Canadian Government Rolls Out National Cyberbullying Legislation And, No Surprise, It's Problematic

Legal Issues

from the when-all-you-have-is-legislators... dept

The legislative attempts to curb cyberbullying continue to amass. We’ve already seen Nova Scotia’s regrettable offering — a law that includes ex parte “hearings” attended by only the accuser and a judge, and the addition of criminal and civil liability which extends to the parents of the accused. We’ve seen other similar efforts here in the US, most of which have been rushed through the process while emotions are still high. The end result is a set of bad laws that criminalizes protected speech and removes objectivity from the process.

Canada is now in the process of pushing through a national cyberbullying law, one that adds “revenge porn” to the mix.

The Honourable Peter MacKay, P.C., Q.C., M.P. for Central Nova, Minister of Justice and Attorney General of Canada, today introduced legislation to address criminal behaviour associated with cyberbullying. This legislation demonstrates the Government’s firm commitment to ensuring that Canadians are better protected against online exploitation.

“Our Government is committed to ensuring that our children are safe from online predators and from online exploitation. We have an obligation to help put an end to harmful online harassment and exploitation. Cyberbullying goes far beyond schoolyard bullying and, in some cases, can cross the line into criminal activity,” said Minister Mackay. “With the click of a computer mouse, a person can be victimized before the entire world. As we have seen far too often, such conduct can destroy lives. It clearly demands a stronger criminal justice response, and we intend to provide one.”

This legislative attempt was prompted by two high-profile suicides of bullied teens — Rataeh Parsons and Amanda Todd — both of whom also had explicit photos of them distributed online.

The bill itself (the Protecting Canadians from Online Crime Act) hasn’t been posted online yet, but many of the changes the legislation hopes to make have been detailed at the Canadian Department of Justice site. In addition, the report [embedded below] leading to this legislation is also available, which contains several recommendations for altering existing laws and crafting new ones.

Here are some of the key changes the legislation hopes to implement if passed.

• Create a new offence to prohibit the non-consensual distribution of intimate images – punishable by a maximum penalty of five years’ imprisonment on indictment or six months’ imprisonment on summary conviction;
• Direct the sentencing judge to consider whether or not a person convicted of the new offence should be subject to a prohibition order that would restrict his or her use of the Internet for a specified period;
• Authorize a judge to order the removal of an intimate image from websites if the person depicted did not consent to having the image posted;
• Allow a judge to order restitution following a conviction to enable the victim to recoup expenses involved in having the images removed from the Internet or social media;
• Empower the court to seize and order the forfeiture of property related to the offence, such as computers and mobile devices;
• Specify that a justice may issue a recognizance order (peace bond) where there are reasonable grounds to believe an individual will commit the new offence; and
• Ensure that the spouse of an accused person is eligible to testify against the accused in court.

Canada isn’t exactly the US when it comes to protected speech, so it will be interesting to see how this attempt at curbing “revenge porn” plays out. Beyond that, there are a couple of troubling additions to existing law that could result in lots of unintended consequences.

There’s plenty of potential for abuse in allowing courts to order an image to be removed. One needs to look no further than Europe to see how problematic this can be. Images that aren’t “revenge porn” but are embarrassing can be taken down with a court order, meaning that people will be able to bury unflattering photos. The fact that this is wrapped in with a cyberbullying law means this likely won’t be strictly limited to photos. “Offensive” text may also fall under the same law.

More troubling is the fact that the law seeks to allow courts to go into the asset forfeiture business. There are hundreds of examples here in the US that show just how perverted that incentive is. The War on Drugs has seen citizens lose houses, vehicles and cash to law enforcement for things as minor as finding a personal supply of marijuana. Even worse, people pulled over carrying amounts of cash that officers find “suspicious” often find their money seized under the presumption that only drug dealers carry lots of cash. No legislative body should be in any hurry to unleash this sort of easily-exploited “deterrent” on its own citizens.

The addition of granting spouses the “eligibility” to testify against each other in court is an interesting twist, presumably aimed at combating revenge porn. At this point, Canadian law still considers married partners to be “one person,” which means neither can be compelled to testify against each other. This would eliminate that “protection” (if that’s indeed what it is) and doesn’t seem to be limited solely to revenge porn cases. This would seem to open itself up for abuse as well and, if passed, Canadians may see police paying more and more attention to the spouses of suspects.

The legislation also seeks to modernize existing criminal code to be more applicable to current realities. This too has some problematic aspects.

• Provide for preservation of volatile computer data;
• Require judicial authority to acquire preserved computer data, and require the deletion of such data when it is no longer needed;
• Update production orders and warrants to make them more responsive and appropriate for today’s advanced telecommunications environment;
• Give the police better tools to track and trace telecommunications to determine their origin or destination; and
• Streamline the process for obtaining multiple warrants and orders that are related to the execution of a wiretap authorization.

It’s the last bullet point that’s the most worrying. Streamlining processes like these almost always results in an escalating disregard for civil liberties and privacy protections. This is another area where governments should tread carefully, or better yet, not at all. Modernizing isn’t simply “streamlining.” Modernizing also means carefully considering the unintended consequences of applying “streamlined” procedures to a heavily-connected public. Modernizing laws, done the wrong way, simply grants more access to law enforcement without considering the additional privacy protections that may need to be built in.

Legislators (and courts) also need to be especially wary of how the law will be interpreted by those enforcing it. Most likely, new permissions will be bent to give law enforcement the “edge” it always seems to feel it needs. Again, we don’t need to look any further than the US to see how selective “modernization” can be. If a judge said back in 1993 that it was fine for officers to open a flip phone and scroll through the address book without a warrant, law enforcement takes that to mean it can browse the contents of a modern smartphone (which is analogous to raiding someone’s computer) without a warrant in 2013.

Pre-greasing the wiretap wheels is never a good idea. We have an entire intelligence network predicated on streamlined, bulk collections that arose out of generous interpretations of existing surveillance laws.

The bullet points alone indicate this legislation has a lot more bad in it than good. In the search for applicable deterrents to fight a nebulous problem, the bill’s drafters have erred on the side of smothering speech under a heavy blanket of good intentions.

Filed Under: canada, cyberbullying