIONS OF REQUESTS! – grab attention, but there is little understanding of the circumstances under which information is requested and disclosed from telecommunications service providers, the extent to which law enforcement seeks information, or even the nature of the information. Canadian law enforcement and security agencies have many of the same powers as their US counterparts. Canada has an equivalent of the USA Patriot Act: this is little-known and the import is little-understood. Few Canadians are aware that laws, including the Customs Act, the Excise Tax Act and the Environment Act, authorize warrantless access to personal information without judicial oversight or notice to the affected persons. Nobody outside government knows how often or how these powers are used.
Ever since the first efforts at legislating “lawful access” years ago, civil society groups have attempted to engage law enforcement and government in a dialogue to understand privacy and warrantless access to information about citizens. Their efforts have reached a crescendo as leaks from Mr. Snowden, furor over Bill C-13 and the Supreme Court of Canada decision in R. v. Spencer draw further attention to the issue. More recently, it has been reported that Rogers and Telus are challenging an order that they turn over call records of more than forty-thousand customers in one “tower dump”.
Law enforcement’s participation in that dialogue can be summed up in the following: “trust us, but it’s not private information anyway so don’t worry about it.” Government and national security agencies stonewall, telling us: “we don’t talk about national security.” Or cabinet ministers state that questioning such powers puts one in league with child pornographers. The credibility of assertions that Canadians are not targeted for mass warrantless surveillance has been dramatically undermined by documents from Mr. Snowden’s cache. Speculation that members of the “Five Eyes” - Canada included - spy on each other’s citizens is left largely uncontradicted.
The result is an informational vacuum in which hard facts are rare, leading to dire and Orwellian speculation.
Until recently, the only visibility into the Canadian government’s demands for information about its citizens had to be coerced from either the telcos or government. Thankfully, a small handful of telcos followed the lead of Google, Twitter and Facebook by releasing “transparency reports” earlier this year. But even here, the information is sparse, incomplete and likely misleading.
The reported data does not tell us, for example, how many requests are related to call records (so-called metadata) or unlisted numbers, in comparison to looking up the owner of a particular phone number? How many requests sought customer info based on IP addresses, which was the focus of the Spencer decision? How many customer accounts are affected?
Canadians have a Charter-guaranteed right to privacy, which can be limited “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This is a critical balancing act, recognizing that the state has a compelling interest in protecting society and the national security. At the same time, widespread, warrantless surveillance of a population is one of the hallmarks of a police state and the antithesis of how most Canadians imagine their country.
To what extent are we a free and democratic society? The only way this conversation can take place is when law enforcement agencies and national security organizations are transparent about the use of these powers. We already have similar information about the use of wiretap powers under the Criminal Code, tabled in Parliament annually. Providing statistics cannot conceivably undermine security or the effectiveness of investigative techniques.
Canadians have a right to express informed opinions about where the line should be drawn and where the balance between privacy and security should rest. This conversation is one of the most important for our society, and Canadians have a right to an informed discussion. It may well be that Canadians will be satisfied where the lines are drawn and where the balance lies; but without transparency, we can only speculate.
David TS Fraser practices internet and privacy law with the firm McInnes Cooper. He is the author of the Canadian Privacy Law Blog (blog.privacylawyer.ca) and can also be found on Twitter at @privacylawyer. The views expressed are the author’s alone and should not be attributed to his firm or its clients.
In the past week, in a significant development, both Teksavvy and Rogers have released information that provides much greater insights into government demands for personal information from telecommunications companies.
Teksavvy is one of the largest independent internet service providers and they released their report in the form of a comprehensive response to the letter sent to them by the Citizen Lab's Chris Parsons (See: Citizen Lab calls for transparency by Canadian telcos). Many may remember that Teksavvy was the ISP that went to court to challenge a demand by a Hollywood studio for information about users who were alleged to have violated copyright.
Rogers is one of Canada's largest "full service" telecommunications service providers, offering landline and mobile telephone services, in addition to cable internet. Their report is slightly less detailed, presumably because they are very constrained by the government (by the Solicitor General's guidelines on lawful interception).
This is a great advance in transparency and a good first step. It also provides some useful information for the discussion and debate about warrantless disclosures of personal information by telecommunications service providers. The reports both show that in the period under discussion, both Rogers and Teksavvy disclosed customer information without a warrant in a range of circumstances.
The Teksavvy report shows they provided customer names and addresses when provided with an IP address in at least 16 out of the 17 such disclosures. The circumstances of those disclosures are not reported. (To be fair, they say in their letter that they will no longer do this.) The Rogers report shows they did the same in what they called
Child sexual exploitation emergency assistance requests:
Legal authority: The Criminal Code and PIPEDA. Details: We assist police during child exploitation investigations. Examples of info provided: Confirming a customer’s name and address when provided with an IP address so that police can get a search or arrest warrant to stop the sexual exploitation of a child.
The numbers of these warrantless disclosures are very high: 711 such disclosures. These are presumably controversial PIPEDA Requests, which a number of ISPs have agreed to cooperate with law enforcement when they are told it is connected with a child exploitation investigation. They cite PIPEDA as the authority, though the section in question (s. 7(3)(c.1)) does not require disclosure and is only applicable when the law enforcement agency has shown its "lawful authority" to demand the information. There is not yet any consensus about what "lawful authority" actually means.
For some really great reporting on these transparency reports, check out:
Now that Rogers in particular has made this disclosure, I'm looking forward to the other large telcos following suit.
Apparently my testimony tomorrow at the House of Commons Justice and Human Rights committee on Bill C-13, the Protecting Canadians from Online Crime Act will not be webcast. Nor will it be on C-PAC or available on Pay Per View at your local arena. So, in case you are interested in what I plan to say, here you go ... (subject to tweaking as I finalize the text)
Introduction
Thank you very much for providing me with the opportunity to speak with you today.
For the purposes of introduction, my name is David Fraser. I’m a partner with the Atlantic Canadian law firm McInnes Cooper, but I do need to emphasise that I am here speaking as a private individual and my comments should not be attributed to my firm, its clients or any other organization with which I am affiliated.
I have been practicing internet and privacy law for over a dozen years. I have represented a range of clients over the years, including victims of cyberbullying, victims whose intimate images have been posted online, and I have represented and advised service providers.
