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05/26/2014 12:39 EDT | Updated 07/26/2014 05:59 EDT

From Toews to Todd: The Unravelling of the Government's Online Privacy Laws

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As criticism of Bill C-13 mounts, the government's sales strategy for its latest lawful access bill is starting to unravel. Many will recall the immediate, visceral opposition to Bill C-30, the last lawful access bill that started with then-Public Safety Minister Vic Toews declaring the day before introduction that Canadians could either stand with the government or with the child pornographers. The bill never recovered as Toews' divisive remarks placed the spotlight on the warrantless disclosure provisions and the lack of privacy balance. Within ten days it was on placed on hiatus and formally killed a year later.

While the government has removed some of the most contentious elements from Bill C-30, many privacy concerns remain (immunity for voluntary disclosure, metadata). Indeed, it appears that its primary takeaway from the last legislative failure -- an incredibly rare moment in the life of a majority government -- was that it was a botched sales job. So despite a promise not to bring back lawful access legislation, it did so months later, this time armed with a new marketing strategy. Bill C-13 was framed as a cyber-bullying bill and its primary sales people were presumably supposed to be the victims of cyber-bullying and their parents.

The turning point on Bill C-13 came ten days ago when they appeared before the Justice Committee studying the bill. Carol Todd, the mother of Amanda, led off and courageously insisted that the government stop using her child's name to undermine privacy:

"While I applaud the efforts of all of you in crafting the extortion, revenge, porn, and cyberbullying sections of Bill C-13, I am concerned about some of the other unrelated provisions that have been added to the bill in the name of Amanda, Rehtaeh, and all of the children lost to cyberbullying attacks.

I don't want to see our children victimized again by losing privacy rights. I am troubled by some of these provisions condoning the sharing of the privacy information of Canadians without proper legal process. We are Canadians with strong civil rights and values. A warrant should be required before any Canadian's personal information is turned over to anyone, including government authorities. We should also be holding our telecommunication companies and Internet providers responsible for mishandling our private and personal information. We should not have to choose between our privacy and our safety.

We should not have to sacrifice our children's privacy rights to make them safe from cyberbullying, sextortion and revenge pornography."

Ms. Todd's comments effectively derailed the government's sales strategy for Bill C-13, making it clear that the failure to appropriately protect our privacy victimizes the same people the bill purports to protect. In the days since her appearance, the voices against the bill have grown louder. Ontario Privacy Commissioner Ann Cavoukian this week:

"The time for dressing up overreaching surveillance powers in the sheep-like clothing of sanctimony about the serious harms caused by child pornography and cyberbullying is long past."

Former Public Safety Minister Stockwell Day, who faced his own backlash against lawful access, yesterday:

"There can be an overreaction in terms of how you correct it. So [Cavoukian is] raising a bit of an alarm here. Let's be very careful in how we could protect someone in a situation like this, but let's also be careful in going too far and limiting even things like free speech, [or using] invasive techniques that could be employed by policing. I'm hoping they take another look at this and kind of curtail some of those powers."

Next week, the committee resumes with appearances from criminal lawyers, the Canadian Bar Association, and others (I'm currently scheduled to appear on Thursday). With the criticism likely to grow, the government should recognize that its lawful access strategy has failed yet again. The right approach would be to separate the bills, move forward on addressing cyber-bullying, and go back to the drawing board on surveillance and lawful access.

*This blog previously appeared on Michael Geist's website.

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