#CyberFLASH: Bill C-13 has little to do with cyberbullying

cyber_surveillance.jpg.size.xxlarge.promoIn Bill C-13, the federal government proposes to “modernize” the lawful access provisions of the Criminal Code that allow the state to get access to electronic communications in appropriate circumstances. This has little to do with cyberbullying, the bill’s supposed target.

The lawful access provisions are recycled from past failed attempts at lawful access reform, the main parameters of which were set in the post-Sept. 11 world. They provide a tool kit that has long been sought by the state in relation to investigating terror cases although the case for the necessity of this tool kit is weak.

Two important questions need more public discussion: what kinds of surveillance do the new powers enable and are these powers constitutional?

Bill C-13 creates new types of production orders that permit police to access “transmission data” as well as “tracking data” on a standard of reasonable suspicion. It also creates new warrants that allow authorities to collect transmission data through a transmission data recorder and tracking data through a tracking device, again on a standard of reasonable suspicion.

What do authorities need to suspect? First, they need to suspect that an offence has been or will be committed. Second, they need to suspect that the transmission data “will assist” the investigation. These standards of suspicion fall below the usual requirements for a search warrant: reasonable grounds to believe that an offence has been committed and that the search will produce evidence of it.

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