Most notably, I was part of a team at my firm that took the case of a 15 year old victim of cyberbullying to the Supreme Court of Canada, pro bono. This was the first time that the Court had the opportunity to consider the phenomenon of cyberbullying and the unanimous Court came out very strongly to protect the interests of the victim of sexualized cyberbullying.
I have also advised people who have been accused of cyberbullying. I hope that this experience from a number of different perspectives will provide this Committee with some assistance in its important task of considering Bill C-13.
Bill C-13 as a whole
I am disappointed that Bill C-13 combines two very different but related matters: the dissemination of intimate images, on one hand, and law enforcement powers more generally, on the other hand. Both aspects raise very important issues that merit close scrutiny but we are seeing that debate about police powers is overshadowing the discussion of cyberbullying.
That said, we have one bill in front of us and I’m pleased to provide you my thoughts.
Intimate Images
It has been suggested that Bill C-13, if it had been in force, could have saved Amanda Todd and Rehtaeh Parsons. That makes a good soundbite, but the world is much more complicated than that. Creation, possession and dissemination of child pornography is already a crime. So is the creation, possession and dissemination of voyeurism images. So is extortion. So is criminal harassment.
That said, there is a gap that we should fill: the malicious dissemination of intimate images without the consent of the person depicted in them.
We need to be very careful about how we craft this offence. The current reality is that young people and adults, whether we like it or not, take photos of themselves and voluntarily share them with intimate partners. Those digital images can easily be spread around without the consent of the of the person depicted.
We want to criminalize the boyfriend who posts pictures of his ex-girlfriend online without her consent -- so-called “revenge porn”. We want to criminalize the actions of the person who forwards around images of current or former intimate partners. In each of those cases, the individual would know -- or ought to have known -- whether they had the consent of the person depicted in the image.
But we shouldn’t inadvertently criminalize behaviour that is not blameworthy: someone finds a picture online of someone naked and forwards it to a friend. That person knows nothing about the circumstances in which the photo was taken. It could be a professional model. The photo may have been posted by the person in the photo herself. There’s no way to tell whether consent was obtained, whether there was any expectation of privacy at the time the photo was taken and the individual has no way of determining this.
The real challenge arises when addressing third parties who do not know the person depicted in the image, nor do they know the circumstances under which the image was taken. The provisions in the bill use a “recklessness” standard, which in my view is too low. Recklessness applies where a person should have looked into it but decided to be “willfully blind”. However, given the huge amount of naked images online, it is not possible to “look into it.”
This is especially important for online service providers who have no way of knowing and no way of finding out the circumstances under which an image was taken or uploaded.
We need to be especially attentive to crafting the law so that it will survive a challenge in the Courts and “recklessness” poses the risk of having the law struck down or making criminals out of people who are not truly blameworthy.
Police powers
Transmission data
Bill C-13 creates a “Production Order for Transmission Data” (section 487.016) and a “Warrant for Transmission Data Recorders” (section 492.2). It has been said that the purpose of the transmission data provisions of the Bill is to extend the current police powers -- that are coupled with judicial oversight -- related to telephony information to the internet age, without significantly extending the status quo.
While this may be a reasonable objective, this must be done very carefully because “transmission data” is significantly different from traditional telephony signalling data.
With conventional telephony, “transmission data” refers to the number called from, the number called, whether the call was completed and the duration of the call. In the internet context, the amount of information and what it reveals is dramatically different. It would include the IP address of the originating computer, information about the computer, the browser or other program being used, the internet communications protocol being used (web surfing, file transfer, peer-to-peer, voice over IP, video conferencing, etc.), the IP address or domain name of the server or computer being communicated with, URL of the page visited and whether the transmission was completed. An interception of “transmission data” would tell law enforcement agencies whether the target of the surveillance was visiting a search engine (and possibly what is searched for), an encyclopaedia (and again, what is being viewed), a poker site or a medical site. Furthermore, the data will also provide greater insight into the likely physical location of the surveillance target. This is a dramatic expansion of the information provided compared to traditional telephone communications.
Individuals use computer assisted communications in a very different manner than the telephone system. A telephone call is usually a singular event that creates one small packet of transmission data. A browsing session will create a new packet for each page or site visited, which amounts to many, many packets during a session. And information about what sites are visited and in what sequence also communicate -- by inference -- information about the content of that communications. Finally, individuals use web browsers for many purposes that go well beyond the traditional uses of telephones.
Even with the express exclusion of “content” from the definition, transmission data may provide insight into the content of the communications. And in any event, internet transmission data will provide law enforcement agencies with information that goes to the biographical core of the target of the surveillance, which triggers a need for heightened legal protections under s. 8 of the Charter.
The increased privacy intrusion represented by these new law enforcement powers can be mitigated in either of the following two ways:
(a) the extension of the current lawful access to telephony transmission data to other forms of transmission data should be accompanied by a higher threshold: from “reasonable grounds to suspect” to “reasonable grounds to believe”; or
(b) the definition of “transmission data” should be refined to strictly limit the scope of what is included so that it much more closely tracks telephony transmission data.
Notice to the affected individuals
On important element is missing from all of this … the individual whose information is being sought. I am of the view that the police or government agency seeking information about an individual should inform him or her as soon as doing so would not prejudice the lawful investigation. This should be no later than six months after the information is sought, unless a judge orders otherwise.
Immunity
The immunity provisions in the new s. 487.0195 are gravely problematic. This is a very cleverly drafted provision. We are told that this is simply “for greater certainty”, but everything we know suggests otherwise. It says you will not be liable for handing over any data that you are not prohibited by law from handing over, and if you do so you are civilly immune.
Only the criminal law creates real legal prohibitions. Handing over data might not be a criminal offense, but it may create civil liability. This civil liability is there for a reason. I may not be legally prohibited from accidentally - emphasis on “accidentally” -- hitting your car with mine, but I certainly should be liable to pay for the harm that I cause. This is an incentive for me to pay attention when I am driving. Likewise, service providers should have to think about all the interests involved before handing over data, willy-nilly. This provision should be removed. It cannot be fixed and will only encourage over-reaching by law enforcement.
This is not simply providing needed clarity, but taking rights away from citizens.
