Open Letter to Canadian MPs: Say No to Bill C-13

When I read West Coast LEAF’s incredible report this summer, #CyberMisogyny: Using and Strengthening Canadian Legal Responses to Gendered Hate and Harassment Online, I felt like I had found an institutional kindred spirit. I knew we agreed that cyber-sexual assault (aka: “revenge porn”) should be criminalized but Bill C-13 was not the way to do it (more on that here and here). I connected with them and we decided to collaborate on additional efforts to stop the bill without throwing out the cyber-sexual assault law baby with the state surveillance bathwater. Today, their legal team sent all MPs this excellent open letter that I’m proud to sign.

On Monday, the House of Commons votes on Bill C-13. If it passes, which it very likely will, it proceeds to the Senate. If you don’t want Bill C-13 to pass, please, take three minutes this weekend to copy and paste this letter into an email, add your name, and send it to your MP. Find your MP’s contact info here. Feel free to leave your name (and if you wish, an affiliation) in the comments if you’d like it to be added to this blog post.

October 17, 2014

An Open Letter to Members of Parliament

On Monday, October 20, you will be asked to vote on Bill C-13: The Protecting Canadians from Online Crime Act. We the undersigned individuals and organizations concerned with women’s equality online call on you to vote against this flawed piece of legislation and demand accountability for cyber-stalkers and harassers that does not unduly infringe privacy rights.

Since Bill C-13 was first tabled in November 2013, dozens of community organizations, internet privacy experts, lawyers, academics, and the country’s Privacy Commissioner have called on the federal government to split the bill into two, and to pass the provisions that address the non-consensual sharing of intimate images and gender-based hate speech online. The provisions expanding warrantless access to internet subscriber information, a practice recently held to be unconstitutional by the Supreme Court of Canada in R v Spencer, must, at the very least, be subjected to additional scrutiny and analysis by constitutional experts.

Addressing the non-consensual distribution of intimate images – a form of sexualized violence targeted mainly at women and girls – is absolutely critical. While a criminal law response is only one part of the solution, the provisions of Bill C-13 making it an offence to share an intimate image of someone without their consent are a critical component of accountability for those who would use the Internet to shame, harass, and intimidate women and girls. Making the non-consensual distribution of intimate images a criminal offence is a much-needed and overdue legal reform. Passage of such a law would send a strong message to would-be abusers and hackers that this behaviour is criminal in nature and will not be ignored. It would also strengthen the legal response to these kinds of cases, and encourage victims to come forward when they have been targeted. Had such targeted legislation been proposed, we would have been pleased to support it, and have little doubt it would have passed easily into law.

Instead, however, Bill C-13 gives police easier access to the metadata that internet service providers keep on their customers, and would give immunity to companies that turn this kind of information over to police without a warrant. As you have heard from countless experts already, including some of the undersigned organizations,1 these provisions are deeply problematic and are likely unconstitutional.

The safety and security of women and girls and their right to express themselves online require that police and the criminal justice system are equipped with the tools they need to fight cyber misogyny and gender-based abuse online. However, Bill C-13 goes too far. As Carol Todd, the mother of a teen girl who was subjected to months of online harassment and sexual extortion before committing suicide as a result, told the parliamentary committee reviewing this bill: “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.”

Please vote against Bill C-13 on Monday, and demand instead a legislative response to cyber misogyny that holds online harassers and abusers accountable, without undue sacrifice of internet users’ privacy rights.

Yours truly,

Action Canada for Population and Development

Amata Transition House

Atira Women’s Resource Society

Battered Women’s Support Services

BC Society of Transition Houses

Canadian Council of Muslim Women

Canadian Federation for Sexual Health

National Association of Women and the Law

Native Women’s Association of Canada

Parent Support Services Society of BC

Salmo Community Resource Services

Second Story Women’s Centre

Vancouver Rape Relief and Women’s Shelter

West Coast Women’s Legal Education and Action Fund

Ann Rauhala, Associate Professor, School of Journalism, Ryerson University

Colleen Westendorf, Former co-organizer for SlutWalk Toronto, feminist, writer

Emma Woolley, columnist on gender & technology with the Globe and Mail

Liane Balaban, founder of Crankytown.com

Jarrah Hodge, Canadian feminist blogger and Editor of Gender-Focus.com

Jennie Faber, Director, Dames Making Games

Jesse Hirsh, President Metaviews.ca

Julie S. Lalonde, advocate for sexual assault survivors

Lyndsay Kirkham, Professor of English, Department of Liberal Arts and Sciences, Humber College

