The currently proposed legislation is a more palatable but still troubling restatement of the unpopular Bill C-30 — the Protecting Children from Internet Predators Act. That bill, tabled in February 2012, mentioned neither children nor predators and was likely so-named only to sway the public toward accepting the legislation. It attempted to do precious little of what its title purported, mostly dealing with giving the police new powers — including making it mandatory for Internet service providers to disclose subscriber information to police without court oversight.
Vic Toews, then minister of justice, famously rebuked critics saying, “either stand with us or with the child pornographers.”
The public saw through the rhetoric and the outcry was immediate. Organizations opposing undue state intrusion on individual liberties recognized this as an unwarranted expansion of police powers to snoop on Canadians.
The outcry was merited. After all, the best way to evaluate legislation is to examine how it can be abused, not what the government says its goals are. In the end, Bill C-30’s flaws were too great and it never reached a second reading in the House of Commons.
With Bill C-13, the government is at it again.
Debate around Bill C-13 has cast it as dealing with cyberbullying — especially relevant after the tragic stories of Amanda Todd and Rehtaeh Parsons. The cyberbullying label is less disingenuous than the previous legislation’s title — Bill C-13 does make it illegal to distribute intimate images without consent. But just like Bill C-30, it deals with far more. Of the 60 plus pages in Bill C-13, the majority grant new powers to police and do not deal with cyberbullying.
Peter MacKay, the current justice minister, justifies this as a modernization of the Criminal Code. In a news release, the Department of Justice says Bill C-13, “would ensure that the same type of information that is currently available to law enforcement agencies for telephone calls would be available to police for newer technology such as computers, smart phones and the Internet.”
In fairness, there are some important differences between Bill C-13 and the failed Bill C-30, and many of the most egregious opportunities for undue state intrusion have been removed. For example, gone is Bill C-30’s requirement that telecommunications service providers have real-time data intercept capacity. And the mandatory disclosure of subscriber information to police without court oversight appears to be gone, too.
But appearances can be deceiving.
Buried within Bill C-13 is a clever mollifying of Bill C-30’s mandatory disclosure provision. The legislation clarifies that the police may request the voluntary disclosure and preservation of data or documents, and that someone in possession of that information can choose to comply with the police request, provided that it is not otherwise illegal to do so.
This alone seems innocuous. But the very next provision says that anyone who voluntarily provides such information to police upon request is absolved of all criminal and civil liability for the disclosure.
This absolution is problematic because it undermines the incentive to await court oversight before disclosing information to the police. Without the fear of incurring liability, Internet service providers possessing information wanted by the police may be more likely to comply with baseless disclosure requests. Fishing expeditions and snooping may become more common. Further, it’s not unreasonable to question whether a so-called voluntary disclosure can ever be completely without coercion, especially when you risk losing the goodwill of police.
Even though protecting Canadians from the harms of cyberbullying may be a laudable goal, we must ask how these new police powers in Bill C-13 could be abused. The mandatory disclosure provision from Bill C-30 may be gone, but Bill C-13 contains a subtle means of accomplishing much the same. And we should not be too quick to give up our right to privacy, because once we do, it will be difficult to get back.
This piece was first published by the Toronto Star on March 26, 2014.