While we don’t have Bill S-4, the Digital Privacy Act, in front of us, I am concerned that we are weakening Canadians’ privacy under the guise of protecting it. While this immunity provision tells service providers, “it’s OK, hand it over”, the new provisions in S-4 underscore that and seem to allow any business to hand over customer information to police, government and other businesses without any due process and without any notice to the affected individual. This is a very regressive step
Over the past number of months, Halifax Chronicle Herald reporter Selena Ross has been researching the failure of the authorities to lay any charges in the Rehtaeh Parsons case (until political pressure resulted in the case being reopened). This past week, she published her findings into the police investigation and the crown's refusal to lay charges. The fact that it has taken months to get this level of information speaks volumes. They also make depressing reading.
The tragedies of Rehtaeh Parsons and Amanda Todd galvanized attention on the issue and lawmakers have swung into action by passing laws to address it. First, we saw the Cyber-safety Act in Nova Scotia and more recently the federal Conservative government introduced Bill C-13, Protecting Canadians from Online Crime Act. The Nova Scotia statute creates a CyberScan unit, headed by a former cop, to investigate cyberbullying, allows for anti-cyberbullying orders and allows victims (with their parents permission) to sue cyberbullies. The proposed federal legislation makes it a crime to distribute intimate images without consent.
When these laws were introduced, there was much self-congratulatory back slapping about how we are finally doing something, with the clear implication that these laws would have saved the lives of Rehtaeh Parsons and Amanda Todd, if only they’d been in effect earlier. That is simply not true.
Rehtaeh Parsons and Amanda Todd died because the police and the prosecutors did not use the laws that existed to seriously investigate the crimes that they were already the victims of. Making up new crimes may be a useful endeavour, but saying that it was the absence of laws like these that was responsible for these horrendous tragedies is an outright lie.
Amanda Todd was the victim of extortion, harassment, and child pornography at the hands of an adult online and her peers. All of these were crimes the day she was born and continued to be crimes the day that she died. The Royal Canadian Mounted Police failed to investigate, failed to prosecute and failed to give her hope for justice. The British Columbia agencies charged with protecting children in the province failed her as well.
Rehtaeh Parsons was the victim of sexual assault, harassment, child pornography and voyeurism offences at the hands of her peers. All of these (other than the voyeurism offence) were crimes the day she was born and and all were crimes the day that she died. The Royal Canadian Mounted Police and the Halifax Regional Police Service failed to adequately investigate, failed to prosecute and failed to give her hope for justice.
Instead of stepping up and taking responsibility for the horrendous failure of those who are charged with protecting children, investigating and prosecuting crimes, police agencies and the politicians to whom they report have shrewdly deflected the attention of the media and the public towards new initiatives under the clear implication that it was the absence of these laws that failed these two young women.
While both laws (with their flaws) fill an important legal void as far as cyberbullying is concerned, the principal benefit to be derived from these laws is likely that it gives authorities fewer excuses to do nothing when children are the victims of such crimes.
Whoa. According to the Globe & Mail, the outgoing Privacy Commissioner of Canada has come out supporting the lawful access provisions of the government's new so-called cyberbullying bill (Bill C-13) (See: Privacy watchdog backs cyberbullying bill’s ‘lawful access’ powers - The Globe and Mail.)
From the Globe:
Ms. Stoddart – who steps down Monday after a high-profile 10-year term – was a vocal critic of the 2012 bill. She said the latest version appears to be an improvement and she doesn’t fault the government for linking lawful access and cyberbullying.“I think it stands to reason that in order to literally police the Internet, you do need these powers. And if you want to be effective against cyberbullying, I would understand you do need extraordinary powers, so it doesn’t seem to me inappropriate,” she said. “That’s my take on it at the moment, but as we learn more, perhaps there are things in there that you don’t need.”
I am very surprised and, frankly, disappointed.
The bill creates a number of new production orders, by which the police can require a third party to hand over any kind of information, including location tracking data. And all the production orders require that the police convince a justice of the peace that you are a suspect of having violated any Canadian federal law (such as the Copyright Act) without any obligation to substantiate that you likely committed a crime. Current search warrants require "reasonable grounds to believe", not the incredibly low "reasonable suspicion" standard.
These production orders can apply to your text messages, your e-mail messages, your internet history, your banking information and any other information that a third party may know about you.
For more on this, see my post on the new cyberbullying bill.
Update (2013-11-28) - The statements attributed to the Commissioner have been significantly tempered by a posting on the OPC's website:
Statement from the Privacy Commissioner of Canada regarding Bill C-13 - November 28, 2013
OTTAWA, November 28, 2013 – Privacy Commissioner of Canada Jennifer Stoddart today issued the following statement in response to requests for her Office’s preliminary comments on Bill C-13, An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act:
My Office is currently reviewing the Bill thoroughly and, in particular, we are examining legal controls over any new investigative powers. We will make our full comments to Parliament in due course, with the goal of contributing constructively to the eventual study of this Bill in keeping with our role as an Agent of Parliament.
We commend the government for recognizing the gravity of privacy intrusions online, and for proposing action to address the issue of cyberbullying.
We recognize that law enforcement authorities need up-to-date tools to fight online crime at a time of when technologies are changing rapidly, but this must be done in a way that respects Canadians’ fundamental right to privacy.
As for our preliminary observations on Bill C-13, we note that many troubling aspects of the former Bill C-30 have not been repeated, for example, warrantless access to personal information. However, we have questions about the following issues:
- new investigative powers, (including preservation orders) proposed by the Bill and the thresholds for their use;
- the potentially large number of “public officers” who would be able to use these significant new powers; and
- a lack of accountability and reporting mechanisms to shed light on the use of new investigative powers.
My Office was not consulted on the Bill and the first time we saw a copy was Wednesday, November 20th, when the legislation was tabled. Justice Canada officials met with officials from our Office this summer, at which time we discussed specific recommendations made in a report by Federal-Provincial and Territorial officials on cyberbullying.
We look forward to sharing more comprehensive comments on the Bill with Parliament.
Update (2013-12-03) - The Commissioner has responded to the Globe & Mail's report in a letter to the editor:
Dec. 3: Safety derailed – and other letters to the editor - The Globe and MailPrivacy but …
Re Privacy Online (letters, Dec. 2): We welcome the fact that government is taking action against cyberbullying; we are also pleased to see that the government has not repeated some of the more privacy-intrusive aspects of previous lawful access legislation – in particular, access to personal information without a warrant.
