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

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.

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Comments on “Canadian Government Rolls Out National Cyberbullying Legislation And, No Surprise, It's Problematic”

Subscribe: RSS Leave a comment
McGreed (profile) says:

Re: Re: Re:

It’s not because we don’t want something done against it, it’s just was don’t believe that what they are doing, is the correct way to do it.

Sure you can get rid of those pesty slugs on your garden that way, but firebomb napalm is just overkill and hits too much outside of what it’s targeting…like the garden.

You need to do it right, and not just kneejerk it and hit everything in range.

Anonymous Coward says:

Re: Re:

Because if you’ve never been bullied you can’t understand the emotional and psychological impact it has on a person. It’s not very easy to ignore it especially when you can’t get away from it. The school systems are no help, usually the person being bullied ends up being “the problem”, or the one time they do fight back they get suspended/expelled. What you’re saying about teach our children to ignore bullying is akin to saying that clinically depressed people just need to go outside for some fresh air and they’ll be fine.

I don’t agree with this law, I don’t agree with a lot of what Harper has done but it’s this type of attitude towards bullying – the idea that it can just be ignored is why kids are killing themselves at unprecedented rates. They feel it’s their only way out because when they try to seek help they’re told to just ignore it, or they’re being too sensitive.

John Fenderson (profile) says:

Re: Re: Re:

the idea that it can just be ignored is why kids are killing themselves at unprecedented rates

According to the CDC, kids in the US are not “killing themselves at unprecedented rates.” Suicide in the 25-64 year range is up a percentage point or so, but in all other age groups, including minors, it is at a historically low rate.

Also, amongst people who commit suicide, “bullying” is not a very common reason — but in fairness, no single external reason stands out of common. Suicide is almost always the result of mental illness, not circumstance.

John Fenderson (profile) says:

Re: Re: Re:2 Re:

I just looked at the statistics for Canada — and the trend isn’t an increase there, either. Two things cry out about Canadian teen suicide rates: first, they’re very low to begin with and second, they’ve been roughly flat for years. There is no sign of Canadian kids killing themselves at unprecedented rates.

btrussell (profile) says:

Re: Re: Re:3 Re:

The biggest change is the ability to broadcast by almost anyone. I can think of at least three different people I knew in high school who committed suicide before completing grade 12. @ 400 students. I doubt if more than a handful of people outside of our small community ever heard about any of them. Today? The whole Country along with other parts of the world hear all about it.

mary alice altorfer says:

Re: Re: Anonymous

Sure, Mary Alice Altorfer, was a “douche bag”. Imagine a grandma not responding to the racist, misogynist, homophobic rhetoric of some pallid, corpulent, weirdos who, even used a false Amber Alert for one of her children.
I may not at the time understood what a Meme was, but I sure do understand Hate and those who proselytize it under different mantras. “Pools Closed” is just a wimpy excuse to rant and expound upon everything and everyone different….meaning not pallid, corpulent, and ignorant.

Anonymous Coward says:

What am I missing?

Rataeh Parsons was gang-raped at a party. The rapists took pictures while they were doing it, and posted them to the internet. The RCMP decided that there “was insufficient evidence” to prosecute the rapists, and also that the picture (of a non-consensual sex act with a minor) was not criminal. Nobody’s been charged.

Amanda Todd was sexually exploited and blackmailed by an online predator, and the abuse was ongoing. It turns out that this had been reported to the RCMP over a year before she killed herself. The RCMP did nothing, and nobody’s been charged.

Now, I’d personally be happy to see a law that reduced the number of children who are being sexually abused and/or driven to suicide. Strangely enough, though, it’s already illegal in Canada to have photographs of minors in sexual situations. It’s also illegal to sexually extort minors, nor is it permitted to gang rape them. Yet none of these laws were ever enforced; if the victims hadn’t killed themselves, the government still wouldn’t care.

So how exactly is this new law supposed to help? I’d love to see a “stronger criminal justice response”, or for that matter any criminal justice response, but it seems like criminalizing posting photos is sort of missing the point.

crade (profile) says:

Re: Know what they call a non-national criminal law in Canada?

It’s very stupid to pass a “cyber bullying” law at all. If it needs to be illegal, it needs to be illegal in reality as well as on the internet. There will never be any case that we need more protection from bullying, or anything else for that matter because of the oogie boogie internet.

Anonymous Coward says:

I have the perfect bullying solution: Parents. Quit. Raising. Pussies.

Your kid isn’t special, quit telling them they are the center of the universe and they won’t have such a big shock when someone else doesn’t think so. Make them strong, not weak. My nephew is a big bitchy crybaby at 5, afraid of and crying at everything, he makes me sick, I’m embarrassed to be around him. My kid is nothing like that because even at 2 I don’t coddle him and make a fuss over his every little upset.

I was bullied, so what? I got ever it, it made me strong, I realized people will do to you what you allow them to do to you, and now, nobody can screw with me.

If you can’t get over something that made you mildly upset in middle school, I suggest you try growing up and facing the real world where you are “bullied” every day by society, your boss, your spouse, and your government.

And if bullying makes you kill yourself, well, suicides are weaklings society is better off without anyway.

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