“There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live—did live, from habit that became instinct—in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.” – 1984, George Orwell
The present government of Canada has made considerable efforts to explain how this new legislation is going to protect Canadians from criminals; but nothing is said about it also changes internet privacy of everyday Canadians to a point that offers an overwhelming amount of surveillance and preservations of online activity. It also covers tracking locations of persons, phone, banking data, and other personal information. Many of which is premised on nothing more than suspicion.
The legislation is very dense, and probably on purpose, making it almost impossible for the average Canadian to understand what exactly is happening to their online privacy (in effect, you don’t have much when this comes into force). Indeed, for me as an experienced lawyer in search and seizure law, the legislation is very condensed and difficult to understand. This is an attempt to provide an average Canadian with a proper understanding of the new legislation and how its real effects are must more to do with protecting Canadians as it is being able to monitor them immediately and secretly when very low legal thresholds are met:
Why Bill C-13 (Protecting Canadians From Online Crime Act) is more about surveillance than it is about “revenge porn”:
As mentioned, there this Bill covers much more than “revenge porn” and the mass appeal such legislation would otherwise have. Beyond news headlines, lies an impending law that is nearly impossible to distill to quick headlines. Here is a summary of how Bill C-13 will drastically change the manner in which Canadians may be watched by the government, and internet history and activity preserved on nothing more than “suspicion”.
These are simply highlights and does not capture all aspects to the proposed legislation and the extent to which it extends.
Police and “Public Officer” Preservations Demands and Orders For Data
- Without going through a Court, police, or other government agent (“public officer”), can make a secret demand to an internet/data to preserve the internet history/activity of a person for 21 days (90 days for foreign state requests). (Section 487.012, Form 5.001).
- Police/pubic officers may also impose conditions they deem appropriate including preventing the ISP/date holder from disclosing such a request was made, etc.
- This can be made on the premise that police/government have reasonable grounds to suspect of a crime, or if the target is subject to “an investigation” of a foreign state – i.e., the global US surveillance efforts made public through the Snowden leaks. (Section 487.012(2)(a)-(c))
Judicially Authorized Preservations Demands and Orders for Data
- A secret application can be made by police or a “public officer” to preserve data in the same manner set out above to a Justice of the Peace, or Judge. (s.487.013, Form 5.003). This preservation of internet history/data will last 90 days.
- Unlike section 487.012, there is nothing preventing the police/pubic officer from reapplying for indefinite continued surveillance of the person.
- Note: The grounds required for a Justice to issue an order is based upon the lesser legal standard of “reasonable grounds to suspect” in contrast with the standard threshold of “reasonable grounds to believe”. This means as long as a “suspicion” of police or “public officer” is reasonable, then it such an preservation order will be granted. It is hard to imagine where any suspicion is “unreasonable”, even if it is far fetched and speculative. For example, if a police officer “suspects” that a person driving at night might have drugs on them, is that “unreasonable”? Obviously this means that despite there being judicial scrutiny applied, it is largely meaningless as it offers little legal basis for a Justice to deny such an order because the legal threshold is so low.
Production of Internet Data, History and Activity. Production of Tracking (GPS, location) Data and Banking Information.
- Under section 487.014, the Justice of the Peace or Judge may then order the information sought to be prepared, produced to the party seeking it. Before doing so, the Justice ought to be satisfied that there are reasonable grounds to believe that it will afford evidence to an offence. (Form 5.005)
- Similarly, an production order disclosing the identity of the person or device is obtained on the same grounds, s.487.015
- Similar legal thresholds apply to production orders for the productions of transmissions data, and tracking information (i.e., GPS, and other location data). (487.016, 487.017, Forms 5.006, 5.0007)
- Under 487.018, the same standards for production apply as it relates to banking information, identification of users of accounts, etc. This would also include present identification and past addresses and account. Essentially, a means to track movement of money and who moved it.
Discussions with a Lawyer and Forming Solicitor Client Privileged Communications? Optional.
- Under 487.019, states: “An order made under any of sections 487.013 to 487.018 may contain any conditions that the justice or judge considers appropriate including, in the case of an order made under section 487.014, conditions to protect a privileged communication between a person who is qualified to give legal advice and their client.”
