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Call for Input: CIPS Draft Response to Bill C-13 (Protecting Canadians from Online Crime Act)

The CIPS Advocacy Committee has prepared a draft CIPS position on Bill C-13.  An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act.

The draft CIPS position is include in red text below.  The content prior to position statement is meant to provide background information.

The Advocacy Committee is looking for input on the draft CIPS statement by January 24th.  The statement will be revised based on input received and submitted to the National Board for approval at their January 30th meeting.  Upon Board approval the statement will then become an official CIPS position and will be submitted to various government ministries, MPs and interested groups.

Please send any comments you have on the draft position statement to mj@cips.ca, on the CIPS LinkedIn Group Discussion, or CIPS Facebook Post by January 24th. 2014.

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Canada Bill C-13

An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act which may be cited as cited as the Protecting Canadians from Online Crime Act.

Introductory Comments:

The Protecting Canadians from Online Crime Actappears to include:

  • Publication of an intimate image without consent (162.1(1))
  • Hate propaganda (320.1(1))
  • an offence under any of sections 467.11 to 467.13; (492.1(6) a) (note: 467.11-13 pertain to criminal organizations)
  • an offence committed for the benefit of, at the direction of, or in association with a criminal organization; (492.1(6) b)or
  • a terrorism offence (492.1(6) c)

Not being a lawyer – or used to reading legislation, it would appear that other areas covered (perhaps already covered  in the other legislation) would be:  matter that is be obscene, a crime comic, child pornography, a voyeuristic recording.

There has been a lot less written on this Bill as compared to Bill C-30.

As has been noted by the former Federal Privacy Commissioner, Jennifer Stoddart, the bill goes too far in expanding police powers to probe online behaviour.

"We recognize that law enforcement authorities need up-to-date tools to fight online crime at a time of when technologies are changing rapidly," Stoddart says in the statement, "but this must be done in a way that respects Canadians' fundamental right to privacy."

As for our preliminary observations on Bill C-13, we note that many troubling aspects of the former Bill C-30 have not been repeated, for example, warrantless access to personal information.  However, we have questions about the following issues:

>      new investigative powers, (including preservation orders) proposed by the Bill and the thresholds for their use;

>      the potentially large number of “public officers” who would be able to use these significant new powers; and

>      a lack of accountability and reporting mechanisms to shed light on the use of new investigative powers.

Similarly Dr. Cavourkian, Ontario’s Privacy Commissioner, stated:  The government has deemed it necessary to proactively defend Bill C-13, as it is really just a new surveillance bill masked in sheep’s clothing. A few short pages which address cyberbullying are surrounded by numerous other surveillance-related powers. This is both disingenuous and misleading. In particular, the urging for telecommunications companies to disclose their customers’ information to the police without a warrant by giving them full immunity is truly appalling.

Under Bill C-13:

487.012(1) A peace officer or public officer may make a demand to a person in Form 5.001 requiring them to preserve computer data that is in their possession or control when the demand is made.

(2) The peace officer or public officer may make the demand only if they have reasonable grounds to suspect that

(a) an offence has been or will be committed under this or any other Act of Parliament or has been committed under a law of a foreign state;

(b) in the case of an offence committed under a law of a foreign state, an investigation is being conducted by a person or authority with responsibility in that state for the investigation of such offences; and

(c) the computer data is in the person’s possession or control and will assist in the investigation of the offence.

(3) A demand may not be made to a person who is under investigation for the offence referred to in paragraph (2)(a).

(4) A peace officer or public officer may revoke the demand by notice given to the person at any time. Unless the demand is revoked earlier, the demand expires

(a) in the case of an offence that has been or will be committed under this or any other Act of Parliament, 21 days after the day on which it is made; and

(b) in the case of an offence committed under a law of a foreign state, 90 days after the day on which it is made

(5) The peace officer or public officer who makes the demand may impose any conditions in the demand that they consider appropriate — including conditions prohibiting the disclosure of its existence or some or all of its contents — and may revoke a condition at any time by notice given to the person.

(6) A peace officer or public officer may not make another demand requiring the person to preserve the same computer data in connection with the investigation.

487.0195(1) For greater certainty, no preservation demand, preservation order or production order is necessary for a peace officer or public officer to ask a person to voluntarily preserve data that the person is not prohibited by law from preserving or to voluntarily provide a document to the officer that the person is not prohibited by law from disclosing.

(2) A person who preserves data or provides a document in those circumstances does not incur any criminal or civil liability for doing so.

 

Points made by Dylan Luban, in Global Research, December 10, 2013:  Canadian Conservatives’ Cyber-Bullying Bill – A Pretext for Expanding Police Surveillance include:

Bill C-13 expands police powers in two distinct ways.

First, it introduces a lower threshold for the issuing of warrants authorizing the police to force telecommunications companies and Internet Service Providers (ISPs) to hand over personal information and data or force them to be retained for future police perusal.

Law enforcement agencies will only have to vow to the courts that they have a “reasonable suspicion” someone is complicit in a crime or intent on committing one to obtain a warrant. Traditionally, police have been held to a much more demanding standard than mere “suspicion”—the standard of “reasonable and probable grounds.”

In lowering the threshold for police searches of Internet use, the Conservative government is flouting a recent Supreme Court decision that argued that to empower the police to conduct searches on the basis of “suspicion” would imperil citizens’ privacy rights: “In most cases, the state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion.”

Second and even more sinisterly, Bill C-13 will allow police and other law enforcement agencies to request telecom companies and ISPs to voluntarily disclose Canadians’ online information and communications. And to do so even outside the scope of a criminal investigation. The Canadian Criminal Code currently forbids such requests.

Moreover, Bill C-13 will provide companies that fulfill such voluntary police requests with full immunity from criminal or civil penalties for complying. In other words, they are to be granted protection for participating in police fishing expeditions and spying.

From The Privacy Threats in Bill C-13, Part One: Immunity for Personal Info Disclosures Without a Warrant (Michael Geist)

The Criminal Code currently states the following on the ability for law enforcement to request voluntary assistance without court oversight:

For greater certainty, no production order is necessary for a peace officer or public officer enforcing or administering this or any other Act of Parliament to ask a person to voluntarily provide to the officer documents, data or information that the person is not prohibited by law from disclosing.

Note that the provision is limited to enforcing or administering the Criminal Code or any other federal law. Now consider Bill C-13:

For greater certainty, no preservation demand, preservation order or production order is necessary for a peace officer or public officer to ask a person to voluntarily preserve data that the person is not prohibited by law from preserving or to voluntarily provide a document to the officer that the person is not prohibited by law from disclosing.

There is no limitation on the request being about the enforcement or administration of the Criminal Code or any other Act of Parliament. It simply opens the door to requests for voluntary assistance for any reason whatsoever.

The second part of the provision creates the incentive for the intermediary to disclose. It states:

A person who preserves data or provides a document in those circumstances does not incur any criminal or civil liability for doing so

For Internet providers and telecom companies, this amounts to powerful immunity. Those that preserve personal information or disclose it without a warrant, are i