However, after a preliminary review of the legislation, we have a number of questions, specifically with respect to proposed new investigative powers and thresholds for their use, as well as the potentially large number of “public officers” who would be able to use these significant new powers. We also note there is a lack of accountability and reporting mechanisms to shed light on the use of new investigative powers.
The Office of the Privacy Commissioner will make its full comments to Parliament in due course, with the goal of contributing constructively to the eventual study of this bill.
Jennifer Stoddart, Privacy Commissioner of Canada
As promised, and perhaps not surprisingly, I have some things to say about the new Bill C-13, called the "Protecting Canadians from Online Crime Act". It was introduced as Canada's cyberbullying law, but it's more than that. The summary of the bill only refers to the portions of the legislation that deal with cyberbullying, but the government has buried a number of other provisions in the statute that seem to have little, if nothing, to do with cyberbullying.
A word of caution: I've only just gotten my hands on the Bill and my comments are necessarily quick off the mark and without a whole lot of opportunity for reflection. My opinions may change as I digest this or hear responses to this. And, of course, this does not reflect the opinions of my firm, its clients, my friends, my cat or anyone else. If I make a mistake, please let me know and I will be glad to correct it.
First of all, the actual cyberbullying parts, which start at Clause 3 of the Bill:
The heart of it is the creation of a new crime of the non-consensual distribution of intimate images.
162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty
(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) of an offence punishable on summary conviction.
Definition of “intimate image”
(2) In this section, “intimate image” means a visual recording of a person made by any means including a photographic, film or video recording,
(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;
(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and
(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.
Defence
(3) No person shall be convicted of an offence under this section if the conduct that forms the subject-matter of the charge serves the public good and does not extend beyond what serves the public good.
Question of fact and law, motives
(4) For the purposes of subsection (3),
(a) it is a question of law whether the conduct serves the public good and whether there is evidence that the conduct alleged goes beyond what serves the public good, but it is a question of fact whether the conduct does or does not extend beyond what serves the public good; and
(b) the motives of an accused are irrelevant.
This is a very difficult provision to get right and an easy provision to get wrong. It is a good thing, in my view, that in order to be found guilty, the accused has to have known that the person depicted did not give consent. But the standard is then lowered to being reckless about whether or not the person gave their consent. This is problematic, in my view.
Imagine a scenario where a woman (let's call her Anne and also assume she's an adult) takes an intimate image of herself and sends it to her boyfriend, Bob. By doing that she has at least consented to having that image sent to him. Anne sent it to Bob, afterall, but there is not explicit communication of the consent involved. Bob is an idiot and a braggart, so he then sends the image to his friend Carl. Did Bob not have Anne's consent to do that? Probably, but the police would have to prove that he knew that he did not have her consent or that he was reckless about a lack of consent. This would have to be proven beyond a reasonable doubt. But now Carl has it and is two steps removed from Anne and has little knowledge about the circumstances under which Bob got the image. It's harder to convict him of knowledge of lack of consent and probably about his recklessness. Imagine that Bob and Anne broke up. As I said, Bob is an idiot, so he posts it on a website, where it is viewed by Dan and Ed. Both Dan and Ed like the photo, so they re-post it and tweet it all over the internet. Dan and Ed have no idea who Anne or Bob are and have no knowledge of this history. They also don't know that Bob took the photo and posted it on the internet to hurt Anne. Are Dan and Ed criminals in this situation? Are they reckless if they don't inquire into it? Can they, since they don't know who Anne is or how to contact her? In this scenario, I would think that Bob is and Carl may be criminals, but Dan and Ed are too far removed to know whether there was consent and the law can't assume any sort of knowledge about lack of consent. It has to be proven. I would not want the law to assume a lack of consent unless the distributor had confirmed it.
I also wonder what is meant by "publishes". Criminal liability should not attach to an intermediary who has no knowledge of the background and the law should not place an obligation on that intermediary to somehow establish the provenance of the photo or image.
The new Section 162.2 allows a court to prohibit someone convicted under the previous section from using the internet for any indeterminate period of time set by the court.
162.2 (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection 162.1(1), the court that sentences or discharges the offender, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.
Duration of prohibition
(2) The prohibition may be for any period that the court considers appropriate, including any period to which the offender is sentenced to imprisonment.
Court may vary order
(3) A court that makes an order of prohibition or, if the court is for any reason unable to act, another court of equivalent jurisdiction in the same province may, on application of the offender or the prosecutor, require the offender to appear before it at any time and, after hearing the parties, that court may vary the conditions prescribed in the order if, in the opinion of the court, the variation is desirable because of changed circumstances after the conditions were prescribed.
I can see the logic behind this, but I often find myself wondering whether the people who draft these laws and the people who enforce them are detached from living in the modern world. Refusing access to the internet is not the same as prohibiting ownership of a firearm. It is virtually impossible for a young person to live any sort of normal life without access to the internet. I know of few jobs these days, other than flipping burgers, that doesn't involve using the internet in one way or another. It's pretty hard to even get a cell phone that doesn't have access to the internet. (Even the old Nokia 252 sitting in the bottom of my junk drawer can access the internet.) I am concerned that such a measure may be imposed too regularly without enough consideration of what sort of impact this may have on the ability of someone to reintegrate into society.
Next up are a number of amendments to existing sections of the Criminal Code which allow for the seizure of obscenity, child pornography and "crime comics" (yes, you read that right), to which "intimate images" are added.
After that, Clause 6 provides for the forfeiture of property related to the offence.
Clause 7 adds the distribution of intimate images to the category of offences that are applicable for certain warrants. some other sub-clauses look like housekeeping, though I'll take a closer look later.
Clause 8 deals with authorizations to intercept certain private communications with the consent of a party to the communication. It adds a new subsection (5) to Section 184.2 of the Criminal Code:
(5) A judge who gives an authorization under this section may, at the same time, issue a warrant or make an order under any of sections 487, 487.01, 487.014 to 487.018, 487.02, 492.1 and 492.2 if the judge is of the opinion that the requested warrant or order is related to the execution of the authorization.
Likewise, clause 9 adds a similar subsection to section 186 of the Criminal Code:
(8) A judge who gives an authorization under this section may, at the same time, issue a warrant or make an order under any of sections 487, 487.01, 487.014 to 487.018, 487.02, 492.1 and 492.2 if the judge is of the opinion that the requested warrant or order is related to the execution of the authorization.
Clause 10 deals with keeping the affidavit to obtain a warrant secret. This appears, at first glance, to be housekeeping. Clause 11 also looks like a housekeeping amendment.
