With the current events taking place here in Canada surrounding the dire consequences of cyberbullying/digital peer aggression, I am watching with great interest the comments, by some, about the need for more laws to be passed here in Canada to help deal with this new digital challenge.
Unknown to many in Canada, the Criminal Code, which applies to every province and territory in Canada, has approximately 14 different offenses or sections that I believe can effectively be used to deal with a variety of forms of digital peer aggression, these include:
- Criminal Harassment
- Utter Threats
- Defamatory Libel
- Impersonation
- Intimidation
- Counseling Suicide
- Extortion
- Sending False Messages
- Hate Crime
- Voyeurism
- Mischief to Data
- Unauthorized Use Of A Computer
- Possession, Distribution and Accessing of Child Pornography
- Mischief
There is no doubt however, that some of these laws could be tightened up specific to their application as they apply to cyberbullying/digital peer aggression here in Canada.
The real challenge that law enforcement now faces is that they need to prove these crimes, or any new criminal code authority, beyond a reasonable doubt, to a judge and/or jury. Proving a crime in the court of public opinion is very different than proving it in a court of law, and so it should be to ensure that we as a society convict the guilty and not the innocent. This is where evidence, and the collection of such evidence, is so important. Many of my friends believe that the collection of evidence to prove a case in a Canadian court of law is the same process that they watch on the hit TV show CSI. Oh if it were only that easy!!!
The collection of evidence to prove a digital crime can be a very labour-intensive process, especially where the evidence, if located in the digital world, can be morphed or even hidden. Given that a person may have posted a nude sexualized picture of a person under the age of 18 on a social network may be obvious, both the police and Crown Counsel will now need to prove it to a court of law beyond a reasonable doubt. Again, knowing it and proving it in a court of law are two different things. To do this will require evidence, which at times can be very challenging, given where such evidence is likely going to be stored in the digital world.
Challenge #1:
If a social network, such as Facebook, or an Internet Service Provider (ISP) has an office here in Canada, law enforcement can obtain a production order, a court ordered document that directs a specified social network or ISP to provide authorities with the evidentiary documents listed in the order. Once the courts sign this production order, law enforcement can then serve it on the identified social network or ISP. Now for the first challenge: if it is a British Columbia law enforcement agency that is investigating an offence, but the social network’s or ISP’s office is located in Toronto, once the production order is issued in BC, it will have no jurisdiction in Ontario until it is legally “backed” by a court in Ontario. This takes time and further use of human resources.
Recommendation #1:
Create federal legislation that allows a production order, no mater where issued in Canada, to have jurisdictional authority in every province and territory in Canada. This will help to overcome the unneeded administrative “backing” process, which takes time and resources.
Challenge #2:
Obtaining a production order for the purpose of acquiring digital evidence here in Canada is a fairly straightforward court process, however, it has no legal authority in any other country outside of Canada. Having said this, many of the well known ISPs and social networks (not all) have actually stated that if they receive a valid court issued production order/search warrant from another country, they would honor it and provide authorities with the required documents needed to support a charge. This however, is a verbal agreement that has no legal authority if the social network or ISP decides not to cooperate with authorities.
If a social network or ISP however, does not have an office here in Canada where a production order can be served, and is unwilling to voluntarily cooperate with law enforcement, the process of obtaining such evidence can become problematic. Given that many of the social networks and ISPs, where the above noted criminal evidence is often stored, are located outside of Canada, often police are required to make application via the “Public Prosecutor Service of Canada” and the “Mutual Legal Assistance In Criminal Matters Act” (MLACMA) which can be located here: http://www.ppsc-sppc.gc.ca/eng/fps-sfp/fpd/ch43.html to obtain such evidence. This can be a very tedious process, and when you take into consideration the fact that these types of legal applications will likely be growing exponentially given the popularity of the internet and social networks, it would be reasonable to expect that it will be quickly bogged down in “process,” to the point where such MLACMA application could take over a year.
Recommendation #2:
We need to streamline the MLACMA process so that law enforcement can expedite the legal process when it comes to obtaining production orders in other countries. I don’t think this is so much a legislative change, as it is a policy and procedural change.
