Amici Curiae: The Reaction to Bill C-30, “the Digitally Dead,” and the Call for Legalized Pot (Again)

Public Safety Minister Vic Toews recently generated a media frenzy when he introduced a controversial new bill that proposed to provide police departments with the ability to access personal information about Canadian Internet users without a warrant. While the proposed legislation is controversial in itself, Toews caused further controversy when he responded to criticisms by Liberal MP Francis Scarpaleggia by stating that “He can either stand with us or with the child pornographers.”

Proposed Internet Security Legislation Generates Public Outcry

Bill C-30, introduced into the House of Commons as the Protecting Children from Internet Predators Act, has already received widespread criticism from Internet activists for providing unprecedented access to the names, addresses, home numbers and Internet Protocol Addresses of Internet users. Internet privacy group OpenMedia.ca responded with a petition that has now been signed by more than 100,000 individuals and hacker group Anonymous joined the chorus of criticism with a video promising to expose Toews for “the hypocrite” he is.

Canada’s privacy commissioners have also gone public with concerns they shared with Toews last year about the fact that the proposed legislation adds “significant new capabilities for investigators to track and search and seize digital information about individuals.”

The public’s heated response clearly caught the Conservative government’s attention as it promptly ordered the bill to be reviewed by a committee before being sent back to the House for a second reading. While this move will mark the first time the Conservative government has had to re-write legislation since it was elected, University of Ottawa law professor Michael Geist noted that the public’s concern should not have come as a surprise. Since 1999, the government has made several attempts to pass new Internet surveillance legislation, none of which have been successful.

The enormous reaction generated to Bill C-30 suggests that Internet users are not willing to compromise their individual privacy in the name of Internet security. While thousands of Canadians appear to have no problem granting Facebook the rights to their account information, when it comes to granting the government sweeping powers over ISP addresses, Internet users suddenly erupt in outrage.

This apparent conundrum demonstrates the immense importance of choice. Although Facebook essentially owns the rights to your witty status updates and embarrassing photos, as a user you choose to give up your control of these assets in exchange for the services provided. In contrast, the proposed legislation offers very little in exchange for the right to access your personal information without a warrant. Toew’s comments about standing either “with or against the child pornographers” were clearly meant to demonize his critics rather than offer a valid reason for supporting his bill. As the public reaction demonstrates, it will take much more than a plea to catch online predators to justify any legislation that imposes on the freedom of Internet users to decide who has access to their private information.

Managing Assets for the “Digitally Dead”

What should happen to your digital property after you die? Should it live on in cyberspace forever, or should your digital assets become part of your estate?

These are interesting legal questions that have caught the attention of lawmakers in the United States. The Uniform Law Commission recently announced that it will conduct a study on fiduciary power and the authority to access digital property after death and a handful of American states have created laws governing digital asset management after death. Nebraska is the latest state to address the issue of digital legacy with a proposed bill that would allow the executor or administrator of an estate “to take control of, conduct, continue, or terminate any accounts of a deceased person on any social networking website, any microblogging or short message service website or any e-mail service websites.”

Facebook’s current policy does not provide loved ones with a deceased user’s login information, but it does allow for an account to be memorialized so that only confirmed friends can view the profile and post messages in remembrance. Verified family members may also request a loved one’s account to be removed from the site.

The issue of who should have access to our digital assets after we die is yet another example of how property rights are continuously evolving to catch up to developments in new technology. However, this matter also raises important questions about the privacy rights of the dead. Do we really want family members reading through our private messages after we’re gone? And what about those photos that we uploaded to our Facebook account but decided to keep private?

In a recent interview on the CBC, it was suggested that there is no difference between our supposedly private online messages and handwritten love letters we might discover amongst our grandparents’ belongings. If a family member has access to everything in our home, then according to this view, they should have access to everything in our digital home as well.

The problem with this view has to do with society’s changing conceptions of privacy. At one time, we may have only kept a handful of memorabilia that we considered to be private, whereas today nearly all of our private communications are stored online. While the question as to who “owns” this material online has yet to be decided, it is likely that many Internet users would be uncomfortable with the idea of granting their family members with unlimited access to their digital life after they pass on.

Ultimately the decision about who has access to your digital property is a personal matter that should be addressed by individuals through their wills. Thus, the evolving nature of digital property rights is an area that estate lawyers should keep pace with in order to ensure their clients’ wishes regarding their digital lives are respected after death.

Former B.C. Attorney-Generals Support Legalizing Weed

In upholding the criminal prohibition on marijuana possession, R v Malmo-Levine, [2003] 3 SCR 571, established that an activity need not cause serious or substantial harm in order to be subject to criminal prohibition. However, what if the prohibition itself causes more harm than good?

That is the stance taken by four former British Columbia attorney-generals who have recently called for the legalization and regulation of marijuana usage in the province. Geoff Plant, Graeme Bowbrick, Ujjal Dosanjh, and Colin Gabelmann, blame marijuana prohibition for the gang-related violence that plagues Vancouver, and believe that the illicit marijuana trade is used to fund organized crime.

The former attorney-generals offer their support to a campaign for legalization (or “taxation and regulation” as it is alternatively termed) that is also backed by the current and several former Vancouver mayors, as well as police officers and B.C. public health officers. In theory, this scheme would operate similarly to the provincial regulation in place to manage alcohol and tobacco consumption.  However, in practice, executing such a scheme may be far more complex. For example, it is unclear the effect that the legalization of marijuana would have on Canada-US relations, as Canada would likely become a black market for marijuana sold to the US, harkening back to the rum-runners of American alcohol prohibition in the 1920s.

The controversy over the legal status of marijuana in Canada goes back at least thirty years with calls for both decriminalization and legalization along the way.

The debate is particularly relevant now: unlike at the time of Malmo-Levine, when there was no minimum sentence for possession, Bill C-10 threatens a mandatory-minimum sentence of six months in jail for anyone who grows five marijuana plants or more.  Whether this serves as a deterrent for the criminal organizations that currently profit from marijuana trafficking or simply results in our prisons being crowded with casual marijuana users remains to be seen.