Oddly out of place, Clause 12 seems to expand the categories of identifiable groups for the advocating genocide crime under Section 318 of the Criminal Code:
(4) In this section, “identifiable group” means any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, or mental or physical disability.
Clauses 13 amends the provisions of the Code dealing with hate propaganda.
Clauses 14-17 amend the existing sections in the Criminal Code addressing computer crime, none of which have anything to do specifically with cyberbullying. Clause 15 augments the offence of possession of a device to obtain use of telecommunication facility or telecommunication service while Clause 17 amends the offence of Possession of device to obtain unauthorized use of computer system or to commit mischief.
Clause 18, on the other hand, actually has to do with cyberbullying. It amends the existing provisions of the Code related to harassing communications and extends them to include all modes of telecommunications:
Message in false name
371. Everyone who, with intent to defraud, causes a message to be sent as if it were sent under the authority of another person, knowing that it is not sent under that authority and with intent that it should be acted on as if it were, is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.
False information
372. (1) 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.
Indecent communications
(2) Everyone commits an offence who, with intent to alarm or annoy a person, makes an indecent communication to that person or to any other person by a means of telecommunication.
Harassing communications
(3) 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.
Punishment
(4) Everyone who commits an offence under this section is
(a) guilty of an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) guilty of an offence punishable on summary conviction.
Clause 20 adds new categories of production orders to the Criminal Code, including orders related to transmission data and tracing data, along with giving law enforcement the ability to demand that anyone preserve computer data for 21 or 90 days, depending upon the nature of the offence. They are all somewhat problematic, since all that is required is a "reasonable suspicion", not "reasonable and probable grounds to believe" or another higher threshold. The drafters appear to think that the sort of information that would be produced is not sensitive and should not be afforded a high level of protection.
Preservation demand
487.012 (1) A peace officer or public officer may make a demand to a person in Form 5.001 requiring them to preserve computer data that is in their possession or control when the demand is made.
Conditions for making demand
(2) The peace officer or public officer may make the demand only if they have reasonable grounds to suspect that
(a) an offence has been or will be committed under this or any other Act of Parliament or has been committed under a law of a foreign state;
(b) in the case of an offence committed under a law of a foreign state, an investigation is being conducted by a person or authority with responsibility in that state for the investigation of such offences; and
(c) the computer data is in the person’s possession or control and will assist in the investigation of the offence.
Limitation
(3) A demand may not be made to a person who is under investigation for the offence referred to in paragraph (2)(a).
Expiry and revocation of demand
(4) A peace officer or public officer may revoke the demand by notice given to the person at any time. Unless the demand is revoked earlier, the demand expires
(a) in the case of an offence that has been or will be committed under this or any other Act of Parliament, 21 days after the day on which it is made; and
(b) in the case of an offence committed under a law of a foreign state, 90 days after the day on which it is made.
Conditions in demand
(5) The peace officer or public officer who makes the demand may impose any conditions in the demand that they consider appropriate — including conditions prohibiting the disclosure of its existence or some or all of its contents — and may revoke a condition at any time by notice given to the person.
No further demand
(6) A peace officer or public officer may not make another demand requiring the person to preserve the same computer data in connection with the investigation.
I don't have any particular concerns with this new provision, other than subsection (5), which seems to give the peace officer unfettered discretion to place conditions on the demand, including a gag order. If a gag order is contemplated, it should be clearly set out in the Code, the criteria to justify it should be clearly set out as well and it should be subject to judicial review. Providing the police with such discretion only means it will be exercised in the vast majority of cases.
The following sections allow a police officer to seek a judge's order that data be preserved in similar circumstances.
Next up is a new Section 487.014 of the Code, which provides for a "general production order".
General production order
487.014 (1) Subject to sections 487.015 to 487.018, on ex parte application made by a peace officer or public officer, a justice or judge may order a person to produce a document that is a copy of a document that is in their possession or control when they receive the order, or to prepare and produce a document containing data that is in their possession or control at that time.
Conditions for making order
(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004 that there are reasonable grounds to believe that
(a) an offence has been or will be committed under this or any other Act of Parliament; and
(b) the document or data is in the person’s possession or control and will afford evidence respecting the commission of the offence.
Form
(3) The order is to be in Form 5.005.
Limitation
(4) A person who is under investigation for the offence referred to in subsection (2) may not be made subject to an order.
Subsequent sections add on production orders for tracing communications (new s. 487.015), to obtain transmission data (new s. 148.016), to obtain tracking (location) data (new s. 487.017) and to obtain financial data from a financial institution (new s. 487.018).
The Bill introduces new production orders that do require judicial authorization, but the threshold for obtaining them are very low. As with the preservation demand, all that is required are “reasonable grounds to suspect” that an offence has been committed, rather than the more onerous “reasonable and probably grounds to believe”. The specific production orders fall under the categories of “general production order” related to any document, tracing data, tracking data, non-content transmission information and financial information. For example the tracking data provisions read:
“tracking data” means data that relates to the location of a transaction, individual or thing.
Production order — tracking data
487.017 (1) On ex parte application made by a peace officer or public officer, a justice or judge may order a person to prepare and produce a document containing tracking data that is in their possession or control when they receive the order.
Conditions for making order
(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004 that there are reasonable grounds to suspect that
(a) an offence has been or will be committed under this or any other Act of Parliament; and
(b) the tracking data is in the person’s possession or control and will assist in the investigation of the offence.
Form
(3) The order is to be in Form 5.007.
Limitation
(4) A person who is under investigation for the offence referred to in subsection (2) may not be made subject to an order.
The Bill also provides immunity to third parties who voluntarily provide information to the police:
For greater certainty
487.0195 (1) 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.
No civil or criminal liability
(2) A person who preserves data or provides a document in those circumstances does not incur any criminal or civil liability for doing so.
It does however seem unusual that a service provider would need the immunity in subsection (2) if the “is not prohibited by law from disclosing” is satisfied from subsection (1).
Provisions in the Competition Act related to telemarketing are amended by Clauses 28-35, while the Mutual Legal Assistance in Criminal Matters Act is amended by Clauses 36 – 45 to extend these new investigative powers to incoming requests from foreign authorities. Also amended is the Canada Evidence Act so that a spouse is a competent and compellable witness for the prosecution with respect to the new offence of non-consensual distribution of intimate images.
