Law Times

Page 10 January 20, 2014 Law Times • FOCUS Privacy experts worried about cyber-bullying law BY MICHAEL McKIERNAN For Law Times P rivacy experts say the federal government has attempted to resurrect its lawful access program under the cover of new cyberbullying legislation. After a public outcry, Prime Minister Stephen Harper's government backed off its plan to bolster police surveillance powers when it abandoned its lawful access bill, the protecting children from Internet predators act. But in November, a number of provisions reappeared when the government introduced bill C-13, the protecting Canadians from online crime act, that aims to crack down on cyber bullying. David Fraser, a leading privacy lawyer based at McInnes Cooper LLP in Halifax, says he has concerns about the way the government introduced the new legislation. "They're waving the flag of saving children from online predators when most of the bill has nothing to do with that," he says. "It seems a bit of a political smokescreen and it does smack of trying to sneak through all this lawful access stuff. If it is defensible, then they should put it out in a bill labelled lawful access and stand up and defend it." The new bill drops the most contentious aspect of the previous lawful access legislation: warrantless access to subscriber information, something that would have forced Internet service providers and telecommunications firms to turn over data, such as addresses, phone numbers, e-mail addresses, Internet protocol information, and device identification numbers, to police on request. But bill C-13 does include a provision that offers immunity to Internet service providers that turn over information to law enforcement voluntarily on request. "That's a big problem," says Cara Zwibel, director of the fundamental freedoms program at the Canadian Civil Liberties Association. Zwibel has a few concerns about the watereddown version of the lawful access provisions in the cyber-bullying bill. "Probably the worst ones have been removed, but there are a lot of powers in the bill that we feel have very serious privacy implications that just don't seem to have been taken into account during the drafting. While these powers might apply in the context of an investigation into cyber bullying, they would also apply in all sorts of other contexts," she says. She says the CCLA also has worries about another clause concerning warrants for the production of metadata, the raw phone and technology information made famous by Edward Snowden's revelations about the U.S. National Security Agency's secret surveillance program. Metadata doesn't include the content of a particular call or message but does provide information about it, such as where and when someone placed a call. "That data has very serious privacy implications and sometimes can be even more invasive than actually disclosing the content of the communications," says Zwibel. Authorities can obtain a production order for metadata created by bill C-13 where there are "reasonable grounds to suspect" someone has committed an offence. That sets a lower bar than most other court-ordered warrants that require "reasonable and probable grounds to believe" there has been an offence. The bill sets a similar standard for warrants to obtain tracing data and financial information. "For a cop just to have a reasonable suspicion, I think, is an extremely low threshold. I find that troubling," says Fraser. The Halifax lawyer says he was particularly disappointed by the federal government's approach to the legislation because the small proportion of it that deals specifically with cyber bullying "addresses a real gap" in the Criminal Code. The bill adds a new criminal offence of knowingly publishing or distributing an "intimate image" without the consent of the subject. In the past, Fraser says clients he has represented in connection with the dissemination of intimate images by former partners have had little recourse. He says such cases put police in an awkward position because the conduct falls between the stools of child pornography and harassment. While a civil claim is an option, he says clients are often unwilling to pursue an action without the option of doing so anonymously. "I'm hopeful, as a result of this bill, police will no longer be in a position to turn a blind eye," says Fraser. However, he's not sure the criminal law is always tracking down answers to your tax questions has never been easier New editioN The lawyer's guide To income Tax and gsT/hsT, 2014 ediTion DaviD M. SherMan, B.a., LL.B, LL.M. author David M. 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In a case where an image has been widely distributed, that could mean someone further down the chain with no connection to the subject could be criminally liable. "The reality is there are quite a few images of naked people on the Internet, so I'm told. Somebody might look at a picture and send it to a buddy without any idea if it was taken for Playboy magazine or if it was taken without consent. I'm not sure we need to criminalize that person," says Fraser. Jane Bailey, an associate professor at the University of Ottawa Faculty of Law whose research focuses on the societal and cultural impact of the Internet, is also doubtful that the criminal law is the best way to tackle cyber bullying. "To the extent that the creation of a criminal offence is representative of public disapprobation of a particular act, that is something of value," she says. "But as a preventative measure, it's unlikely to have much of a significant effect. An overarching solution would look at extra criminal provisions if necessary but also what educational, training, and research initiatives can be made. Preventative measures have to be getting down to sexist and homophobic attitudes and they need to start that young. You need to inculcate respect for diversity and the sooner you're committed to that, the better chance you have in the long run." LT Big breach at HRSDC Continued from page 9 have increased. "While it would be somewhat encouraging if the upward trend in reported data breaches could indeed be attributed to more diligent reporting, this may understandably serve as cold comfort to Canadians," said Stoddart.  "Even if this were the case, Canadians would be justified in demanding that institutions focus greater efforts on taking greater precautions up front and avoiding breaches in the first place." Whatever the reason for the increased breach reporting, Timothy Banks, privacy and security practice lead at Dentons Canada LLP in Toronto, says it's still a "disturbing" total that likely underestimates the actual number of breaches. "Federal institutions, unlike private institutions, are permitted to collect large quantities of information about Canadians without consent," says Banks. "It's disconcerting that they can have that access and yet be under no obligation to report breaches to the privacy commissioner. Unless a breach is reported, it's difficult to have confidence that there has been an appropriate investigation of what occurred and what can be done to remediate the issue." The number of complaints made to Stoddart's office also saw a significant spike last year. They hit 2,273, which was more than double the previous record reached the year before at 986 complaints. The annual report noted two highly publicized breaches at HRSDC accounted for most of the increase at 1,159 complaints between them. However, even without including them, the complaints total would still surpass the previous record. Stoddart identified employeremployee breakdown at federal institutions as one factor in the increasing complaint rate as workplace grievances with union involvement boosted the numbers last year and with most multiple complainants coming from within the federal public service. More members of the public service have also complained about the sharing of their own information with third-party service providers, according to the annual report. Banks says that trend worries him. "It looks like the Privacy Act may be being used as a weapon in labour relations among federal institutions, which is discouraging. That's not the purpose of the act, and one might ask whether those types of issues might better be dealt with in the context of the Canada Labour Code and collective bargaining generally," he says. Complaints about time delays outside legislated deadlines in institutions' responses to individual access requests also helped boost the total number last year, according to the annual report. It noted they hit an "unprecedented" level at 413 complaints in 2012-13. The report also suggested such complaints were particularly pertinent. Of the 334 time-delay complaints resolved in the same period, the privacy commissioner's office declared 59 per cent of them to be wellfounded. Banks says that success rate points to possible systemic issues that require a closer look by the government. "Those would seem to be easily avoided complaints, so it may be an issue of a lack of resources or it may be an issue of having inappropriate procedures in place to allow them to respond in a timely way," he says. Banks says Stoddart's successor has big shoes to fill and notes the privacy law community will miss her influence. "She is very well respected on the international stage and will continue to be for her views," he says. "She has had a balanced view of privacy, leading the office at a critical time. In an era of innovation with respect to technology, I think those perspectives were really welcomed in a federal privacy commissioner." LT

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