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Bill C-58 Widens Definition of Internet Service Provider in Fight against Child Pornography

November 30, 2009
man browsing internet.

Should our online activities be watched, and should ISP's be blamed? Creative Commons photograph courtesy Flickr user Thomas Hawk.

Canada has tabled Bill C-58, a new law making it necessary for ISPs to notify anyone suspected of trafficking, acquiring or possessing child pornography, and to preserve records of their Internet activity for 21 days afterwards. If the Bill is enacted, ISPs who do not comply could face fines up to $100,000. The law is intended to make it easier for police to catch people who possess and traffic in exploitative content.

Since the law has been tabled, some online commentary has claimed that this is just a backdoor way for the authorities to get ISPs to spy on the public. Others assert that this is merely unenforceable feel-good legislation that won’t contribute toward its stated goals. Will this law breach peoples’ privacy, will it fulfill its stated purpose, or will it be ineffective, the Internet version of the long-gun registry?

It is widely report that most major ISPs are already notifying authorities of the reports to the police, so I am not sure if this law accomplishes anything that is not already being done. That said, it seems reasonable to have laws that establish a code of conduct on the Internet that concurs with the rest of the Criminal Code.

I’ll address the privacy concerns first, as they are the easiest to allay. Alarmists have said that this law will require he ISPs to spy on the public to determine what content they are accessing. The legislation only states that ISPs must report evidence once it has become clear that a transgression has been made. Providers would not have to go in search of offensive content, but they are only required to act when they are alerted to offensive content. So while ISPs take a more active role in investigations when there are reasonable grounds to do so, it does not seem like they are being required to spy. Privacy is continuously being degraded as our information becomes more public on the ‘Net, but this law does not appear actively contribute toward that.

As for ineffectiveness, Michael Geist has indicated that the proposal would be ineffectual because it establishes a reporting system that works within non-anonymous networks, where the real problem lies within “newsgroups, private groups, and other private spaces that fall largely outside the potential for tips envisioned by Bill C-58.” The definition of ISPs in the proposed Act applies to “suppliers of Internet services to the public, e.g. Internet access, electronic mail, content hosting and social networking sites.” While anonymous services like The Freenet Project may be able to facilitate greater anonymity, the electronic mail and social networking inclusion probably does cover newsgroups.

While this law seems well thought out, there should be greater clarity on at least one aspect of the definition of an ISP, specifically what is meant by a “supplier of Internet services.” Could this include a wi-fi café, a grassroots civic network project or an unsecured router? Could these connectivity sources held liable if someone uses them to anonymously access illegal content?

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3 Comments leave one →
  1. nick permalink
    December 5, 2009 2:30 pm

    Hi Cor,

    The Bill provides the existing definition in the Criminal Code (http://www.efc.ca/pages/law/cc/cc.163.1.html).

    As you say, there will always be some ambiguities, and law has always been about well-argued interpretations, but section 163.1 (1) seems plainly worded to me. I think there is enough in there that everybody understands it is not about toddlers having bath time.

    As for what constitutes legitimate art, it does seem to be up to interpretation, because “legitimate” is such a subjective descriptor. I have my opinion, but I don’t know why Nabakov’s Lolita seems to enjoy greater social acceptance than an exploitative medium such as Hentai. Both depict underage sex, but one is seen as racy, groundbreaking literature while the other is smut. My inclination is that the former seems to be more of a philosophical discussion while the latter is gratuitous exploitation. Perhaps it is critical analysis that gives something legitimacy.

    Where it gets really complicated is in individual cases. There have been cases in Forida, Indiana, Ohio and Pennsylvania where an adolescents have faced charges and even been put on sex offender registries for “Sexting” intimate images of themselves to other friends. Law enforcement will probably remain tight in those cases to prevent exploiters from gaming young people into sharing exploitative images of themselves.

    Though any law can be used in unforeseen ways, I think C-58 represents an evolution to a shocking phenomenon seen in contemporary forensic law enforcement, where pedophile user groups facilitate sharing of tips and techniques on how to be exploitative.

    Though this is obvious, I feel compelled to say that these are just my opinions and should not be construed as legal counsel.

    • corsullivan permalink*
      December 6, 2009 11:10 am

      Thanks for providing that link. I’m glad there is indeed a clear definition of child pornography, although to me it seems unnecessary to ban drawings, paintings, videos of young-looking adults, and other “visual representations” that aren’t created by actually involving a minor in sexual activity. Surely the harm in child pornography lies in the fact that participating in sex acts, on camera or off, can be dangerous to a young person’s mental (and sometimes physical) health.

      As for “sexting”, I think prosecuting minors for sharing pornographic images of themselves with a few friends is ridiculous. I don’t much care how the Americans handle this issue, but north of the border we should recognise that, well, adolescents like to explore. The problem of adults talking vulnerable minors into providing images, which I agree is a real concern, would be better solved by making it illegal to request pornographic photos from an underage person. In any case, it looks to me as though a nude photo that didn’t depict sexual activity or focus on naughty bits wouldn’t fall under the definition of child pornography given in section 163.1 (1) anyway. Which is probably as it should be.

  2. corsullivan permalink*
    December 1, 2009 11:13 am

    Speaking of greater clarity, is there a reasonably clear-cut definition of child pornography that ISPs will be able to refer to? Given the hysteria over this issue that exists in Canada (and many other countries) at the moment, it seems possible that this law could have a chilling effect on legitimate artistic expression, not to mention discouraging people from sharing perfectly innocent family photos of their bare-bottomed toddlers. Of course it will never be possible to completely eliminate ambiguities, but some plainly worded guidelines would probably make life easier for everyone.

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