This afternoon, the Canadian Justice Minister and the Minister of Public Safety and Emergency Preparedness announced a new bill designed to counter specific aspects of online cyberbullying. The bill does not create any new crime of cyberbullying (as existing laws can deal with harassment, extortion and the like), but it does create an offence related to the non-consensual distribution of intimate images online.
While I haven't had the opportunity to scrutinize the bill in great detail (update: now posted online here), it does create an to prohibit the non-consensual distribution of intimate images – punishable by a maximum penalty of five years’ imprisonment on indictment or six months’ imprisonment on summary conviction. An intimate image is one that depicts a person engaged in explicit sexual activity or that depicts a sexual organ, anal region or breast. Further, the image would be one for which, at the time of the recording, the person depicted had a reasonable expectation of privacy and, at the time of the offence, had not relinquished his or her privacy interest. How this will be construed by the courts will be something to watch closely.
The Bill also would permit the Court to order the removal of an intimate image that is posted online. This may ultimately be problematic as many of the online services that host such content would be based outside of Canada and likely beyond the effective jurisdiction of Canadian court orders. It may be more effective for any order to be directed that the person who posted it in the first place, who likely retains the ability to have it removed.
The law also augments existing investigation powers of the police -- all of which the Government has taken great pains to emphasise involve judicial oversight -- including preservation demands.
More analysis to follow. In the meantime, here is the media release and backgrounder prepared by the Department of Justice:
GOVERNMENT INTRODUCES LEGISLATION TO CRACK DOWN ON CYBERBULLYING
OTTAWA, November 20, 2013 – The Honourable Peter MacKay, P.C., Q.C., M.P.
for Central Nova, Minister of Justice and Attorney General of Canada, today introduced legislation to address criminal behaviour associated with cyberbullying. This legislation demonstrates the Government’s firm commitment to ensuring that Canadians are better protected against online exploitation. Minister MacKay was joined by the Honourable Steven Blaney, Minister of Public Safety and Emergency Preparedness.
“Our Government is committed to ensuring that our children are safe from online predators and from online exploitation. We have an obligation to help put an end to harmful online harassment and exploitation.
Cyberbullying goes far beyond schoolyard bullying and, in some cases, can cross the line into criminal activity,” said Minister Mackay. “With the click of a computer mouse, a person can be victimized before the entire world. As we have seen far too often, such conduct can destroy lives. It clearly demands a stronger criminal justice response, and we intend to provide one.”
The legislation being introduced today 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.
The proposed investigative powers to identify and remedy this and other cybercrimes would be subject to appropriate judicial oversight.
The Government worked closely with the provinces and territories in developing the report and recommendations on which this legislation is closely based.
“With this legislation, we are confirming that this type of behaviour is absolutely unacceptable and has serious consequences,” added Minister Blaney. “As part of Bullying Awareness Week, we are committed to reminding victims that they are not alone, and encouraging them to reach out to a teacher, a trusted adult, a parent or a friend. Bullying – whether online or off – is a problem that affects us all, and we all have a role to play in stopping it.”
Working with partners in the public and private sectors, the Government of Canada is taking action to address all forms of bullying through education, awareness and prevention activities.
For example, the Government is also supporting the development of a number of school-based projects to prevent bullying, as part of $10 million in funding that was committed in 2012 towards new crime prevention projects.
Other important projects that the Government supports to address cyberbullying include the Cybertip.ca and NeedHelpNow.ca websites operated by the Canadian Centre for Child Protection. Canadians can use these websites to report online sexual exploitation of children and to seek help for exploitation resulting from the sharing of sexual images.
In addition, through the Government’s GetCyberSafe campaign, Canadians can get the information they need to protect themselves and their families against online threats, including cyberbullying.
For more information on Bullying Awareness Week, please visit the website www.bullyingawarenessweek.org.
Backgrounder
Cyberbullying and the Non-Consensual distribution of Intimate Images
Bullying and Cyberbullying
Bullying, including cyberbullying, is a form of aggression, usually among children and youth but not always. When the bullying behaviour occurs via electronic means, it is often referred to as cyberbullying.
Bullying, including cyberbullying, can take many forms. Some forms, such as name-calling, teasing, belittling and social exclusion, are familiar and may be hurtful but are not criminal offences. However, bullying and cyberbullying conduct can escalate to more serious activities that are criminal offences under the Criminal Code, including criminal harassment (section 264); uttering threats (section 264.1); intimidation (subsection 423(1)); mischief in relation to data (subsection 430(1.1)); unauthorized use of computer (section 342.1); identity fraud (section 403); extortion (section 346); false messages, indecent or harassing telephone calls (section 372); counselling suicide (section 241); incitement of hatred (section 319); child pornography (section 163.1); and defamatory libel (sections 298-301).
More recently, a new form of cyberbullying has emerged that is not covered by the criminal law. It involves the distribution of intimate (sexual) images without the consent of the person depicted in the image.
Sometimes the motivation is to take revenge on a former partner (sometimes colloquially referred to as “revenge porn”). Young people are increasingly exchanging intimate images consensually, which is a problem in itself, but one that is exacerbated if those images later become fodder for humiliating cyberbullying attacks involving non-consensual distribution or so-called “sexploitation.”
Impact of Cyberbullying
Bullies have been around throughout history, but the widespread use of new communications technologies increases the potential impact of bullying behaviour. Bullies can now expand their audience from the schoolyard to around the globe. Once the bullying conduct is in cyberspace, it may be permanently available over the Internet, where it can spread quickly and often uncontrollably. This may compound feelings of fear, humiliation, and social isolation and have other negative effects on victims. There have been several reported cases of teen suicide where cyberbullying is alleged to have played a part.
Finding Solutions
At their October 2012 meeting, Federal-Provincial-Territorial Ministers responsible for Justice and Public Safety directed senior officials to identify potential gaps in the Criminal Code on cyberbullying and the non-consensual distribution of intimate images. The results of that review were published in a report in July 2013. The report concluded that a multi-pronged approach was needed to address cyberbullying. In addition to education, public awareness, and family and community support, the report recommended that the Criminal Code be amended to address certain gaps in the law and give law enforcement officers better tools to deal with the issue.
Bullying is also being addressed through non-legislative means, including education, awareness and prevention activities.
This reflects the fact that bullying is a social problem that needs comprehensive responses from schools, non-government organizations, the police, and community groups.
