Cyberbullying bill a Trojan horse to revive online surveillance: critics

OTTAWA -- Civil libertarians say the federal government's new cyberbullying bill will erode Internet privacy by reviving many elements of the Tories' controversial online surveillance legislation.

Groups that oppose undue intrusion by the state are painting the cyberbullying legislation as a Trojan horse containing dozens of pages of provisions from Bill C-30 -- killed by the government earlier this year following a public outcry.

"This is not a bill about cyberbullying," said Micheal Vonn, policy director of the British Columbia Civil Liberties Association.

"It's a bill essentially to reintroduce most of the components of Bill C-30, despite the government's assurances that they would not do so."

OpenMedia.ca, a lobby group on digital policy, welcomed action on cyberbullying but expressed concern that the new legislation would make it easier for the government to spy on the activities of law-abiding Canadians.

"Legal experts are telling OpenMedia.ca that the bill consists of 2.5 pages about cyberbullying, and 65 pages of lawful access (online spying) legislation."

Justice Minister Peter MacKay denied the government was trying to sneak through new measures.

It makes sense to modernize Criminal Code sections that deal with online communication, MacKay said Thursday during a conference call. "This is about ensuring that the Criminal Code applies consistently and that police practices apply consistently when it comes to the collection of electronic evidence."

The bill makes it illegal to distribute "intimate images" without consent and easier to get such pictures removed from the Internet.

But the legislation also updates production orders and warrants to mesh with today's advanced telecommunications world. In addition, it would give police new tools to track and trace telecommunications to determine their origin or destination.

The Conservative government abandoned Bill C-30 in February amid fierce opposition.

The bill would have allowed police, intelligence and competition bureau officers access to Internet subscriber information -- including name, address, telephone number, email address and Internet Protocol (IP) address -- without a warrant.

Currently, release of such data held by Internet service providers is voluntary.

Opponents of C-30 said allowing authorities access to Internet subscriber information without a court-approved warrant would be a worrisome infringement of privacy because even that limited data can be revealing.

The government insists none of the updated investigative powers in the cyberbullying bill would allow access to data or subscriber information without prior judicial approval.

However, Vonn points out the bill would allow police to seek judicial authority to seize metadata -- the kind of digital information that can reveal much about a person's web-browsing history -- on a low threshold of "reasonable suspicion" an offence has occurred, as opposed to reason to believe one has taken place.

"We know this is incredibly valuable information to the police. Is it appropriate that they should have more of it on a lower standard?" she asked.

"If we're going to have a discussion about how the Criminal Code needs to be in keeping with current technology, then we should do that in its own bill where it will receive appropriate debate and where the requisite expertise can be applied. This is not that bill."

Another provision buried in the bill would substantially expand Canadian hate speech law "in ways that no one has thus far even debated publicly," Vonn said.

The cyberbullying legislation also encourages Internet service providers to voluntarily disclose information about customers without a court order by making them immune from criminal or civil liability for such releases, said Michael Geist, a law professor at the University of Ottawa and Canada research chair in Internet and e-commerce law.

The provision is "enormously problematic" as it opens the door to co-operation on widespread surveillance, Geist said in a blog post about the bill.

Police have been asking for such provisions for many years and there could be a good debate on the merits of many of the proposed reforms, Geist said.

"Yet the government is signalling that it would prefer to avoid such debates, wrapping up the provisions in the cyberbullying flag and backtracking on a commitment made earlier this year to not bring forward Criminal Code amendments that were contained in Bill C-30."

MacKay said Thursday the government is mindful of concerns about the personal information of Canadians, noting the government consulted with federal privacy commissioner Jennifer Stoddart.

Scott Hutchinson, a spokesman for Stoddart, confirmed that Justice Canada officials met with officials from the commissioner's office last summer to discuss recommendations in a federal-provincial-territorial report on cyberbullying.

However, he added, Stoddart's office saw the cyberbullying bill for the first time Wednesday and is now reviewing it "very carefully from a privacy standpoint."