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Canada’s federal government will push forward with Bill C-13, “Protecting Canadians from Online Crime Act.” On March 26, the government successfully moved to limit further debate on the proposed law before it is sent to the Standing Committee on Justice and Human Rights.

The proposed legislation has been promoted by the government as “anti-cyberbullying” legislation; however, the new offence of unlawful distribution of intimate images is a small component of a suite of provisions intended to expand law enforcement tools to investigate online crime.

Background

Bill C-13 is the latest in a series of unpopular attempts by the government to grant law enforcement enhanced surveillance powers. Perhaps the most controversial aspect of the bill is the immunity granted to organizations that preserve and disclose data to the police without being subject to any warrant, subpoena or preservation or production order.

However, unlike prior attempts, Bill C-13 did not meet with strong criticism out of the starting gate from Privacy Commissioners in Canada. Ann Cavoukian, the outgoing information and privacy commissioner of Ontario, issued a statement calling for public debate and the establishment of an independent surveillance review agency. Jennifer Stoddart, the former privacy commissioner of Canada, also issued a statement that her office was studying the bill but agreed that many of the most troubling aspects of prior bills had not been repeated.

New Investigation Tools

If enacted, Bill C-13 will create a new system of non-judicial preservation demands, a lower test for certain preservation and production orders and grant immunity to organizations that provide data without being subject to an order.

Under Bill C-13, law enforcement and other public officials can demand that an organization preserve computer data that is in its possession or control if the person making the demand has “reasonable grounds to suspect” an offence under federal Canadian law or that of a foreign state has been or will be committed. The test of “reasonable grounds to suspect” is an unusually low standard in Canadian law (although not without precedent). Failure to comply with this demand would be a criminal offence punishable by fine of CAD$5,000.

These non-judicial preservation demands would expire after 21 days (or in the case of an offence in a foreign state - 90 days) and cannot be renewed. However, law enforcement could obtain a judicial preservation order to extend the time, for which the “reasonable grounds to suspect” standard would also apply. Judicial preservation orders would expire automatically after 90 days. Failure to comply with a judicial preservation order would be punishable by a maximum fine of CAD$250,000 and/or 6 months’ imprisonment.

Bill C-13 also lowers the test for a production order. Currently, the test for a general production order requires police to demonstrate that there is “reasonable grounds to believe” that an offence has been committed. The bill introduces a new production order that would only require “reasonable grounds to suspect.” Using this lower test, police would be able to obtain transmission data (meta data) and tracking data (geolocation data) from a telecommunications service provider.

Other provisions of Bill C-13 introduce the ability to obtain tracking data from mobile phones or other wearable devices in real time. Importantly, the standard to obtain a warrant to install or activate a tracking device (reasonable grounds to believe that an offence will be or has been committed) is higher than with respect to installing tracking devices on other types of things (reasonable grounds to suspect). The maximum time for obtaining tracking data is 60 days, or one year in the case of suspected terrorists.

Law enforcement would also be able to install or activate a data recorder to obtain the transmission data (meta data) of communications over the Internet. However, unlike previous proposed legislation, this will require a warrant. The standard is the lower “reasonable grounds to suspect.” The maximum time for the collection of transmission data is 60 days, or one year in the case of suspected terrorists.

The bill also appears to resolve an issue created by Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA). Under PIPEDA, the circumstances under which an organization could voluntarily preserve and disclose data to a police officer were unclear. It is not uncommon in Canada for law enforcement authorities to exert significant efforts at moral suasion to obtain the cooperation of private sector organizations to collect and disclose data without the police obtaining a warrant or production order. Some organizations would refuse to cooperate without a warrant or production order, arguing that preserving and handing over documentation might violate PIPEDA or, at the very least, might violate terms of service.

Bill C-13 resolves this issue by providing that an organization may voluntarily—absent even a police demand—preserve and disclose data to the police without the threat of criminal or civil liability.

This provision has been singled out by commentators for criticism. There is a perception that Canadian law enforcement will use this provision to increase pressure to obtain cooperation from organizations instead of obtaining a judicially supervised production order.

New Unlawful Distribution of Intimate Images Offence

Bolted onto Bill C-13 is the creation of a new offence of knowingly publishing, distributing, transmitting, selling, making available or advertising an “intimate image” of a person knowing that the person depicted in the image did not consent to the publication, distribution, etc., or being reckless as to whether the person depicted in the image consented to that conduct. If convicted, the accused could be subject to five years in prison (or 6 months imprisonment and/or CAD$5,000 fine on a summary conviction) as well as a number of ancillary orders, such as a prohibition from using the Internet or digital network except in accordance with conditions set by the court.

In order to constitute an “intimate image,” the image must be a visual recording of a nude person, certain intimate areas of a person’s body or a person engaged in sexual activity. In addition, the circumstances at the time the image was taken must have given rise to a reasonable expectation of privacy. Finally, the person was depicted must have a continuing reasonable expectation of privacy at the time that the conduct involving the publication, distribution, etc., of the image.

If enacted, courts would be given new powers to authorize seizure of intimate images and to allow for the forfeiture of those images. The court would be able to order the custodian of a computer system to delete the images and to provide information to identify and locate the person who posted the material. Controversially, the proposed law would also make a spouse of a person charged with the offence a compellable witness, thereby abrogating the centuries-old rule that a spouse cannot be compelled to testify against his or her spouse.

Government Still Concerned about Debate

Without question, the current attempt to expand law enforcement’s toolkit is much more respectful of privacy rights than previous attempts by Canada’s Harper government. However, the recent attempt to stifle debate in the House of Commons certainly could be interpreted as the government remaining uncomfortable with scrutiny of these provisions.

Written By

Timothy M. Banks, CIPP/C

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