A judge of the Nova Scotia Supreme Court has issued the first "Cyberbullying prevention order" under the province's Cyber-safety Act.
The case, as it has been reported, appears to be a classic case of online harassment where the victim reportedly received numerous threatening messages through Facebook. When the user was "blocked", he then repeatedly communicated with the victim's children conveying threatening messages. I haven't seen the actual order yet, but it reportedly orders him to stop "cyberbullying" and communicating with or about the victim.
One additional point that's worth pondering is that the respondent to the order, who did not appear, is in Ontario which may make enforcing this order under Nova Scotia's unique law a challenge.
From Global TV (the link will also take you to a video where I was interviewed) [link and text in blog post below]:
If you were watching today's testimony of John Forster, chief of the Communications Security Establishment Canada and Michel Coulombe of the Canadian Security and Intelligence Agency, before the Senate national security and defence committee, you probably noticed the consistent denial that they were intercepting "private communications", in contrast to metadata. That phrase was repeated like a mantra. The origin seems to come from the Criminal Code, which contains the following ambiguous definition at Section 183.
"private communication” means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it;
It would certainly appear that these witnesses were well coached to believe that "private communication" includes "metadata", which was dismissed as just "data about data". I'm not so convinced that "private communication" excludes signalling information or transmission data. First, the definition refers to "any oral communication" or "any telecommunication", not "any oral communication" or "any [oral] telecommunication". Words matter and -- in this case -- punctuation matters.
Any capturing of metadata is, in my view, capturing "private communications".
And the suggestion that capturing "metadata" is somehow innocuous flies in the face of reality. Who I call is my business. How often I call them is also my business. I have no problem if you can get a judge to issue a warrant, based on reasonable and probable grounds, to intercept it. But dragnet surveillance of innocent people is not acceptable in a free and democratic society.
(I'm afraid, given the recent revelations, that nobody will be able to say -- for any communication -- that it "is reasonable for the originator to expect that it will not be intercepted".)
Could it be that they believe they no longer have a right to a reasonable expectation of privacy and therefore it no longer matters.
I have a BB used almost strictly as a text, email and phone device that hasn't needed intervention in weeks / months as well.
Last night, the Canadian Broadcasting Corporation reported on another leaked #Snowden document that provided more information on the activities of the Communications Security Establishment of Canada ( #CSEC ). http://www.cbc.ca/news/politics/csec-used-airport-wi-fi-to-track-canadian-travellers-edward-snowden-documents-1.2517881
The actual document at issue is here, in redacted form: http://www.cbc.ca/news2/pdf/airports_redacted.pdf
Interestingly, CSEC has responded with a media release: http://www.cse-cst.gc.ca/home-accueil/media/media-2014-01-30-eng.html
I welcome CSEC and the government of Canada finally entering the discussion, but it is all spin. What's additionally galling is that they are pointing to s. 273.64 of the National Defence Act for their authority to collect metadata:
"CSE's activities, including the collection and analysis of metadata, are authorized under the National Defence Act, under section 273.64. Our activities are further guided by a robust framework of Ministerial Directives and operational policies. CSE’s activities, as well as its operational directives, policies and procedures, are reviewed by the CSE Commissioner, to ensure they are lawful."
That section sets out the mandate of CSEC in very broad terms, but it does not create any authority to collect the metadata of Canadians.
273.64 (1) The mandate of the Communications Security Establishment is
(a) to acquire and use information from the global information infrastructure for the purpose of providing foreign intelligence, in accordance with Government of Canada intelligence priorities; ...
Subsequent sections of the Act set out the CSEC's authority, none of which permit the warrantless collection of metadata of Canadians.
If the CSEC has a legal opinion to the contrary, I'd like to see it.
- McInnes CooperPrivacy Lawyer, 2001 - present
- Federal Court of CanadaLaw Clerk, 1999 - 2000
- Patterson Palmer (now McInnes Cooper)Articled Clerk/Summer Student, 1998 - 2000
+1 (902) 444-8535, +1 (650) 937-9471
PO Box 730Halifax, NS B3J 2V1
I am a partner with McInnes Cooper, where I advise clients on all aspects of Canadian privacy laws and assist with technology transactions. I am the author of the Canadian Privacy Law Blog and the Canadian Cloud Law Blog.
I am the former President of the Canadian IT Law Association and former Chair of the National Privacy and Access Law Section of the Canadian Bar Association. In addition to my privacy law practice, I also advise corporate, institutional and individual clients on intellectual property protection and commercialization, technology-related acquisitions, joint ventures, financings, licensing and legal disputes, including all manner of software, Internet and electronic commerce issues.
I'm listed in the inaugural and subsequent editions of The Best Lawyers in Canada in the category of Information Technology law and the International Who's Who of Business Lawyers.
I currently live in Halifax, but I grew up in a Canadian foreign service family, living in exotic locales such as Egypt, Ghana, India, Sri Lanka, Washington DC, Romania and Ottawa.
If I may be so bold, if you want to add me to your circles, I likely belong in ones entitled:
- Privacy types
- Technology fanboys
- Haligonians or maritimers
- Photographer wannabes