Sarah Ratchford, Lady Business columnist, Vice Canada

Soraya Chemaly, writer and activist

Steph Guthrie, feminist advocate, founder of Women in Toronto Politics

Tracey Young, MSW, RSW, Social work advocate, Catalyst Enterprises BC

Joyce Pielou, BSW, Child and Family Counsellor*

Judy Fleming*

Charan Gill, CEO, Progressive Intercultural Community Services (PICS)*

Alison Mills, feminist activist*

Sarah Hossack-Redden*

Ramona Pringle, digital producer*

*Signed on after letter was sent to MPs and published online.

1 See e.g. West Coast LEAF, #CyberMisogyny: Using and Strengthening Canadian Legal Responses to Gendered Hate and Harassment Online (June 2014), online; and West Coast LEAF’s submission to the House Standing Committee on Justice and Human Rights on Bill C-13 (May 2014) online.

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.

Why the cyber-bullying bill is a lie

I’ve been slacking off on the blog this year, gang. Ever since December of last year, I’ve been meaning to blog my thoughts about Bill C-13, which the Canadian government has dubbed the “Cyber-bullying Bill”.

Chances are if you follow this blog, you know that I care a lot about the issue of revenge porn (i.e. sharing intimate images of somebody without their consent). Late last year, after an opposition MP introduced a private members bill to prohibit revenge porn, our Conservative government introduced their own. It is very likely this legislation will pass.

Since I’ve been arguing for a year that we need criminal legislation to address this issue, you’d think I would be happy about this development. I am not. Find out why by watching this episode of CANADALAND with Jesse Brown, in which I lay out the issues with the so-called “Cyber-bullying Bill,” Bill C-13. SPOILER ALERT: they should really be calling it the Surveillance Bill.

Is this justice for Rehtaeh?

Last week we saw major developments in Canada’s ongoing response to the death of Halifax teenager Rehtaeh Parsons: two men were charged with making and/or distributing child pornography (of Rehtaeh), and a new piece of civil legislation was introduced to address “cyber-bullying”. To be honest, I’m not entirely sure how I feel about either one of these developments.

Firstly, I despise the term “cyber-bullying” and would like to kill it with fire. It is so conceptually broad as to be meaningless, it infantilizes behaviour that adults are just as prone to as kids are, and it depoliticizes social aggressions that are often quite political indeed (think sexist harassment like slut-shaming, harassment of gay or gender non-conforming people, or harassment of low-income kids for things like wearing hand-me-downs). I agree with Jesse Brown, who would “rather have laws against specific crimes, rather than against vast swaths of vaguely defined human behaviour”.

Secondly, I have a very basic problem with civil legislation as a response to revenge porn or online harassment: it costs money to sue someone. Sure, you might find a lawyer who’ll take your case pro-bono, but the likelihood of incurring high costs means that only those who can afford justice really have access to it. Our criminal justice system is already deplorably selective about who can access justice (see, for example, the astronomical overrepresentation of indigenous and Black people in Canadian prisons), but at least if you’ve been the victim of a crime, you don’t pay money for your legal representation. This is one reason why I’m a bigger fan of a potential Criminal Code amendment (proposed by Dartmouth NDP Member of Parliament Robert Chisholm) than I am of dealing with the problem in civil court.

This proposed legislation would make it a crime to share intimate images without the subject’s consent. The legislation needs some work (in my humble, non-legal-expert opinion), as it currently places the burden of proof on the accused. If the accused cannot furnish evidence that they obtained consent from the subject, their intent is automatically deemed malicious and guilt is assumed. In past posts I have argued for just this kind of legislation, and there is a certain beauty to its open-and-shut-ness, in that it would circumvent all of the gendered character judgments and “he said, she said” (emphasis on the “he said”) that influence court decisions about sexually-charged crimes. But at the end of the day, I can’t advocate for legislation that merely circumvents the biases and bigotry of our criminal justice system (you know, the same ones that pervade our broader culture) at the expense of the rights of the accused. We need to tackle those biases themselves, not find ways to sidestep them.

