Bill C-13, the Lawful Access Legislation, formally known as the Protecting Canadians from Online Crime Act, received Royal Assent on December 9, 2014 and will come into effect on March 9, 2015.
The legislation deals with several matters relating to cyber bullying and the investigation of terrorism activities and enhances police access to information held by telecommunications facilities and services.
The legislation aims to deal with the distribution of “intimate images”.
- An “intimate image” is defined as, “a visual recording of a person made by any means, including a photographic, film or video recording, (a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity; in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and (c) in respect of which the person depicted regains a reasonable expectation of privacy at the time the offence is committed.”
- When the legislation comes into effect, it will be an offence to knowingly publish, distribute, transmit, sell, make available or advertise an intimate image of a person, knowing the person has not given their consent; or being reckless as to whether or not that person gave their consent;
- There are also enhances warrant and seizure powers. A judge will be able to issue a warrant authorizing the seizure of copies of an intimate image” as well as requiring the custodian of a computer system on which an intimate image is stored to provide an electronic copy to the court; order the deletion of an intimate image and ensure that the image is no longer stored on any device or made available;
- A judge may also issue a warrant, on reasonable grounds to believe that an offence has been or will be committed authorizing a peace officer to:
- Obtain tracking data by means of a tracking device for: (a) the location or movement of a thing, including a vehicle; or (b) an individual’s movement, by identifying the location of a thing that is usually carried or worn by the individual;
- Obtain transmission data by means of a transmission data recorder; or
- Covertly install, activate, use, maintain, monitor and remove the tracking device; and transmission data recorder.
There are also potentially onerous new obligations imposed on the providers of telecommunications facilities and services
- Judges may issue productions orders for the production of any document in their possession or control, including electronic documents
- Judges may order the production of a document containing transmission data, tracking data and financial data regarding the use of devices and about customers
There are also records retention obligations that arise when a peace officer makes a demand requiring a person to preserve computer data. Such a demand may be made if the peace officer has reasonable grounds to suspect that an offence has or will be committed