Monday, June 2, 2014
WE'RE WATCHING YOUCyberbullying legislation threatens free expression By Paula Todd ELAINA is a 14-year-old Toronto student who thought her life was over after her “enemy,” Lisa, also 14, snapped pictures of her naked body in the gym change room and sent the photos to guys in their class. “I was so embarrassed I couldn’t bear to go to school,” Elaina says in a telephone conversation. “I’ve always been shy, and now everyone is calling me a slut.” Sadly, Elaina’s case is not rare. Electronic devices give us the unprecedented power to communicate and educate—along with the ability to humiliate and harm each other, not to mention harass, sexually extort and blackmail, as has been alleged in the cases of Amanda Todd and Rehtaeh Parsons. But, in riding to the rescue, Canada’s federal government is once again camouflaging a power grab beneath a needed social protection. Bill C-13 would make it a crime to use intimate images without consent of the person pictured: 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. In addition, though, Bill C-13 would permit anyone to voluntarily give massive amounts of personal material to police and government without risking any civil or criminal punishment. This means that Internet service providers (ISPs), telecommunications companies, and website and social media operators—who have access to everything you’ve said, searched or done online—are free to collect, store and hand over your personal data without risk. In other words, spying, recording, stockpiling and sharing your personal information becomes the norm. Equally unsettling, the proposed law would make it legal for anyone—child, youth or adult, including “enemies” and cyberbullies, or cyberabusers—to provide your personal data to the government without you knowing about it or being able to protest. How? Under Bill C-13, briefly known as the “Protecting Canadians from Online Crime Act,” but formally and more transparently titled “An Act to amend the Criminal Code, the Canadian Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act,” the government proposes to:
- ■ Make it legally impossible for you to take criminal or civil action against any “person,” including an Internet service provider (ISP) or a telecom company, who voluntarily preserves and turns over personal information to law enforcement. In other words, all that you write, speak, text, video-record and more online can be stockpiled, perused and held against you without any judge first deciding whether that’s fair.
- ■ Even when police do ask a judge for a “demand or preservation” order requiring someone to stockpile and give them your material, they only have to show that they have “reasonable grounds to suspect”—not the tougher standard of “reasonable grounds to believe”—“that an offense has been or will be committed.” That’s a low hurdle to jump, especially since sexual images are routinely posted on a vast number of websites, including those that forbid sexual content. If you see them, share them or “like” them, without knowing whether consent was involved, are you liable to be monitored by authorities?
- ■ Anyone who is ordered to collect and preserve data but refuses to could face a maximum fine of $250,000 or imprisonment for up to six months, or both.
- ■ The federal government also wants the power to see all of your “transmission data” (metadata), such as the origin, destination, date, time, duration, type and quantity of your phone calls and online communications, as well as “tracking data,” which pinpoints the location of a person or object. This “information about information” doesn’t include content, so authorities are at risk of reaching false, misleading and damaging—not to mention convenient—conclusions about whom you know and associate with, for how long and where you go. This heightens concern, too, about social media sites that routinely record your “checkin” information, along with the location tracking used by popular mobile apps. Under Bill C-13, authorities could see data about your past movements without a warrant, but they would need one for ongoing “live” tracking and for remotely turning on your cellphone's GPS.
Paula Todd is a journalism and digital media professor and a lawyer. She sits on the CJFE Board and chairs its Digital Issues Committee. Her latest book, Extreme Mean: Trolls, Bullies and Predators Online (Penguin/Random House) looks at the causes of cyberabuse. About the cartoons: Cinders McLeod is a writer, a political cartoonist and an illustrator. Visit cindersmcleod.com for info about her art, blog and children’s books, I’m a Girl! and I’m a Boy! (HarperCollins). She is working on a novel.