Cyberbullying bill will not resurrect Bill C-30’s most costly provisions: experts

Anti-cyberbullying legislation introduced by the government in the House of Commons this week resurrects many of the lawful-access provisions previously included in its so-called Internet surveillance bill, Bill C-30, though it does not include two aspects that would have been the most costly for telecommunications companies, experts said. The Conservative government decided earlier this year not to go ahead with Bill C-30, which would have required telecom service providers to supply information to authorities without a court-ordered warrant and to build and maintain intercept capabilities, after the bill came under public criticism. The new cyberbullying legislation, Bill C-13, does not include those two stipulations, which that means the costs for telecoms would be lower than they would have been under the previous legislation, Michael Geist, the Canada research chair of Internet and e-commerce law at the University of Ottawa, said in a telephone interview. “There are two big things that have been removed from the prior bill and one, of course, is mandatory surveillance capabilities for ISPs. That was always seen as the biggest cost,” he said. “There are potential costs in compliance with the warrants and other requests for information, but those I think were probably viewed as secondary when compared to the potential equipment costs.” When C-30 was introduced in February 2012, telecom and technology firms expressed significant concerns about the cost the legislation would take to implement. The federal government said that same month that the lawful access regime in C-30 would cost at least $80 million for telecommunications providers to implement, though it did not specify whether the costs would be incurred by government or individual service providers. Under the new cyberbullying bill introduced Wednesday, “ISPs will not have to pay the same fees for interception equipment as they would have under C-30. Nor will they face the same ‘upgrade regime’ that was under C-30. So most of the costs will likely stem from preservation/production, and not from other requirements in this piece of legislation,” network specialist Chris Parsons, who studies telecom surveillance practices at the University of Toronto’s Citizen Lab, said in an email interview. Parsons added that the exact costs associated with the legislation are unknown since the specific preservation requirements are not “spelled out.” “As such, it remains unclear whether ISPs will have to pay substantially more for short/medium-term data preservation,” he said. Parsons said it’s also not spelled out “how specific the retention of traffic data will have to be. … The capability to ‘dig’ that deeply will vary depending on how the targeted service (i.e. Google, Facebook) has structured their communications systems. The effect on cost, as a result, is questionable.” Carole Saindon, spokeswoman for the federal Department of Justice, said in an emailed statement that the bill shouldn’t change very much for telecommunications companies. “Internet providers and telecommunications companies are currently doing most of what is proposed by this legislation. In many ways the legislative proposals represent new ways of doing old things,” she said, adding that “from an Internet service-provider perspective, things will not change substantially and their costs should not change either. “ She said the bill would not change “the current practice for costs imposed by compliance and support to the criminal justice system.” Under the new bill, authorities will need a warrant to compel information from telecommunications companies, though some information will be held to a lower warranting standard than other information. The standard a judge or justice will use to grant a warrant to produce information on a person or a device, or data or locational information,is reasonable suspicion that an offence has been, or will be, committed, Parsons said. Warrants for other types of information are held to a higher standard, requiring a standard of reasonable belief, as opposed to suspicion. “It does go before a judge. This isn’t C-30 where a cop shows up and says ‘gimme, gimme’ and you’re obligated to turn it over, but the suspicion standard really prevents judges from exercising their discretion,” Parsons said in a earlier telephone interview. “ say, ‘OK, if you’ve got suspicion, I believe you because you’ve got 30 years of experience on the force … and I sit on the bench.’ ” Saindon said the suspicion provision relates only to “information in which a person has little or no privacy interest,” and that it is a standard that currently applies to financial data and phone records in the Criminal Code. Parsons added these kinds of warrants can be accompanied by gag orders, meaning if companies want to demonstrate they have an attitude that privacy should be protected by making public how many requests they received and how many they responded to, they won’t be able to. “These kinds of gag orders would prohibit those kinds of incredibly useful numbers that both indicate the amount of times government is accessing information but also indicating whether ISPs are really fighting back,” he said. “When you have a … good ISP in Canada that’s really fighting for Canadian civil rights, you want them to be able to market that.” He added that will also reduce the interest companies will have in fighting those requests. Saindon said the gag order is important in cases where there is a risk the suspected criminal will be tipped off. “Before making this particular order, the police would have to satisfy a judge that the disclosure of the existence or contents of a preservation or production order would jeopardize the conduct of the investigation of the related offence. Should someone subject to such a court order object to such an order, the law would provide them with an opportunity to apply to the court to ask the judge to change or revoke the order and permit disclosure,” she said. C-13 also includes a provision that would benefit companies who cooperate with the government. Under the bill, if telecommunication companies provide information voluntarily to authorities, there will be no liability. That means if a telecom company cooperates with CSIS, their customers wouldn’t be able to take legal action against them, Parsons said. Another provision that will affect telecommunications companies is that location data will have to be accessible, which will affect wireless service providers, among other companies, Parsons said. “We’re talking about not just about ‘sit down at your computer traffic data’ but potentially a far broader range,” he said. Wireless providers will find themselves affected by the bill in a number of different ways, Geist said. “Certainly, some of the locational stuff is particularly geared toward their services, and the metadata, of course, affects them just in the same way as it would affect wired,” he said. “They may find themselves on the receiving end of large numbers of these warrants, lower thresholds for disclosure, customers who may not be all that happy about it, questions about what they’re doing to protect the privacy of their subscribers, I think are the sorts of things we might see.” Marc Choma, a spokesman for the Canadian Wireless Telecommunications Association (CWTA), said in a phone interview that the association’s concerns remain the same as they have been in the past when similar legislation was proposed. “One of our main concerns … is the cost recovery associated with any sort of obligations that would be put onto the wireless carriers,” he said. The association would also like to make sure that any obligations put on wireless carriers would apply to all providers in the same way, he said, as well as that they would apply to existing and future technology. “That we wouldn’t be looking at spending a lot of money and introducing technology on legacy systems of the past … that it’s forward looking and not retroactive,” he said. Geist said that telecommunications providers should expect the new cyberbullying legislation to attract attention and put them in the spotlight. “I think undoubtedly questions are going to be raised, both about what government’s looking to do, but also about the way in which telecom providers will respond,” he said. —With reporting by Anja Karadeglija at akarad@thewirereport.ca and editing by Derek Abma at dabma@thewirereport.ca

Cyberbullying bill will not resurrect Bill C-30’s most costly provisions: experts

News | November 22, 2013

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