Current Justice Minister Peter MacKay in 2009. Image: Wikimedia Commons
The Canadian Conservatives have now had the misfortune of getting called out repeatedly in parliamentary committee, as Members of Parliament heard from witnesses on Bill C-13, a piece of legislation that has earned the dubious honour of being criticized by the Boys and Girls Club of Canada.
The cyberbullying legislation—which criminalizes so-called “revenge porn,” but is widely recognized as an omnibus bill—has been derided by lawyers, activists, journalists, NGOs, and now, even the families and survivors of cyberbullying themselves.
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But, luckily for the Conservatives, at least the cops are on board.
The bill has proven enormously controversial, as it will allow ISPs to fork over personal data without a warrant. It will also provide any “peace” or “public officer,” from a mayor to a fisheries agent, to obtain your data, while also making it easier for police to obtain new, broad, warrants.
The Conservatives, of course, have maintained that this bill allows Canadians to have their cake and eat it too. They say that C-13 doesn’t make it easier for police to get your data. It simply “modernizes” the Criminal Code.
Justice Minister Peter MacKay, the first to come before the committee to speak on the bill, swatted away criticism: “The proposed legislation would not provide the police with any new powers for voluntary disclosure, nor does the bill propose to create a mechanism to bypass the necessary court oversight,” he said.
The key word, here, is “new.”
Police already have the power to obtain your data without a warrant, and bypass the necessary court oversight; C-13 just makes it a whole lot easier. Namely, it enshrines civil and criminal liability to anyone who gives your data up to police—making them immune from lawsuits, and ultimately removing incentive for companies not to comply.
But MacKay was backed up by a gaggle of police officers that came before committee to endorse the entirety of the bill: “We fully support this,” Jim Chu, Vancouver Chief of Police, told the committee.
The police officers there—Chu, his Haligonian counterpart, as well as representatives from the Ontario Provincial Police and the RCMP—noted that they frequently deal with cyberbullying, and that slapping child porn charges on high school students is rarely the best way to go about policing it. This is exactly how two of the alleged tormenters in the Rehtaeh Parsons case were charged last year.
The law enforcement defenders of C-13 also noted that most requests police make will still go through judicial oversight, and that the legislation actually makes it harder for police to obtain tracking warrants. But it was the lawful access provisions that police were particularly applauding, noting that the Criminal Code is quite out-of-date, and that going through a court to get a production order or warrant, as Chu noted, can be “cumbersome.”
Chu decried “misconceptions”that have been trotted out in the media about what the bill does. Namely, he cited one report detailing how C-13 could give Rob Ford the power to get ahold of your personal information (written by yours truly) as “unnecessarily alarming Canadians.”
While the police are more than happy to assume C-13’s new powers, the civilians before the committee were less-than thrilled: “Young people deserve to be protected from cyberbullying, but they also deserve to be protected and respected for their privacy,” said Fahd Alhattab, a representative of the Boys and Girls Club of Canada, who were otherwise supportive of the bill.
Carol Todd, Amanda Todd’s mother, told the committee that she’s not comfortable with many of the provisions in the bill: “We should not have to sacrifice our privacy for our children’s safety,” she said, frequently getting emotional when recounting what led to her daughter’s suicide. ”I don’t want anyone hurt in my daughter’s name.”
Glen Canning, Rehtaeh Parsons’s father, flanked Todd, but was more supportive of the bill’s more controversial points. Also present was Allan Hubley, the father of Jamie Hubley—a gay teenager from Ottawa who tragically took his own life at 15.
Canning maintained that cops are professionals, and that privacy concerns are the least of his worries: “It seems so out of place to complain about privacy while our children openly terrorize each other to death,” he said.
Critics of the bill did underline that, in criminalizing revenge porn—phrased as the “non consensual sharing of intimate images”—to be guilty, you only need to be “reckless” in failing to obtain consent in sharing the image or video. Lawyers have taken that to mean if someone downloads and shares a piece of amateur porn from the internet, they may have broken the law. Officers testifying committee told Parliament not to worry; the courts won’t read it that way.
Even so, a Halifax lawyer with McInnes Cooper named David Fraser took a blowtorch to the bill when he appeared before committee. He raised the concern about amateur porn downloading in front of the committee, noting that given the huge amount of porn on the internet, it’s pretty hard to know which videos were filmed with the person’s consent, and which weren’t. Should users have to do their due-diligence before they watch porn?
Fraser says the bill should focus on criminalizing “the guilty mind: somebody who knew, somebody who was in fact betraying a trust. That in my mind reaches a level of criminal culpability. Somebody who has no idea, and no reason to know? You don’t criminalize that sort of conduct.”
Numerous witnesses and opposition MPs put forward the novel idea of splitting the bill—getting the ‘revenge porn’bits on the books, and considering the lawful access sections separately.
The Tories, however, weren’t budging.
Fraser also took specific issue with making it easier for police to obtain a production order for “transmission data”—a vague new concept introduced in C-13 that is, in effect, metadata.
The Conservatives promised that transmission data would not include anything relating to the content of what Canadians are doing online. Fraser disagreed. He told the committee that it included everything from a user’s IP address, details on what computers and browsers are being used, the URL of the website, and ultimately, some level of content from what users are browsing.
Then he moved on to immunity—the complete legal protection for any company that voluntarily forks over Canadians’personal information to police, even without a warrant: “This provision, I believe, should be removed. It can’t be fixed, and will only encourage overreaching by law enforcement,” Fraser said.
Chu says that police have the onus to always take the least intrusive route to an investigation. He, however, incorrectly believed that companies would not have immunity if the requesting officer was acting in bad faith, like if a cop called up Bell to request his ex-wife’s call logs. The language in the bill is clear though: if a peace or public officer requests the information, and the company is legally allowed to disclose it, the company “does not incur any criminal or civil liability for doing so.”
The Tories admitted that, yes, companies can volunteer our personal data without a warrant, but, they maintained, those companies already have that ability. C-13, they argued, just codifies and clarifies it in the law.
However, re-wording the provision will make it a whole lot easier.
Bob Dechert, Parliamentary Secretary to the Minister of Justice, tried to poke holes in Fraser’s logic: “I’m more of an analog than a digital kind of guy,” he began by noting. He drew an analogy: requesting a user’s personal information from a telecommunication company is roughly the same as taking down the license plate number of someone breaking into your neighbour’s house and calling the cops, right? No, Fraser said, that’s not at all the same as requesting millions’of Canadians data from private companies, without any paper trail or oversight.
C-13’s predecessor, C-30—the so-called ‘cybersnooping’ bill—met its fate behind the woodshed after widespread public outcry. Then Public Safety Minister Vic Toews, subject of the #TellVicEverything campaign (which was created in response to Vic’s apparent hard-on for surveillance), was lambasted for introducing alarming measures which would have given police Patriot Act-style powers.
MacKay has been careful to avoid the same mistakes, and has benefitted from the fact that much of the focus on the bill is centred on the cyberbullying aspects. However, with opposition mounting, the Tories have signaled that they may be open to amending the bill.
