Peter MacKay, Minister of Justice and Attorney General of Canada, takes part in a press conference in the House of Commons foyer on Parliament Hill in Ottawa on Monday, Nov. 25, 2013. The Conservative government and Mr. MacKay have reintroduced controversial elements of cyber-snooping Bill C-30 as part of the anti-cyberbullying Bill C-13Sean Kilpatrick/The Canadian Press
There's an underhanded trick sometimes employed by fiction writers looking to defame someone with impunity, and it goes like this: If you base a particularly loathsome character in your story on a real person you dislike, try to give that character some sort of sexual dysfunction. That way, the thinking goes, the subject of your broadside will be less likely to complain that the character is based on him, lest people think he really does have a sexual dysfunction.
As bald-faced as such tactics may seem, they tend to work. It's far more difficult to argue a position when your side of the argument has pre-emptively been associated with something embarrassing or unpopular.
For a fine example of similar tactics at work, take a look at the federal government's latest cyberbullying bill.
Last week, Justice Minister Peter MacKay introduced Bill C-13, the "Protecting Canadians from Online Crime Act." With much of the country hypnotized by the twin spectacles of the Senate in Ottawa and City Hall in Toronto, the bill received less public attention than it would had it been born during a less chaotic news cycle.
Since introducing the bill, the federal government has gone to great lengths to frame it as a response to the very real and growing menace of cyberbullying – in particular, the "revenge porn" phenomenon, in which one party (usually a man) gets a hold of intimate photos of another party (usually a woman) and posts them online for everyone to see.
The term comes from the notion that the presumably aggrieved party is exacting "revenge" for their partner's infidelity, a bad breakup or something of the sort by publicly embarrassing the other person. In reality, revenge porn is a fairly heinous way of ruining a person's life, thanks to the speed with which such images can spread around the Web and climb up search engine rankings (not to mention the fact that not all such images are taken with the victim's consent to begin with). So pervasive is this phenomenon now that a creepy cottage industry has sprung up around it, consisting of porn sites that run side-businesses charging victims of revenge porn a fee to remove photos and videos.
Earlier this year, I interviewed a woman who'd gone through this kind of ordeal after an ex-boyfriend posted images of her online. Her attempts to get the photos removed quickly turned Kafkaesque, as did her attempts to pursue her ex in court – in many jurisdictions, there exists no law against this sort of thing. Eventually, the photos became so intertwined with the search results for her name that she had to legally assume a new identity.
All of this to say that there exists a strong and entirely justified appetite among many Canadians for cyberbullying legislation, especially in light of such high-profile cases as that of Rehtaeh Parsons, the Dartmouth 17-year-old who killed herself last year after her family says photos of her allegedly being sexually assaulted were posted online. The case rightfully shocked the country and prompted action at the provincial and federal levels.
Indeed, the federal government's new bill would be welcome legislation to many more Canadians were it actually focused on cyberbullying. But beyond a few new clauses, the most direct relationship Bill C-13 has with cyberbulling is that of opportunism.
Much of the new bill's contents are in fact a re-hash of C-30, the deeply unpopular lawful access legislation tabled (unsuccessfully) by the government last year – that is, much of this new bill is about expanding the government's surveillance powers, just as the last bill was. This comes despite an explicit promise from former justice minister Rob Nicholson that the items from bill C-30 would never be re-introduced.
To be sure, there are several differences between the new bill and the old one. C-13 now makes it a crime, punishable by up to five years in jail, to distribute, sell or generally make available an intimate image without the consent of the person depicted in that image. This is the bill's primary cyberbullying provision.
(Another item related to cyberbullying makes it possible to charge anyone "who, without lawful excuse and with intent to harass a person, repeatedly communicates, or causes repeated communications to be made, with them by a means of telecommunication." As it stands, the clause is so vague that, should the bill pass, courts will likely spend countless hours trying to interpret its borders. In the government's defence, cyberbullying is often an act carried out using words, and criminalizing certain types of speech is going to be controversial under any circumstances).
Likely in response to the backlash last year, the new bill also does away with two of the most contentious elements of C-30. Telecom carriers will no longer be required to hand over basic subscriber information without a warrant, or build extensive snooping capability into their systems. This will perhaps be less comforting to Canadians now than before the Edward Snowden leaks revealed a vast and pervasive government surveillance program that has little need for warrants or carrier support.
But beyond those changes, C-13 contains many of the same surveillance wish-list items packed into the old bill, and in some cases adds brand new ones. For example, under the proposed law, carriers would be granted a kind of immunity from the criminal and civil consequences of voluntarily disclosing customer information, a sort of carrot offered as incentive to hand the data over without too much resistance. The bill would also give authorities more access to metadata, such as information about phone call lengths, and geographic information.
In addition, as University of Ottawa law professor Michael Geist notes, there is, under the new bill, essentially no limitation on the reasons for demanding personal information disclosures.
What do any of these surveillance provisions have to do with cyber-bullying? Likely the same thing that similar provisions had to do, previously, with child pornography or terrorism: the government would very much like to expand its surveillance powers, and appears willing to push whatever panic button it thinks will make that process easier.
The most unfortunate aspect of C-13 is that, like its predecessors, the bill actually includes some important, well-reasoned proposals – in this case, ones related to cyberbullying and the posting of intimate images without consent. But the government's commitment to such proposals appears weaker when it mashes them together with a slew of largely unrelated and long-criticized surveillance provisions (not to mention a drive-by clause about stealing cable).
Still, the bill may well pass anyway, in part because the debate around it has already been pre-emptively poisoned. Last year, after the introduction of C-30, former public safety minister Vic Toews implied that critics of the bill were siding with child pornographers. In previous instances, critics were accused of siding with terrorists. This time around, it's cyberbullies.
And who wants to be seen as siding with the cyberbullies? Many will say: best to just let the whole thing slide.