This brings me to my ambivalence about the arrests. While Rehtaeh was still alive, she and her family sought justice by attempting to press charges against Rehtaeh’s alleged rapists for sexual assault and child pornography. The RCMP’s re-opened investigation did not result in sexual assault charges. They did, however, charge the alleged rapists with making and distributing sexually explicit images of Rehtaeh during the incident. The RCMP’s decision to press charges on one crime and not the other suggests that they felt the evidence was too murky to conclude that Rehtaeh did not consent. Meanwhile, Rehtaeh was allegedly vomiting out a window while one of her attackers raped her, and our current laws indicate that a person cannot legally provide consent while extremely intoxicated.

That is rage-inducing, but it is also indicative of the culture in which our criminal justice system is embedded and serves to uphold. We have national columnists (to whom I refuse to link) slut-shaming her in death, if that’s any indication of how our culture tends to understand consent when a survivor was intoxicated at the time of the attack. Why would our justice system be any different, even if our laws explicitly spell things out differently (*sob*)?

So I can, quite frankly, understand why the Parsons family wanted to use any tool available to them in our broken system to try and find their own version of justice – including charging the attackers with child pornography, despite the fact that her non-consent (not her nudity or sexuality writ large) was the crux of the violation. That said, I think it sets a precedent that may create problems down the road. For example, imagine a minor’s consensual sexting is discovered by a horrified parent, who sees child pornography charges as a way to punish the kids involved and clamp down on youth sexuality in general. Also, what if Rehtaeh had been 18? Capturing and distributing that photo would have been just as morally abhorrent, just as damaging. This is why I think the legislation proposed by Robert Chisholm fills a necessary gap.

Realtalk though: this legislation wouldn’t be necessary if our culture learned to understand sexually-charged violations in a more equitable and just way. If law enforcement officers, lawyers and judges didn’t build their careers in a culture steeped in sexism, they might quite easily interpret revenge porn as a form of criminal harassment (a law already on the books in Canada). As we saw recently in the case of an appropriately-named former MP’s assistant, Cody Boast, some law enforcement officers and judges already do draw those conclusions. But too many people inside and outside our criminal justice system are quick to blame the subjects of the images for consenting to their capture in the first place. It is this underlying mentality that needs to change. Otherwise we’ll just have another new selectively enforced law on the books.

That’s why I’m glad to see that, despite its shortcomings, the civil legislation in Nova Scotia also includes interventions at the level of the public education system. While those have their own problems (Jesse Brown has some great analysis therein), I appreciate the marriage of legal and educational interventions. To introduce the former without the latter would be putting the cart before the horse. What our education systems really need, though, isn’t a “Cyber SCAN investigation unit” – it’s frank discussion about consent, respect and privacy in sex and relationships (online and offline), and how societal systems of power impact these dynamics on an individual level.

#sheparty is the best party

Sometimes feminists on Twitter use the #sheparty hashtag to host live-chats about a wide variety of topics. Yesterday, @jarrahpenguin (Vancouver) and @OpinionessWorld (Boston) co-hosted a two-hour #sheparty and invited me to be a special guest for the first hour. From 3pm-4pm ET we discussed revenge porn, which anyone who follows my blog knows is an issue of major importance to me. I mean I’ve only written about it, like, 30% of the time.

Our discussion about revenge porn covered legislative responses to the problem (in Nova Scotia and nationally, as well as in New Jersey and Florida), as well as steps that parents and teachers can take to address it with youth. If you’re new to the topic, this discussion was a fantastic introduction. Don’t fret if you missed it, because you can always count on me to Storify these kinds of things for future reference! Here’s a recap of the #sheparty revenge porn discussion. I also encourage you to check out @tootwistedtv‘s Storify of the 4-5pm #sheparty discussion, which focused on feminism and (dis)ability.

Technology, consent and privacy

Nobody (even at their age!) should struggle this much to read a situation.Tonight my fellow faculty member at Academy of the Impossible, Ramona Pringle, hosts an awesome-sounding event (which I sadly cannot attend) called The Connection Paradox: Creating a Social Blueprint. The event’s purpose is to flesh out an idea of how we want to live with technology and with each other. Since I can’t be there, she asked me to send her a few thoughts about the issue, and because of the things I often blog about, my thoughts automatically drifted to gender, privacy and consent as they relate to technology. Here are some of my jottings on the subject.

