Friday, May 02, 2014

Canada's Cyberbullying/Sexting Protection Legislation - C-13 and its Voluntary Disclosure Provision

Canada was the first nation in the world to adopt a law targeting cyberstalking and cyberharassment. Now, 20 years or so later, it is the first country in the world to address hostile sexting and revenge porn. I applaude the leadership of Canada and Minister MacKay in their forward thinking.

But, not all about C-13 is designed to address cyberbullying/hostile-sexting/revenge porn. In a broad stroke many security and law enforcement empowering provisions were added, some (IMHO) far beyond what is needed to accomplish its purposes. Spousal immunity is challenged in C-13. And C-13 attempts to provide immunity for industry members voluntarily turning over personal information to governmental agencies.

While I may have privacy concerns over this provision in a vacuum where Canada is the sole country with digital networks and providers, my concerns are more for the industry itself in the real world. Canada, although the most digitally socially engaged country in the world does not exist in a vacuum. The Twitter, Googles, Microsofts, Facebooks, Yahoos, Minecrafts, Ubisofts and Blizzards of the world exist globally. Most are headquartered in the US with some having offices or subdivisions in Canada.

These companies create contracts with their users. Those contracts include privacy policies, terms of service and use and limited licenses of use of software and resources. When we blindly click "I accept" we are signing that contract. By offering you the ability to accept, the company has offered and signed their end.

If the company fails to live up to its end of the contract it can be sued in the civil courts, may face regulatory enforcement actions by privacy or consumer protection agencies and may even be charged with a crime. Since the privacy practices are contractual, the government of Canada has no legal authority to provide immunity to a network provider for breaching that contract. The user would still have a right of action in the US or other countries around the world. And, the network could still face liability for that "voluntary" breach by regulatory authorities in the US and elsewhere.

In the rare case when Canadian-providers only do business with Canadians within Canada and are exempt from international legal authority, C-13's immunity for voluntary disclosures may work. And there Canadians are losing substantial civil rights when legal process can be ignored and investigators can request information be provided "voluntarily." What company would want to be seen as standing in the way of child recovery, terrorism curtailment or threats against the innocent? But, this assumes that law enforcement doesn't have a legal option that protects the privacy and security of Canadians and visitors to Canada. It assumes it is all or nothing. And that is an inherently faulty assumption.

If the subpoena power were streamlined to protect the privacy of Canadians, their civil rights and the ability of law enforcement to protect all of us, we don't have to choose between our privacy and community safety. We don't have to trade one right for another.

Thinking outside of the box is harder, but worth the work. I don't want cyberbullying victims, or hostile sexting victims or any victims to have to give up their privacy rights as a Canadian to be protected from digital hate and harassment. It's not fair. It's not right. It's not Canadian.