The federal government introduced new legislation in November to force internet service providers (ISPs) to tell police about sites they suspect may contain child porn.
The legislation, which is expected to be approved by all parties, would allow for fines and jail time for ISPs that fail to report to police any tips they receive about sites they host. The legislation also applies to sites like Hotmail or Facebook and businesses that provide email services.
The legislation also requires ISPs to preserve any evidence from the sites and prohibits them from telling the website or its owners about any police investigation.
Justice minister Rob Nicholson told a news conference the legislation will improve the ability of police to investigate child pornography.
“A mandatory reporting regime across Canada will improve law enforcement’s ability to detect offences and help reduce the availability of online pornography, facilitate the rescue of victims and help identify and apprehend offenders,” he said.
Coupled with two bills introduced earlier this year, the legislation will force ISPs to increase client monitoring and will allow police much greater access to people’s internet activity.
Those earlier bills — the Investigative Powers for the 21st Century Act and the Technical Assistance for Law Enforcement in the 21st Century Act (Bills C-46 and -47) — were introduced on Jun 18 and are currently before Parliament’s Public Safety and National Security Committee.
The British Columbia Civil Liberties Association (BCCLA) says that, taken together, the three bills could leave internet users vulnerable to the whims of individuals and police. A BCCLA statement expresses concern about the possibilities of “witch hunts.”
“Someone is turned into a child porn suspect simply because someone gives a tip to the ISP, website operator or email provider,” states the BCCLA. The civil liberties group notes that the law would be “wide open for abuse by people with a grudge, people who are mistaken or suspicious of someone they know, or by malicious people on the internet. [It] could easily turn into a witch hunt.”
Bills C-46 and C-47 will force ISPs to install technology capable of intercepting and storing information and transmissions, including email, from their subscribers. ISPs will have 18 months to install the equipment, unless they have less than 100,000 subscribers, in which case they have three years.
Once the equipment is installed, police will be able to require certain information from ISPs upon demand, without a warrant. That would include names and internet and home addresses of subscribers. Currently, police require a warrant to obtain such information, although many ISPs provide such information without one.
Obtaining the actual content of communications will still be slightly more difficult for police. Under the new legislation, police will be able to require an ISP to freeze all information and communications from a particular subscriber. The company would be unable to delete any information. Police would then have to obtain a “production order” from a court within 21 days to allow them to access that information or to force the ISP to hold the information for a further 90 days.
A production order, however, has a lower threshold of proof than the warrant that’s currently required. Police would only have to show “reasonable grounds to suspect criminal activity” — which could, of course, include things like public sex or solicitation or anal sex under 18. A warrant requires police to show reasonable grounds to believe that a criminal offence is being committed, which is legally a tougher standard to meet.
The legislation is similar to laws already in place in the US. But there are questions about how effective those laws are. According to a world survey this year from Cybertip.ca, a national tipline for child sexual exploitation which supports the new legislation, 65 percent of child porn websites were located in the US. Canada was second at eight percent.
University of Ottawa professor Michael Geist — one of the country’s leading experts of internet privacy — recently questioned the effectiveness of the proposed law.
“While there are reports that Canada is a source of child pornography websites, a major European-based study concluded that focusing on the world wide web and blocking content makes little sense in trying to combat child pornography (the same report found that image blocking initiatives like the Canadian Project Cleanfeed are ineffective),” wrote Geist in his blog. “Instead, the real problem lies in dissemination of child pornography in newsgroups, private groups and other private spaces that fall largely outside the potential for tips envisioned by [the Tories’ new bill].”
The BCCLA also raises concerns about turning ISPs into guardians of website content.
“Do we want ISPs, website operators or email providers deciding where to draw the line in terms of expression and what deserves to be reported to the police?” states the BCCLA. “There are some clear cases and these are likely already being reported to police, but in this situation ISPs could be covering their liability by reporting the ridiculous, ie: baby photos, fiction…”
The BCCLA also worries that the new legislation could prove harmful to internet businesses and entrepreneurs.
“The data retention obligations and costs of notifying the police could be quite onerous to ISPs, and especially to web operators who may already be struggling to get a new business off the ground,” states the BCCLA.
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