It’s almost a trope that politicians don’t really “get” the internet but no where has that been more clear than in Parliament’s Justice and Human Right Committee.
For the past several weeks the committee has been holding hearings into Bill C-13, a law the government says is intended to “modernize” police powers and to criminalize online bullying and so-called “revenge porn.”
While some elements of the bill have drawn support, particularly those aimed at cracking down on the transmission of intimate images without the consent of the person in the images, the plan to “modernize” police powers has drawn criticism from across the political spectrum and from privacy advocates, lawyers and even the families of victims of acts the law would criminalize.
At issue are provisions that would make it easier for police to access data, including documents from individuals and tracking data from an ISP or wireless provider, if they have a “reasonable suspicion” that an offence has been committed or will be committed.
That’s a lower threshold to obtain a warrant than the current rules for a physical search warrant, which requires “reasonable and probable grounds to believe” that an offence has been committed.
But if the bill becomes law, police might not even need to ask the courts for those permissions - they can go right to the telecom companies, the law would shield third-parties, like telecom providers, from civil and criminal liability if they turn over information to the authorities voluntarily - even if the request was unreasonable or even illegal.
It would also increase the circumstances under which police could ask for information from telecoms, right now it has to be related to a specific investigation, but if the law passes, “that qualification gets blown wide open,” writes Justin Ling (who has covered this issue extensively) in the National Post. “Soon, those officers will only need to either be investigating any law, domestic or foreign, establish that ‘the information relates to national security,’ or otherwise establish the disclosure will help in the ‘administering of any law of Canada.’”
But the real problem with the law might not be the law itself. It might be that the politicians studying - and soon voting - on the bill don’t understand it.
At a committee hearing on the bill earlier this month, Bob Dechert, the Conservative Member of Parliament for Mississauga—Erindale, asked David Fraser, a Halifax-based lawyer specializing in privacy and technology, who was testifying before the committee what the difference was between police asking an ISP for user information and calling the police to report suspicious activity around a neighbour’s house or answering police questions about a possible break-in in the area.
“You're comparing apples to oranges in this scenario. They're very, very different situations,” Fraser replied. Pressed for time, he pointed out that in a hypothetical example Dechert had provided, police would have been able to obtain a warrant.
That didn’t satisfy Dechert, who had described himself as an “analog guy” earlier in the hearing.
“Time is of the essence. We all know that with the Internet, at the blink of an eye, that image could be disseminated to millions of people,” he said.
Fraser had an answer for that one. “There are judges available by telephone 24/7 in this country,” he said.