Legislating the Web: Cyber-Bullying and Online Privacy Rights

Fatimah Atcha

On October 6th, 2012, 16-year-old Amanda Todd committed suicide after almost two years of online harassment. Less than a year later, a 17-year-old Nova Scotia girl hanged herself after videos of her sexual assault were posted and circulated online. Both events became prominent news stories and sparked significant national outrage, and the federal government was implored to take a more definitive stance against cyber-bullying. Since then, it has indeed taken a stance – but with a few strings attached.

Cyber-bullying involves the harm, harassment, or threatening of victims through digital platforms such as online chat rooms, social media platforms, text messages, and email. It offers a unique opportunity for bullies to remain completely anonymous; and given the rising popularity of social media platforms such as Twitter, Snapchat, and Facebook, particularly among youth, it has become increasingly prevalent. So far, the government’s strategy for dealing with cyber threats seems to be to trade privacy for security.

In February 2012, then-Justice Minister Rob Nicholson and then-Public Safety Minister Vic Toews introduced the Protecting Children from Internet Predators Act (Bill C-30) in Parliament. But the promising — and purposeful — title of the bill could not disguise its actual content: namely, a move toward increased state surveillance. Bill C-30 granted telecom companies the right to disclose subscriber information without a warrant. A year later, due to significant public criticism and concern, it was scrapped.

In understanding the growing need to address cyber-bullying through federal legislation, heightened considerably by public outcry following the case in Nova Scotia, the government put forward a new bill in November 2013. Often referred to as the “Cyber-Bullying Bill”, the Protecting Canadians from Online Crime Act (Bill C-13) made the non-consensual distribution of intimate images an offense indictable up to five years — a necessary step towards a public intolerance of sexual and psychological cyber-abuse. However, provisions within the legislation that give Internet-service providers immunity for disclosing subscriber information are far less laudable.

The recent Supreme Court decision in R v. Spencer endorsed the constitutional rights of Canadians to privacy in their Internet activity and subscriber information. Unfortunately, Minister of Justice Peter Mackay and the reigning Conservative government have viewed this decision in much narrower terms – that is, as not applying to Bill C-13 or to Bill S-4, the Digital Privacy Act. It has continued to ignore or reframe the narrative altogether.

Repeated calls from critics both in and outside of government to split the cyber-bullying legislation have also been largely ignored. Within Parliament, MacKay has contended that splitting the bill would be “perverse”, and has reassured Members that the victims of cyber-abuse understand the government’s objectives. Yet in May, Amanda Todd’s mother, Carol Todd, appeared before the Justice Committee and expressed concern about “some of these provisions condoning the sharing of Canadians’ privacy information without proper legal process.” Perhaps what Mr. MacKay actually meant was that victims of cyber-bullying are making an attempt to understand.

Even Harper-appointed Privacy Commissioner Daniel Therrien has voiced concerns regarding the privacy issues contained within Bill C-13. Therrien has taken particular issue with the “reasonable grounds to suspect” wording, the wide definition of a public officer who may now gain investigative powers, and the voluntary immunity for those who disclose private information to officers.

The Office of the Privacy Commissioner has also pointed to the extent of information that can be gleaned from the metadata collected by Internet and telephone service providers. Daniel Weitzner, principal research scientist at MIT’s Computer Science and Artificial Intelligence Laboratory, considers metadata:

“More revealing [than content] because it’s actually much easier to analyze the patterns in a large universe of metadata and correlate them with real-world events than it is to go through a semantic analysis of all of someone’s email and all of someone’s telephone calls.”

While Therrien was able to voice his concerns to the Senate Committee deliberating the bill, his contribution marks a formality at best. Bill C-13 passed the House of Commons on October 20shortly after the Conservative government used a time allocation motion — applied in the name of efficiency and responsibility — to restrict the debate in light of the R v. Spencer decision.

There is much to say about the ideological underpinnings of Bill C-13. When a national government elects to be so heedless of the value of privacy in a free, open and democratic society, it is restricting dissidence and public criticism of its own actions. It is also slowly eroding and disregarding the rights guaranteed to all Canadians by the Charter of Rights and Freedoms. Lastly, it seems to simply equate more surveillance of all Canadians with better information to implicate some criminals.

The most unfortunate result of Bill C-13, though, is that the various strings attached to it have completely diverted attention from the policy issue at hand. The discussion was supposed to be about reducing incidents of cyber-bullying and preventing more tragedies like the death of Amanda Todd. Instead, the discussion has become about the trade-off that Canadians must make between privacy and security.

Fatimah Atcha is a 2016 Master of Public Policy Candidate at the University of Toronto’s School of Public Policy and Governance. She graduated from the University of Toronto Mississauga in 2013 with a Bachelor’s degree in Political Science and History. Fatima is especially interested in immigration and gender policy.

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