Bill C-13: Cyber Bullying - A wolf in Sheep's Clothing

This week Justice Minister Peter MacKay introduced 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.  

Bill C-13 is the Conservative's much touted cyber bullying legislation.  The party's much publicized message is that this legislation is a necessary tool to address the recent and serious problem of online harassment.

The aspect of the legislation that the government discusses the most is the creation of the new offence of knowingly publishing or disseminating an intimate image of a person without that person's consent.

In this respect this modernization of the Criminal Code is desperately needed.  

There will be strong and justifiable political and public will to modernize the Criminal Code to address the important issue of internet harassment and abuse.

This is precisely what the Conservatives are counting on because Bill C-13 is a wolf in sheep's clothing.  

Only a small percentage of Bill C-13 deals with cyber bullying.  The majority of the bill is devoted to expanding police powers relating to the search and seizure of personal internet data.

The search and seizure provisions in Bill C-13 are of serious concern.  These concerns have been excellently addressed by Professor Michael Geist - his work should be a starting point for any consideration of the privacy threats that arise from Bill C-13.

These privacy concerns call for a vigorous and intellectually honest debate about appropriate government policy.  

Unfortunately, recent experience has shown that the Conservatives will likely demonize those critical of this aspect of the bill in an attempt to stifle legitimate debate.

C-13: Search Provisions and Lawful Access

Any evaluation of the search powers (otherwise known as ‘lawful access’) contained in Bill C-13 should be informed by its predecessor, Bill C-30 - An Act to enact the Investigating and Preventing Criminal Electronic Communications Act and to amend the Criminal Code and other Acts.

Bill C-30 was the subject of intense public scrutiny following former Minister of Public Safety Vic Toews’ comments that opponents to the legislation can “either stand with us or with the child pornographers”.

The main criticism of Bill-30 was the expansion of warrantless police search powers relating to online subscriber information.  This type of information is commonly known as ‘metadata’.  This data is comprised of personal and revealing information such as: a subscriber's name, address, phone number, email address, internet protocol address and device identification numbers.   

Metadata allows police to build a detailed profile of a person by using their digital footprint and would facilitate the tracking of a person’s digital history and movement.

This is exactly the same type data that Bill C-13 would allow police to search and seize.

Many experts have commented on the serious privacy implications surrounding the collection and disclosure of metadata.

Following intense public criticism of Bill C-30 Justice Minister Rob Nicholson announced that the government would not be proceeding with Bill C-30.  He stated:

We will not be proceeding with Bill C-30 and any attempts that we will continue to have to modernize the Criminal Code will not contain the measures contained in C-30, including the warrantless mandatory disclosure of basic subscriber information or the requirement for telecommunications service providers to build intercept capability within their systems.

We've listened to the concerns of Canadians who have been very clear on this and responding to that.

It did not take long for Conservatives to back away from this promise.

Bill C-13 seeks to re-introduce many of the controversial measure that were contained in Bill-30.  This is particularly troubling given the the search and seizure measures in C-13 do not directly relate to the stated purpose of the bill - protecting children for online cyber bullying.  

It must be asked why the government is attempting to resurrect the failed provisions of Bill C-30 through a bill designed to stop online bullying.

Reasonable Suspicion: Insufficient Judicial Oversight

The most controversial aspects of bill C-30 (warrantless searches) are not present in Bill C-13.  However, the limited protections incorporated into Bill C-13 are nonetheless insufficient and will attract constitutional scrutiny.

Bill C-13 merely requires that police have reasonable suspicion to allow them to search for and seize a wide variety of internet data.  Given the nature of that data and the corresponding privacy implications a standard of 'suspicion' is simple too low a threshold.  

A search of this type should only be authorized if the police can demonstrate the higher standard of reasonable and probable grounds.  

The Supreme Court has recently considered the standard of reasonable suspicion in the case of R. v. Chehil, 2013 SCC 49.  

The Supreme Court made it clear that the standard of reasonable suspicion falls well below the normal requirement of reasonable and probable grounds.  The Supreme Court has held that reasonable suspicions is only acceptable where the privacy interest in the subject matter of the search is not high.

In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, the Court laid out the underlying principles of the s. 8 framework, which balances privacy interests and the public interest in providing law enforcement with the means to investigate crime.  First, s. 8 does not protect against all encroachments on an individual’s privacy interests.  Its primary goal is to protect individuals from arbitrary state action by balancing their interest in being left alone, against the public interest in providing the state with the means to investigate crime (pp. 159-60).  This balance must be struck on objective grounds (pp. 166-67), and, where possible, should be assessed before the search occurs (p. 160).  In most cases, “[t]he state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion” (p. 167).

Both the impact on privacy interests and the importance of the law enforcement objective play a role in determining the level of justification required for the state to intrude upon the privacy interest in question.  In Hunter, this Court also recognized that this balancing of interests can justify searches on a lower standard where privacy interests are reduced, or where state objectives of public importance are predominant (p. 168). [...].             

In the case of sniff searches, the use of the reasonable suspicion standard reflects, in part, the minimal intrusion of a dog sniff.  

The data contemplated in the C-13 searches can disclose detailed and personal information, thus any search of this data cannot be said to be minimally intrusive.

The Supreme Court of Canada has recently addressed the issue of electronic privacy in the case of R. v. Vu.  In finding an increased privacy level in electronic data (including metadata) the court made the following points:  

 

Computers store immense amounts of information, some of which, in the case of personal computers, will touch the “biographical core of personal information” referred to by this Court in R. v. Plant, [1993] 3 S.C.R. 281, at p. 293.  The scale and variety of this material makes comparison with traditional storage receptacles unrealistic.

The Ontario Court of Appeal was surely right to find that there is a significant distinction between the search of a computer and the search of a briefcase found in the same location.  As the court put it, a computer “can be a repository for an almost unlimited universe of information”: R. v. Mohamad (2004), 69 O.R. (3d) 481, at para. 43.

[...]

As the appellant and the intervener the Criminal Lawyers’ Association point out, computers contain information that is automatically generated, often unbeknownst to the user.  A computer is, as Gold put it, a “fastidious record keeper”: para. 6. Word-processing programs will often automatically generate temporary files that permit analysts to reconstruct the development of a file and access information about who created and worked on it.  Similarly, most browsers used to surf the Internet are programmed to automatically retain information about the websites the user has visited in recent weeks and the search terms that were employed to access those websites. Ordinarily, this information can help a user retrace his or her cybernetic steps. In the context of a criminal investigation, however, it can also enable investigators to access intimate details about a user’s interests, habits, and identity, drawing on a record that the user created unwittingly: O. S. Kerr, “Searches and Seizures in a Digital World” (2005), 119 Harv. L. Rev. 531, at pp. 542-43. This kind of information has no analogue in the physical world in which other types of receptacles are found.

The Supreme Court’s comments about the heightened privacy interest inherent in internet data and metadata is incompatible with the lower standard of  reasonable suspicion contained in Bill C-13.   

Given the Supreme Court’s recent findings and the heightened privacy interests in the internet data, there is simply no principled reason for the new C-13 warrant provisions not to be based on the traditional and judicially approved standard of reasonable and probable grounds.

It seems that the Conservatives have tried to slip a wolf into the hen house.  In this case the wolf is not dressed in sheep's clothing but robed in the justifiable public sympathy for victims of online harassment.

One can’t be faulted for wondering if the government will resort to the refrain of ‘you are either with us or with the cyberbullies’.