Orders to Keep Things Secret, Immunity from Civil or Criminal Prosecution of those that Produce, Criminal Consequences for Failing to Do So:
- Section 487.0191 states that a secret application (ex parte) to a Justice of a Peace or Judge to make an order prohibiting a person from disclosing the existence or some or all of the contents of a preservation demand made under section 487.012 or a preservation or production order made under any of sections 487.013 to 487.018 during the period set out in the order.
- Section 487.0195 (2) makes it clear that a person who preserves data or provides a document in accordance with these provisions does not incur any criminal or civil liability for doing so.
- Under 487.0196, no one is excused from complying with an order because it may incriminate them. In exchange, no document that is produced by that person may be used in evidence against them other than a prosecution perjury, giving contradictory/false evidence, or obstructing justice. Note: this does not in law prevent the police from using this evidence to further the investigation and obtain evidence that is not directly produced by that person and then use the subsequent evidence in that person’s prosecution.
- Failing to follow the order under 487.012 (police preservation order) order may be sentenced up to six months in jail or a fine of $5000.00. If people or institutions contravene any of these other sections (487.013 to 487.018) they may be fined up to $250,000 or to imprisonment up to six months, or both.
Warrants for Tracking Devices, Transactions, and Things
The new legislation to come into force is not confined to the internet. It also amends a considerable amount of the Criminal Code to track Canadians through devices, transactions, and things.
- Section 492(1), permits a Justice of the Peace or Judge to order, on the basis of reasonable grounds to suspect an offence, to track the location of “one or more transactions or the location or movement of a thing, including a vehicle, will assist in the investigation of the offence” and therefore “obtain that tracking data by means of a tracking device.” This would therefore include cars, packages, computers, boats, etc.
- That standard is elevated to reasonable grounds to believe on the above tracking devices if ”identifying the location of a thing that is usually carried or worn by the individual”. Note: It is still a very low standard in law from a practical point of view. This is likely meant to capture cell phones that are on a person most times. However, I am sure that many arguments will be made that some people do not “usually” have their cell phone on them and therefore subject to the lower standard. It’s strange that someone who has their cell phone on them at all times would be afforded more privacy protection (albeit still very little) than a person who carries their cell phone only on occasion or switches between different cell phones.
- Police may install these devices “covertly” s.492(1)(3). Note, this ought to be read in the context that it is a defence for a police officer to break in order to fulfill the implementation of a warrant such as this. This means that it would appear lawful for police to trespass, enter a dwelling, or otherwise in order to “covertly” install such tracking devices. That section is as follows:
25.1 … (8) A public officer is justified in committing an act or omission — or in directing the commission of an act or omission under subsection (10) — that would otherwise constitute an offence if the public officer
(a) is engaged in the investigation of an offence under, or the enforcement of, an Act of Parliament or in the investigation of criminal activity;
(b) is designated under subsection (3) or (6); and
(c) believes on reasonable grounds that the commission of the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the investigation and the reasonable availability of other means for carrying out the public officer’s law enforcement duties.
- The same processes and grounds (to “suspect”) apply to installing “data transmission” tracking devices under 492.2 thorough a “data transmission recorder”. I am not sure what this means, but it sounds invasive and geared towards internet surveillance. The same covert installation and removal authority applies.
- These warrants may last 60 days, and up to a year in terrorism and organized crime offences. After that, police/public officers can reapply.
Does Everyone Feel Safe From Online Crime Now? …didn’t think so.
Despite its deliberately appeasing title, the title of “Protecting Canadians from Online Crime Act” is like calling the 2012 Japanese Tsunami a big wave. It is a further insult to Canadians to think that this sweeping legislation will pass upon premise of protecting victims.
At a minimum, the bill ought to be separated into perhaps ”Protecting Canadians from Online Crime Act” and, since we have become fans on descriptive titles of Legislation, “Surveilling Canadians’ Internet Activity, Movement, and Covert Operations Act”. When do we start the public debates on the latter?