Appearance before the Senate Standing Committee on Legal and Constitutional Affairs on Bill C-22 – An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service
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February 16, 2011
Opening Statement by Chantal Bernier
Assistant Privacy Commissioner of Canada
(Check against delivery)
Thank you for inviting me to present my Office’s perspectives on Bill C-22.
I applaud the Government for moving to curb the prevalence of online child
pornography, a profoundly repellent scourge that makes victims of our society’s most vulnerable.
Every child has inherent human rights and warrants special care and protection. This was the message of the 1989 Convention on the Rights of the Child, a message the Canadian government reaffirmed by ratifying the Convention and its Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography.
The Office of the Privacy Commissioner of Canada has been taking action in that regard.
In 2008, in the context of an international conference of data protection and privacy commissioners, Commissioner Stoddart sponsored a resolution on children’s online privacy. This resolution called for legislation to limit the collection, use and disclosure of children’s personal information.
In 2009, under the auspices of the International Development Research Centre, our Office contributed to the drafting of the Memorandum of Montevideo on the protection of children’s and adolescents’ personal data and privacy on the Internet.
In that context, I am pleased that Parliament is now considering legislation to combat child pornography. The intent is entirely laudable.
My intent here today is to submit a few questions for your deliberation, in the hope that Parliament will fashion an even better, more effective tool.
My first question relates to the implications of obliging a greater number of organizations to report — specifically, by widening this obligation to several organizations, are we further jeopardizing children who have already been victimized? Let me explain.
The bill obliges ISPs to report tips they receive from individuals about possible child pornography offences to a “designated organization.”
From a review of House of Commons debates and earlier committee testimony, it appears that the “designated organization” is Cybertip, a non-profit volunteer organization supported by the Government of Canada and such telecommunications giants as Bell, Rogers, Telus and Shaw.
Madame Chair, Cybertip already receives tips from the public, assesses them, and forwards to the police all those that are suspected of being unlawful. They have been at it since 2002 and, by all accounts, they are doing a very good job.
So, if the public can — and plainly does — already report to Cybertip, why would we wish to introduce another layer to the reporting process?
By involving ISPs, we simply expose these images to yet more eyes. By invading the privacy of these children, are we not further victimizing these children who have already been abused?
My second question relates to the organizations that will be reporting these offences. Are they best suited for the task?
This question centres on the effectiveness of the bill as currently drafted.
Effective legislation would make the best and most appropriate institutions of our society responsible for stamping out child pornography. And these institutions must be equipped with the expertise and supports necessary to swiftly and efficiently enforce the law.
As you know, Madame Chair, the bill would require an ISP to notify police if it has reasonable grounds to believe that an Internet service is, or has been, used to commit a child pornography offence.
But who are these ISPs? Do they have the necessary expertise to enforce the law?
It is conceivable that major telecommunication companies with teams of lawyers might be able to develop the legal knowledge, skills and resources necessary to provide useful assistance to police in this regard.
But the bill would also make cyber cafés, hotels, mom-and-pop restaurants and public libraries responsible for policing child pornography.
Do they have the necessary expertise and resources to do so? Consider, for example, that they would need “reasonable grounds to believe” that an offence is being committed. This is a nuanced legal concept that can be difficult for the layperson to apply. And yet, even in the absence of specific legal training or support, all ISPs would be expected to assess what it means.
Are mistakes likely? They’re certainly possible, given the legislation would make reporting mandatory.
At the very least, I would caution there will be an impulse to over-report. We observed this tendency in our audit of FINTRAC: Where banks, casinos and other money-handling organizations are required to report suspicious transactions, employees are more likely to report even innocent interactions because the penalties for non-compliance are steep.
My third question relates to accountability.
I want to underscore, Madame Chair, that my chief concern is that the legislation protect the interests of the child. In order to fully safeguard those interests, we also need a well-functioning society where the rule of law is paramount.
For that reason, I am concerned when I see that Bill C-22 also obliges ISPs to seize and preserve all suspected computer data for 21 days, without a police request or a warrant.
Since the legislation does not define exactly what information the ISP must preserve, they can preserve anything, from anybody, without the knowledge of the owners of the information, and without judicial oversight.
By contrast, if and when police are notified — by an ISP, by Cybertip or, indeed, by any member of the public — about suspicious material, an orderly and verifiable record of events is established.
Accountability, therefore, should remain where it belongs, namely, with law enforcement agencies. This best serves the interests of children and society as a whole.
And finally, I am concerned about the target of Bill C-22. Indeed, we must always be mindful of the long-term impact of any legislation on the personal freedoms of all Canadians.
Consider, for instance, the potential for heightened citizen monitoring. By asking ISPs to intrude on the private communications of Canadians in order to uncover child pornography offences, would we be opening the door to widespread surveillance of law-abiding citizens?
And, in the absence of accountability and transparency, what happens to the innocent people whose private communications are misinterpreted by well-meaning but misdirected ISPs? The consequences for their lives and reputations can be incalculable.
In closing, Madame Chair, our Office supports efforts to combat the online sexual abuse of children with legislation that is targeted and effective.
The questions I am submitting to you are aimed at ensuring the effectiveness of
C-22, which, in our opinion, should be targeted at the actual guilty parties, and should be supported by accountability mechanisms that protect both children and the right to privacy in Canada.
I welcome your questions.
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