Challenge #3:
Most internet and cell phone service providers have “Terms of Service and Conditions” (TOS) agreements that have to be signed by a user. Many of these TOS’s make digital peer aggression and sexting behavior a violation of these agreements. As an example, here’s FIDO’s:
Unlawful or Inappropriate Content
Any Fido Party reserves the right to move, remove or refuse to post any content, in whole or in part, that it, in its sole discretion, decide are unacceptable, undesirable or in violation of the Terms or this AUP. This includes, without limitation:
- obscene, profane, pornographic content;
- defamatory, fraudulent or deceptive statements;
- threatening, intimidating, abusive or harassing statements;
- content that violates the privacy rights or intellectual property rights of others;
- content that unlawfully promotes or incites hatred;
- content that is otherwise offensive or objectionable; or
- any transmissions constituting or encouraging conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any municipal, provincial, federal or international law, order or regulation.
For purposes of this AUP, “content” refers to all forms of communications including, without limitation, text, graphics (including photographs, illustrations, images, drawings, logos), executable programs, audiovisual recordings, and audio recordings.
FIDO further goes onto say:
Violation of this Acceptable Use Policy
As set out in the Terms, we have the right, but not the obligation, to monitor or investigate any content that is transmitted using the Services (other than voice Services) or the Equipment; and to access or preserve content or information in accordance with the Terms. We prefer to advise subscribers of inappropriate behavior and any necessary corrective action. However, if the Services are used in a way that we, in our sole discretion, believe violates this AUP, any of the Fido Parties may take any responsive actions they deem appropriate. Such actions may include, without limitation, temporary or permanent removal of content, cancellation of newsgroup posts, filtering of Internet transmissions, and/or the immediate suspension or termination of all or any portion of the Services or your account. The Fido Parties will have no liability for any such responsive actions. The above described actions are not exclusive remedies and the Fido Parties may take any other legal or technical action deemed appropriate. Upon termination of an account, any of the Fido Parties are authorized to delete any files, programs, data and e-mail messages associated with such account. The failure to enforce this AUP, for whatever reason, shall not be construed as a waiver of any right to do so at any time. If any portion of this AUP is held invalid or unenforceable, that portion will be construed consistent with applicable law as nearly as possible, and the remaining portions will remain in full force and effect. This AUP shall be exclusively governed by, and construed in accordance with the governing law provision set out in the Terms.
These TOS’s, and recommended consequences, are vendor specific, self-regulated and self-enforced, which can again become problematic. I applaud the industry for creating these TOS’s, but the enforcement and consequences to actions of clear violations need to be more stringently enforced and acted upon by the industry.
Recommendation #3:
The CRTC, or other federal regulatory body that has jurisdiction, should consider creating binding federal regulations that when industry is provided a report by the police that clearly shows a violation of a vendor’s TOS, then:
- Immediate permanent removal of identified content should be provided
- Cancellation of identified newsgroup posts should be immediate
- Filtering of Internet transmissions should be immediate, and
- Immediate suspension or termination of all or any portion of the services or your account.
Industry is making millions, if not billions, of dollars on both home based and mobile-based internet and social networking access. It’s time for the industry to step up to the plate and start holding their subscribers liable, when they are clearly violating a vendor’s TOS. I also believe that there needs to be significant financial consequences to actions where the industry fails to act on clear violation of TOS’s, that are brought to their attention by law enforcement. Not to do so will only cause industry not to self-police on this issue.
It should also be an industry standard that a TOS, similar to FIDO’s, be a requirement for all ISP’s and mobile vendors in Canada.
Again, do I believe that we need new criminal laws here in Canada to deal with the issues of digital peer aggression and sexting gone wrong issues? NO. Do I believe that we can tighten up some of the existing criminal code sections mentioned in this posting to make them more congruent with today’s online challenges? YES. The fact remains, however, that the process to obtain evidence to prove a criminal charge, beyond a reasonable doubt, to a Canadian court of law, is fraught with both legal and administrative process. If government can make this evidentiary collection process smoother through legislative and administrative change, it would allow law enforcement the ability to bring these cases to court in a quicker and more efficient way. We also need to hold ISP’s and mobile providers more accountable to both creating and enforcing appropriate and reasonable TOS specific to this issue, which I believe can be accomplished with proper federal over watch, legislation, and administrative processes.
Are my recommendations in this posting exhaustive? NO, but I believe they are an important piece to the overall legal process puzzle in dealing with those who criminal target others online. Laws however, are not a panacea to stopping digital peer aggression or sexting gone wrong issues. In my opinion, education, education, education is the keystone, but we do need laws for those who become willfully blind to such education, and criminally target others both online and offline.
Digital Food For Thought
Darren Laur
AKA #thewhitehatter
