In ALG Blog

The Protecting Canadians from Online Crime Act (Bill C-13) comes into effect on Monday. The government touted the bill as a fair response to cyberbullying. We’ll have to wait and see whether the law lives up to these high expectations. Until then, these are some key things people should know about the Act:

  1. It creates a new criminal offence of non-consensual distribution of intimate images.

This is part of the bill which most clearly relates to its stated purpose. The Act criminalizes knowingly publishing and otherwise distributing an “intimate image” of a person without that person’s consent. An intimate image is a photo or video of a person in the nude; exposing his or her genitals, anal region or breasts; or engaged in explicit sexual activity. This offence clearly covers “revenge porn” and the kind of cyberbulling that drew national attention in the Rehtaeh Parsons and Amanda Todd cases.

  1. It gives law enforcement broad new “lawful access” powers.

The new tools in law enforcement’s investigative toolbox include the ability to demand, without prior judicial authorization, that individuals or organizations preserve digital data, and warrants and production orders for transmission data and tracking data. The threshold for using these new tools is reasonable suspicion. This is a lower standard than regular search warrants or wiretap authorizations. Here, the police only have to reasonably suspect that an offence has been or will be committed and that transmission or tracking data will assist the investigation in order to get authorization to record and access the data.

The higher threshold for intercepting private communications implies a difference in the privacy interests in private communications and digital data. However, transmission data can reveal a great deal about an individual, including the websites they visit; search terms they use; who they call and when, from where, and how long the call lasts; and the destination, size, time, and origin of emails.

  1. It gives people and organizations immunity from civil and criminal liability for voluntarily providing law enforcement with individuals’ private digital data.

Internet law scholar Michael Geist says the protection from liability “encourages fishing expeditions because there’s really no downside to asking for voluntary information.” The constitutionality of the police forgoing search warrants in favour of just asking telcos to voluntarily hand over information is yet to be determined. The SCC in Spencer said people have a reasonable expectation of privacy in their internet subscriber information. The Charter thus guards against unreasonable seizures of this information, but it’s unclear what degree of protection the law will require.

Photo credit: “3D Scales of Justice” by Chris Potter (CC BY-SA 2.0)

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