The dominant fear-mongering rhetoric around privacy and technology has given people an excuse to violate others’ digital privacy in ways they likely know (at least in the back of their minds) are immoral. Because the prevailing wisdom is “nothing is private in digital space”, our culture’s collective response to things like the sharing of intimate images is “well, she shouldn’t have sent him the photo in the first place”. This collective response flies in the face of the distinction between one-to-one and one-to-many communication. If a person chooses to send something via a one-to-one channel (or one-to-a-select-few, such as a group chat with 2 others), the tacit message is that the communication is for this person (or these people) alone. If a communicator wants a thought or image to be widely shared via one-to-many, they will do so themselves. I believe when people distribute intimate images that were texted or emailed to them alone, they know in their hearts that they are hurting and violating the other person, but our collective wisdom justifies their decision to share. That collective wisdom is what needs to change.

I feel this is a manifestation of some people’s belief that technology is an “objective” entity that functions and self-moderates automatically as its own animal, independently of human beliefs, values and behaviour. It strikes me that this is not unlike how people tend to think about the “free market”. I so disgree with this characterization. We are technology – we are the ones who make it, who use it, who decide how it can and should be used (though of course, we aren’t able to predict and control that use absolutely). We can set new and different standards of behaviour and use. IMHO, one of those “new” standards should be what is really a pretty basic/ancient moral code: if someone tells you something privately (especially if aspects of it are sensitive and/or could be harmful to anyone, whether they are involved or not), unless the communicator asks you to share or it’s in the public interest to share, keep it to yourself.

How to implement this standard? I dunno (sorry). It’s a complex cultural issue. In the case of revenge porn I believe the problem is also shrouded in misogynistic ideology that privileges public access to bodies (especially women’s bodies). I do think it would help to start teaching kids about consent as an important subset of how we educate them about privacy in a technology context. This teaching doesn’t have to apply solely to digital violations of a sexual nature (like revenge porn). For example, consider a situation in which a teenager confides to a friend about their crush via one-to-one chat, and the friend posts a Facebook status about it.

Consent should be an integral part of how we educate about privacy, but I think many parents and educators (not to mention the media) would be hesitant to do so. Why? Because it might in some ways qualify or mitigate (and perhaps in some folks’ eyes, undermine) the dominant, hand-wringy messages about BEING CAREFUL WHAT YOU POST because NOTHING IS PRIVATE ANYMORE. But I think it’s necessary. Educating about privacy shouldn’t just be about protecting our own privacy, but also about not violating the privacy of others. And this learning should start early.

How we can stop revenge porn

Today I hosted an event at Academy of the Impossible to discuss how to wipe the heinous phenomenon of “revenge porn” off the face of this green earth. Revenge porn is the colloquial term for when people share nude or sexually explicit photos/video of another person without their consent. I’ve written about revenge porn here, here, here, and here. I encourage you to check out my Storify of our amazing discussion at today’s event.

The event generated a few ideas that are worth exploring, and fast. Why fast? Nova Scotia has assembled a Cybercrime Working Group to put together legislative options by June, for projected implementation in fall 2013. The Nova Scotia Justice Minister wants to implement legislation that could “make circulating an intimate image for a malicious or sexual purpose a crime” or “create a new section of the Criminal Code for distributing intimate images without consent” (two very different outlines, IMHO). We want to have a say in how they put this together.

In terms of influencing legislation, we wanted to ensure consequences for youth offenders are rooted in education and development of healthier social norms regarding sex, consent and accountability. We discussed conducting a series of formal and informal discussions with youth. Discussions would focus on their views on/experiences with revenge porn, the social consequences currently meted out and their feelings about those, what kinds of formal consequences they think are appropriate and why, and what kinds of knowledge would help them navigate these situations. The results of these discussions can be consolidated into a whitepaper and could be shared with the media (with confidentiality of participants protected, of course).

In terms of public education, we want to ensure the Ontario curriculum has opportunities built in for students to explore sexuality in a positive way through the lenses of consent, social media, and the law. If these opportunities don’t currently exist (or are not being implemented in practice), we want to form a coalition of organizations advocating for change.

In terms of public awareness, we want to further discuss the possibility of an ad campaign (e.g. posters, videos, etc.) focused on sharing explicit images without consent. This campaign may be in the spirit of the “Don’t be that guy” campaign to combat sexual violence. The next step for such a thing could be a one-hour brainstorming session wherein we free-associate words and ideas connected to the word “consent.” We’ll also be exploring potential media partners/sponsors.

Wanna get involved in any of that? Head over to “Contact” and get in touch so I can put you on the circulation list for updates and collaborative docs!