New cyberbullying law has 'larger agenda,' expands police powers

When Justice Minister Peter MacKay unveiled the federal government's proposed cyberbullying law on Wednesday, he touted it as a necessary tool to combat the often hurtful spread of intimate images. To emphasize the underlying point, he made the announcement during national Bullying Awareness Week.

But legal experts were left wondering why a piece of legislation that is meant to rein in online tormentors is also taking on terror suspects and people who steal cable TV signals.

"There is a much larger agenda at play here," says Rob Currie, director of the Law and Technology Institute at Dalhousie University.

Under the banner of anti-cyberbullying measures, the government is "trying to push through a number of things that have to do with law enforcement but nothing to do with cyberbullying."

Among other things, these new measures include giving police easier access to the metadata that internet service providers and phone companies keep on every call and email.

MacKay has acknowledged that law enforcement did not have the tools to prevent the deaths of Canadian teens such as Rehtaeh Parsons and Amanda Todd, who endured years of torment online. C-13 would give police a greater ability to investigate incidents of cyberbullying by giving courts the right to seize computers, phones and other devices used in an alleged offence.

5 years in prison

Under the proposed legislation, anyone who posts or transmits an "intimate image" of another individual without that person’s consent could face up to five years in prison.

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MacKay said C-13, also known as the Protecting Canadians from Online Crime Act, reflected the government’s commitment "to ensuring that our children are safe from online predators and from online exploitation."

Since introducing the bill, MacKay has said that C-13 is also meant to update the Criminal Code to reflect modern communications such as email and social media.

Toronto internet lawyer Gil Zvulony says that it is a necessary step, given that some aspects of the Criminal Code pertaining to communications still refer to outmoded technologies such as telegrams.

"I don’t know what the [government’s] motivation is, but there is a logical theme to all of this, in the sense that it’s trying to modernize [the code] for the digital age," he says. 

Currie, however, raises concerns about the breadth of C-13, which not only addresses cyberbullying, but also gives police heightened powers of surveillance to track terror suspects as well as individuals who use computer programs to gain unpaid access to WiFi or cable TV service.

Currie likens the omnibus nature of C-13 to Bill C-30, also known as the Protecting Children from Internet Predators Act, which was introduced in February 2012 by then-public safety minister Vic Toews.

"It was supposed to be all about [fighting] child porn, but it had all kinds of other stuff in it," Currie says.

The 'other stuff'

That other "stuff" included lawful access provisions, which would force internet service providers to hand over customer information to police without a warrant. This led to a public outcry and the government’s abandonment of the bill.

Although C-30 was ostensibly killed in 2012, Michael Geist, a cyber-law expert at the University of Ottawa, says that the government has been inconsistent about its position on some of the key issues surrounding lawful access to private communications.

Earlier this year, then justice minister Rob Nicholson pledged that the government "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."

Still, Andrea Slane, a law professor at the University of Ontario Institute of Technology, says C-13 is in many ways "identical" to its failed predecessor — though one of the key differences is that C-13 emphasizes judicial oversight.

For the most part, the new bill still observes "the checks and balances around what judges are meant to do to make sure warrants are issued" where they are supposed to be.

That said, one thing the new bill does is allow ISPs to voluntarily give customer information to police without civil or criminal liability, Slane points out.  

"That’s the one that’s most sticky for me," she says, because it was this kind of legislation that led to widespread surveillance in the U.S.

Geist says C-13 gives police greater access to metadata, which is the information that ISPs and phone companies keep on every call and email, and he adds that in some ways metadata can be more revealing than the substance of a phone call or email.

Metadata will enable police to pinpoint a suspect’s "geographic location. It will tell who they were talking to, it will tell what device they were using," Geist told CBC.

Currie says that, within C-13, there are proposed amendments to other acts, including the Mutual Legal Assistance in Criminal Matters Act, which allows Canadian police to gather evidence on individuals in Canada because a foreign state has requested it.

Jennifer Stoddart, Canada’s privacy commissioner, has not had a chance to examine the bill. But her office released a statement to CBC saying C-13 "appears to be a complex bill, and we will be examining all of its privacy implications and preparing to provide our full analysis and recommendations before the parliamentary committee that will be studying the legislation."

Currie acknowledges that the bill strengthens many of the law enforcement tools needed to stem cyberbullying. But he takes issue with the sheer size of the legislation.

"This government has a history of introducing large omnibus bills that have all kinds of stuff in them – unrelated things all under the banner of one legislation," he says.

"The problem with that is it inhibits democratic debate. There are lots of evidence-gathering tools here that we need to have a debate about."

With files from Alison Crawford