Transferable consent: On Bill C-13, surveillance and cyber-sexual assault

Today I was invited to speak to the House of Commons Standing Committee on Justice and Human Rights about Bill C-13, the so-called Cyber-Bullying Bill. Here’s a transcript of my speech.

Thank you for having me here today. My name is Steph Guthrie, and for the last year I’ve been speaking and writing at length about the issue Bill C-13 claims to tackle. While the bill’s name in the press is the “Cyberbullying Bill”, the more specific problem addressed by components of Bill C-13 is known as “revenge porn,” a term I hate for both its inaccuracy and sexualized sensationalism.

Whatever you call it, we’re talking about sharing sexually explicit images without the consent of the person or persons depicted. While some such cases involve hacking, in many cases the subject consented to share the images with one person for private use, such as a sexual partner, and that person then violates their trust and shares the image with others, despite the subject’s (in most cases) obviously implied expectation of discretion.

The crux of the harm inflicted here is violation of informed consent. If I share an image with another person privately, that consent is not transferable. Had I known that the other person might later share the image with others, I would be unlikely to consent to letting that person access the image to begin with. So any consent I provide to a person accessing that image is pretty clearly contingent on them keeping the image to themselves.

For me, informed consent is an integral part of privacy. Indeed, in her influential Privacy By Design framework, Ontario Privacy Commissioner Ann Cavoukian cites freely given and specific consent as a vital element of digital privacy.

Cavoukian’s principle can be applied to non-consensual intimate image-sharing, which, let’s be honest, is an incredibly clunky way of describing what is ultimately cyber-sexual assault. A survivor of cyber-sexual assault did not provide specific consent for their image to be shared with others. The perpetrator simply treated their consent as transferable to any other use, any other disclosure.

And as I’m sure some other speakers will be sharing with you, the results of this are devastating. Women (and it does mostly happen to women, though men are not immune), well, their lives are destroyed. The images follow them into their job interviews and on their first dates and to the Laundromat. In some cases the perpetrator of the cyber-sexual assault incites violence or stalking against the survivor, publishing their personal information and the dates and times of their professional engagements, encouraging their “fans” to make an appearance.

In any case, the assault constricts the survivor’s ability to live life normally and comfortably, because they are constantly living with the idea that the people they encounter may know intimate things about them that they didn’t consent to share. Even if the survivor knows they did nothing wrong, they must still deal with the judgments, misperceptions and intrusions of others. So for many survivors, their ability to move freely, safely and happily in this world is limited.

I’m fortunate to not yet have been attacked and tormented in this way, but I could be. It’s common for authorities and the media to malign people who send so-called “sexts” as teenagers with poor judgment and impulse control, but that doesn’t line up with reality. According to a Harris poll in 2012, a full 40% of people who send these images are in the 18-34 age range, and 20% of all adults sext (a Macafee survey puts that number closer to 50%). And I’m willing to bet a lot more than 50% of us have trusted a romantic or sexual partner only to learn later that our trust was misplaced. Cyber-sexual assault can and does happen to a lot of us.

When Rehtaeh Parsons died by suicide after months and months of torment from her peers and indifference from authorities following her own sexual assault, first in the flesh, then online, I heard Prime Minister Stephen Harper say that “we’ve got to stop just using the term ‘bullying’ to describe things like this. What we are dealing with in some of these circumstances is simply criminal activity”. At the time I was already a vocal advocate for legislation to tackle cyber-sexual assault, and was accustomed to hearing political and legal decision-makers blame the victim, so I was cautiously optimistic at Prime Minister Harper’s remarks.

Then I realized, as many Canadians realized, that most of Bill C-13 is not really about what happened to Rehtaeh Parsons. Buried within C-13 is a set of decent Criminal Code amendments to tackle cyber-sexual assault. Though I see some minor issues with those amendments that I may refer to in the Q&A, the base for good cyber-sexual assault legislation is there in Bill C-13. But you have to dig pretty hard to find it, amid the many other sweeping amendments that more closely resemble the lawful access provisions found in Bill C-30 back in 2012 – you know, the time when Canadians were told that opposition to the bill was tantamount to support for child pornographers.

While some of the more egregious elements of the former Bill C-30 have been removed from this latest incarnation, it still significantly expands the state’s capacity for surveilling Canadians without the pesky oversight of our court system. One of the most troubling provisions in Bill C-30 was that it mandated the disclosure of user information to police without a search warrant. The newly designed provision in Bill C-13 very cleverly softens this, instead stating that police can request information, and the person or organization to whom they direct their request can voluntarily comply. However, the very next provision in Bill C-13 removes all civil and criminal liability for anyone who discloses another person’s information to police upon request.

This granting of immunity removes much of the incentive for an internet service provider to deny the request. As law enforcement officers and prominent figures of power and authority in our lives, it is also debatable the extent to which a person might feel compelled to provide the information to a police officer, even if technically they are “volunteering” to do so. In the last week, a steady stream of damning media reports have indicated that the practice of voluntarily disclosing user information to police is already in full swing amongst Canadian telecommunications companies, with the state making over a million requests for user information in the course of a year. All without warrants – i.e. without due process. All, quite obviously, without the user’s consent.

Maybe most of Bill C-13 isn’t about cyber-sexual assault, but it violates the same privacy principle of freely given and specific consent. Most of us do not and would not give free and specific consent for the state to access any and potentially all of our data by way of our internet service providers if we had any meaningful choice in the matter. The consent we give is to our internet service providers, and if the police want our information because they suspect we are engaged in criminal activity, well, most of us would assume that’s what search warrants are for. Bill C-13 enshrines the idea of transferable consent in law, immunizing anyone who shares our information and violates our privacy without adequate legal justification for doing so.

While obviously different in many ways, the limitations on personal freedom imposed by Bill C-13 bear some striking similarities to those imposed by cyber-sexual assault. The state could be following us into our job interviews, on our first dates, to the Laundromat. The Bill’s provisions will restrict Canadians’ abilities to live life normally and comfortably, because they are constantly living with the idea that the state may know intimate things about them that they didn’t consent to share. Even if they know they have done nothing wrong or illegal, they must still deal with the judgments, misperceptions and intrusions of the state. So for many Canadians, if Bill C-13 passes, our abilities to move freely, safely and happily in this world will be limited.

That’s why it pains me to say, after a year of arguing for legislation that criminalizes cyber-sexual assault, that I cannot support this legislation as written. I cannot trade one set of civil rights for another. We should separate the components of Bill C-13 that deal directly with cyber-sexual assault from those that do not, and debate them as different pieces of legislation. Not only would this be in the best interest of Canadians, but it would do greater justice to survivors of cyber-sexual assault than amalgamating their cause with another one that serves the state’s pursuit of power more than it serves Canadians.

4 thoughts on “Transferable consent: On Bill C-13, surveillance and cyber-sexual assault

  1. Right on! How was the Q&A? When I spoke to the Status of Women Ctte on eating disorders, it was very much not a partisan issue, so the questions were fairly straightforward from everyone. Interested what it was like on this issue.

    Thanks for sharing your notes with us and with the committee – I hope they take them to heart.

  2. Gender Focus | Join Feminists Taking a Stand Against “Cyberbullying Bill” C-13

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