Proposed Criminal Code amendments
The federal Minister of Justice has introduced legislation to amend the Criminal Code to:
- Create a new offence to prohibit the non-consensual distribution of intimate images – punishable by a maximum penalty of five years’ imprisonment on indictment or six months’ imprisonment on summary conviction;
- Direct the sentencing judge to consider whether or not a person convicted of the new offence should be subject to a prohibition order that would restrict his or her use of the Internet for a specified period;
- Authorize a judge to order the removal of an intimate image from websites if the person depicted did not consent to having the image posted;
- Allow a judge to order restitution following a conviction to enable the victim to recoup expenses involved in having the images removed from the Internet or social media;
- Empower the court to seize and order the forfeiture of property related to the offence, such as computers and mobile devices;
- Specify that a justice may issue a recognizance order (peace bond) where there are reasonable grounds to believe an individual will commit the new offence; and
- Ensure that the spouse of an accused person is eligible to testify against the accused in court.
For purposes of the Criminal Code, “intimate image” would be defined as an image that depicts a person engaged in explicit sexual activity or that depicts a sexual organ, anal region or breast. Further, the image would be one for which, at the time of the recording, the person depicted had a reasonable expectation of privacy and, at the time of the offence, had not relinquished his or her privacy interest.
The proposed amendments to the Criminal Code would also modernize existing investigative powers (warrants and other judicial orders) to enable police – subject to prior judicial oversight –to obtain electronic evidence from the Internet and other new technologies more efficiently and effectively. More specifically, the proposed amendments would:
- Provide for preservation of volatile computer data;
- Require judicial authority to acquire preserved computer data, and require the deletion of such data when it is no longer needed;
- Update production orders and warrants to make them more responsive and appropriate for today’s advanced telecommunications environment;
- Give the police better tools to track and trace telecommunications to determine their origin or destination; and
- Streamline the process for obtaining multiple warrants and orders that are related to the execution of a wiretap authorization.
To safeguard privacy, none of the updates of investigative powers would allow access to data or subscriber information without prior judicial oversight.
The CBC is reporting that the federal government plans to introduce its anti-cyberbullying bill in Parliament tomorrow.
The bill is expected to focus on the non-consensual distribution of intimate images, but keep a close eye out for an attempt to bring in new lawful access powers, as well.
Here's the CBC report: Cyberbullying legislation to be announced Wednesday - Nova Scotia - CBC News.
For my comments on the discussion paper that likely prompted this legislation: Throne speech calls for "new tools for law enforcement" against cyberbullying.
Update (2013-11-20) - Some details are beginning to emerge about the bill, which PostMedia is suggesting will be called the "Protecting Canadians from Online Crime Act" (echoes of Bill C-30's "Protecting Children From Online Predators Act", maybe?)
From PostMedia News:
Federal government to table bill aimed at combating cyberbullying | canada.com
The federal government is poised to table new legislation Wednesday, aimed at modernizing the Criminal Code and combating cyberbullying, Postmedia News has learned.
The bill, dubbed the Protecting Canadians from Online Crime Act, will, among other things, amend the Criminal Code and the Evidence Act.
While details of the bill have not been released, a key recommendation contained in a July report by federal, provincial and territorial justice and public safety ministers recommended making it a new Criminal Code offence to knowingly distribute sexually explicit photos of a person without their consent. It recommended the offence be punishable by as many as five years in prison.
Justice Minister Peter MacKay said at the time he would seriously consider the chief recommendation.
The report also called for new provisions that would allow judges to order intimate images removed from the Internet and the forfeiture of cellphones, computers and other equipment used in the commission of an offence.
It’s unlikely Wednesday’s bill will create new laws to specifically address bullying and cyberbullying as the report ultimately concluded “existing” Criminal Code offences like criminal harassment, uttering threats, intimidation, unauthorized use of a computer, extortion, defamatory libel and child pornography “generally cover most serious bullying behaviour.” ...
Today's throne speech had some interesting things to say (but short on details) about the government's priorities. Among them is a commitment to introduce cyberbullying legislation, likely along the lines called for in the Federal/Provincial/Territorial report on cyberbullying.
From the speech:
Our Government will focus on protecting the most vulnerable of all victims, our children. Recent tragic deaths, including those of Amanda Todd, Rehtaeh Parsons, and Todd Loik, have shocked Canadians. Our Government will introduce legislation giving police and prosecutors new tools to effectively address cyberbullying that involves criminal invasion of privacy, intimidation and personal abuse. This legislation would create a new criminal offence prohibiting the non-consensual distribution of intimate images.
I have some serious concerns about the proposals put forward in the report of the Federal-Provincial-Territorial task force on Cyberbullying and the Non-Consensual Distribution of Intimate Images. I blogged about it here and have summed up my concerns in the following letter to the Department of Justice lawyer who is heading up this initiative:
Thank you very much for providing me with the opportunity to respond to the CCSO Cybercrime Working Group Report on Cyberbullying and the Non-consensual Distribution of Intimate Images (the “Report”).To provide some context, I am a lawyer whose practice focuses on internet and privacy law. I have represented adult and child victims of online cyberbullying and harassment, including the non-consensual distribution of intimate images. I also regularly represent online service providers. I am a part-time member of the faculty of law of Dalhousie University, where I teach Law & Policy for E-commerce and Internet & Media Law. I am a former president of the Canadian IT Law Association and former chair of the Canadian Bar Association’s National Privacy and Access Law Section.
All of that being said, I must be clear that the following submission is solely my own and should not be attributed to any of the organizations referred to above, or to any of my clients.
My first general comment is that the Government should proceed cautiously and with all due deliberation. Cyberbullying evokes strong emotional reactions for a range of reasons, which may lead to hasty or ill-advised recommendations. Because cyberbullying--however repugnant--is “expressive”, it triggers section 2(b) of the Charter. Any regulation or prohibition must be done in a manner that is consistent with the Charter. If it is overbroad, it will be struck down leaving victims without any effective remedy.
With respect to Recommendation 4 in the Report, which addresses investigative powers, the working group has failed to make any compelling case for the need for new investigative powers other than preservation demands. Bill C-30 was fundamentally flawed and there are no circumstances that justify giving law enforcement the ability to obtain “subscriber information” without judicial authorization.
The current production order system in the Criminal Code, with some small tweaks, is up to the task of providing law enforcement with the ability to obtain all the information that is necessary to investigate anonymous or pseudonymous cyberbullying. The tweaks that would be advisable would be to clarify that a production order is applicable in all Canadian jurisdictions without need for endorsement.
In addition, the circumstances under which a production order may be obtained can be broadened by amending Section 487.012(3) of the Code (additions are shown in bold print):
(3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to believe that(a) an offence against this Act or any other Act of Parliament has been, is being or is about to be committed or is suspected to have been, is being or is about to be committed;
(b) the documents or data will afford evidence respecting the commission of the offence; and
(c) the person who is subject to the order has possession or control of the documents or data.
With respect to Recommendation 5, a new criminal offence of non-consensual distribution of intimate images, I urge a cautious approach. The Government needs to be very careful about what behaviours are intended to be criminalized while ensuring that other behaviours are not inadvertently made unlawful. This will be a difficult task.
As mentioned above, the distribution of any images -- including intimate images -- is constitutionally protected expression that can only be curtailed in a manner that is justifiable under Section 1 of the Charter. The distribution of intimate images without consent should not, in and of itself, be criminalized. A person e-mailing another person a photo from the Victoria’s Secret catalog or even a nude photo that is found on the internet should not be an offence. In such cases, the onus should not rest on the accused to show that there was consent for the dissemination of the image. This behaviour does not rise to the level of criminality that calls for a penal sanction.
Instead, the offence should focus on (i) the malicious purposes of the dissemination and (ii) knowledge of lack of consent or reckless disregard regarding the lack of consent. In the cyberbullying context, intimate images are usually disseminated or distributed for revenge or harassment purposes. The intent is to hurt the person depicted in them and this should be an essential element of the offence.
In addition, there is no need to restrict the application of the offence to the online context. While the mischief being addressed is cyberbullying, victims can be similarly harmed by offline dissemination of intimate images. However, it should be an aggravating factor is the person disseminates the image in a manner that makes it available to the broader public.
With the foregoing in mind, I suggest the following as an offence:
(1) Every one who, with the intent to cause significant emotional distress or humiliation, or to expose the person to hatred, contempt or ridicule, publishes, distributes or communicates to a third party an intimate image of that person without the consent of that person or with reckless disregard of the lack of consent from that person is guilty of(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or(b) an offence punishable on summary conviction.
(2) In subsection (1), an “intimate image” means a photographic, film or video recording made by any means of a person who is nude, or of a person’s genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and includes such an image created by the person depicted in the image, but does not include a drawing, painting or other similar illustration.
(3) If a person is convicted of an offence under this section, the court that imposes the sentence shall consider as an aggravating factor if the person caused the intimate image to be available to a wide audience.
Thank you again for being provided with an opportunity to share my opinions on this very important topic. I would be pleased to speak with you in greater details if it would be helpful to this initiative.
Only time will tell what the legislation will finally look like, but I urge caution and careful deliberation to make sure it does the job it is intended to and only that.
The Federal-Provincial-Territorial task force on Cyberbullying and the Non-Consensual Distribution of Intimate Images has today released its report.
There have been some fears that this would be an opportunity to revive "lawful access" and some of the issues are touched upon in recommendation 4:
Recommendation 4The Working Group recommends that the investigative powers contained in the Criminal Code be modernized. Specifically, the Working Group recommends that an approach consistent with recent proposed amendments on this subject to better facilitate the investigation of criminal activity, including activity that is conducted via telecommunication be introduced and implemented as part of any legislative package responding to cyberbullying. These amendments should include, among others:
- Data preservation demands and orders;
- New production orders to trace a specified communication;
- New warrants and production orders for transmission data;
- Improving judicial oversight while enhancing efficiencies in relation to authorizations, warrants and orders;
- Other amendments to existing offences and investigative powers that will assist in the investigation of cyberbullying and other crimes that implicate electronic evidence.
The report also calls for the creation of a new criminal offence related to the non-consensual distribution of intimate images and the discussion on the topic is refreshingly nuanced.
The report itself is here and here's the release:
Canada News Centre - Minister MacKay Welcomes Joint Federal–Provincial–Territorial Report on Cyberbullying and the Non-Consensual Distribution of Intimate ImagesOTTAWA, July 19, 2013 – The Honourable Peter MacKay, P.C., Q.C., M.P. for Central Nova, Minister of Justice and Attorney General of Canada, issued the following statement today:
“Following the tragic suicide of Rehtaeh Parsons in April, the federal, provincial and territorial governments agreed unanimously to expedite a review of our laws surrounding cyberbullying.
“Today I am pleased to announce that I have received the report by federal, provincial and territorial officials on cyberbullying and the non-consensual distribution of intimate images.
“The report recommends creating a new law against non-consensual distribution of intimate images and enhancing current criminal law responses to bullying, including cyberbullying.
“In addition, the report recommends modernizing – subject to appropriate judicial oversight – investigative powers in the Criminal Code to facilitate the investigation of criminal activity involving electronic communications.
“The report also recommends that all levels of government continue to build on initiatives to address the issue of cyberbullying in a comprehensive manner, including prevention, education, and awareness-raising activities.
“For my part, I will consider the report and its recommendations, which will help guide the way forward to ensuring our children are safe from online exploitation.
“The Government of Canada has taken significant steps toward cracking down on violent crimes, preventing victimization, and addressing the harmful behaviours associated with bullying and cyberbullying.
“For example, under the National Crime Prevention Strategy, in the fall of 2012, the Government of Canada committed up to $10 million toward new crime prevention projects, including the prevention of school-based bullying, focused on children and youth.
“GetCyberSafe, the Government of Canada’s public awareness campaign on online safety, has information about cyberbullying that includes how to talk to youth about it and how to respond to this type of incident.
“And NeedHelpNow.ca is a new resource designed to help youth who have made the mistake of sending sexual images of themselves to peers, which can lead to cyberbullying. The site offers youth tips on removing content, strategies for addressing peers and moving forward, as well as information on possible related Criminal Code violations.
“I sincerely thank federal, provincial and territorial officials for having collaborated on this vital report. I look forward to working together with the provinces and territories as we make improvements to our justice system to prevent such tragic circumstances from happening again.”
An online version of the report can be found at http://www.justice.gc.ca/eng/rp-pr/other-autre/cndii-cdncii/index.html
