In the fight for free speech, where does Facebook…

Cara Zwibel
Director of Fundamental Freedoms Program
czwibel@ccla.org

 

 

 

 

As an organization with a strong commitment to freedom of expression, CCLA has traditionally focused on prohibitions and restrictions on speech put in place by government or state institutions. We have challenged the breadth of hate speech and child pornography laws, advocated for changes to the law of defamation to help foster free speech, and supported legislation to make it harder to succeed in using our courts to stifle public participation.

But the landscape relevant to protecting free expression has changed dramatically since CCLA’s inception in the 1960s. Today, Canadians don’t only live their lives in Canada – increasingly they live in online spaces that are governed by private (and global) corporations with an enormous amount of power. While those corporations are required to follow local law, they are not bound by the same Charter of Rights and Freedoms that requires that governments limit our rights only insofar as such limits are reasonable and can be justified. Facebook develops its own Community Standards and can then enforce those standards on its platform, and change those standards if and when it sees fit. It has no checks and balances, no separation of powers. But should it? Should we start treating Facebook more like a government? Is it moving in that direction itself?

Whether you think what Facebook does is best characterized as content moderation or simply censorship, it is clear that the social media behemoth is already deep into the business of deciding what kind of expressive content has a place on its platform, and what kind decidedly does not. In effect, this means that Facebook has a great deal of power over online expression – period. Over 2 billion people use the platform worldwide, and for some, there is no meaningful distinction between the internet and Facebook. Recognizing the enormous power the company has over online content, it has proposed the creation of a Facebook “oversight board” to make difficult content decisions. I was invited to participate in a Canadian Roundtable Discussion that the company hosted to discuss this proposal. They are engaged in these discussions worldwide, are soliciting comments from the public through a consultation process, and plan to have the board “up and running” by the end of the year.

The idea behind an oversight board is that the trickiest content decisions would not be left to the company, but instead the subject of a decision by an “independent” body by which Facebook agrees to be “bound”. I am being liberal in my use of quotation marks because the details around the proposal are still very preliminary. There are many challenging questions to address: how would the board be constituted; how would it decide which “cases” to “hear”; what would a “hearing” look like; would the process be adversarial or inquisitorial; how does the use of such a board serve Facebook’s interests; how does it serve those of its users? These are each complex questions with no easy answers. If there is one thing you can say about the proposal to establish an oversight board: it’s ambitious.

I’ll admit that I have not come to a landing on whether an oversight board for Facebook would be a welcome development. Part of me wonders whether global standards of free expression are even feasible given how rooted in local context and cultures expression is – particularly online. Nevertheless, I think experimenting with new governance structures may, at a minimum, create a global discussion about freedom of expression: what it means, its limits, and how it can be fostered. CCLA will definitely be engaged in that discussion, and if you care about free speech, you should be too.

Canada’s Privacy Commissioner’s Office Is Furious, and he’s Deleting…

Brenda McPhail
Director of Privacy, Technology & Surveillance Project
bmcphail@ccla.org

 

 

 

 

A blistering report issued by Canada’s and British Columbia’s Privacy Commissioners accuses Facebook of violating Canadian law following their joint investigation into the Cambridge Analytica scandal—and then refusing to comply with the Commissioner’s recommendations to make sure it doesn’t happen again.

Federal Privacy Commissioner Daniel Therrien states in a press release that Facebook’s “privacy framework was empty, and their vague terms were so elastic that they were not meaningful for privacy protection.”

The report finds that:

  • Facebook’s “superficial and ineffective safeguards and consent mechanisms” allowed third-party apps to inappropriately access information of millions of users;
  • There was a lack of meaningful consent collected from users of the app at the core of the Cambridge Analytica scandal, and from their friends whose information was shared as a result;
  • Facebook did not properly oversee the way apps on its platform complied with privacy requirements;
  • Facebook demonstrated an overall lack of responsibility for personal information under its control.

The Commissioners warn that “there is a high risk that the personal information of Canadians could be used in ways that they do not know or suspect, exposing them to potential harms.”

Both Commissioners are calling for legislative reform, including new powers of enforcement, in light of Facebook’s refusal to accept their findings or implement their recommendations.

It’s yet further evidence that privacy rights cannot be adequately protected through recommendations, voluntary compliance and organizational cooperation—as Facebook has just illustrated, that only works until they change their mind (because they’re not going to change their business model). It’s also worth noting that if Facebook had complied with earlier recommendations from the OPC in 2009, they might have avoided the Cambridge Analytica affair altogether—but they didn’t.

This report, and Facebook’s non-response, highlights the asymmetry of power between data goliaths, our Canadian privacy watchdog agencies, and us, the people of Canada. While Facebook’s CEO, Mark Zuckerberg, has been beating the privacy drum lately in an attempt to win back the trust of Facebook users, when faced with a series of concrete recommendations, Facebook has instead disputed the investigation’s findings and refused to comply. Granted, the recommendations, which included submitting to a voluntary audit of its privacy policies and practices over the next 5 years, were comprehensive and stringent, but surely compliance with privacy law should, in fact, be both of those things?

If governments were waiting for more evidence of the need to update Canada’s privacy laws to reflect the new value of data, the growing power of data collectors and aggregators, and the new risks—to individuals and groups—of ubiquitous, granular data collection, analysis and use, here it is. It’s time for our democratically elected officials to take the risks to their constituents seriously, starting by bringing political parties into a privacy law regime, and continuing with thorough reform of both our federal private and public sector privacy acts.

The next step for the federal Privacy Commissioner will be to take the matter to Federal Court. And for good measure, they’ve put their money where their mouth is in relation to their complaints and have taken down their Facebook page.

Read the full report

CCLA at the Supreme Court: Privacy Lost

Brenda McPhail
Director of Privacy, Technology & Surveillance Project
bmcphail@ccla.org

 

 

 

 

It’s a loss for privacy in a disappointing Supreme Court decision released April 18 in R v Mills. The Court issued four different reasons in this decision, a reflection of the complicated issues at stake in a case that combines a police sting operation, private messaging between an officer posing as a young girl and the accused over an online platform, and the use of screen capture technology to record ongoing electronic conversations, all without judicial warrant.

CCLA intervened in this case to argue that a zone of privacy for electronic conversations is essential in a free and democratic society. People in Canada should be able to conduct private one-on-one conversations, free of state interference. We also sought confirmation from the Court that the finding in R v Marakah that text messages may carry reasonable expectations of privacy also carries over to other forms of electronic conversations, such as the ubiquitous messenger applications that many of us use as an alternative to texting.

On that point, the Court agreed, with the plurality writing that the one-on-one electronic conversations in this case “have no legally significant distinction from text messages.” This confirmation of a technologically neutral approach, that focuses on the private nature of the conversations rather than the platform on which they occur, is a small battle won.

But Justices Abella, Gascon and Brown go on to conclude that the accused’s expectations of privacy in this case were not objectively reasonable, because “adults cannot reasonably expect privacy online with children they do not know.” While s. 8 Charter protection is generally content neutral, the fact that the relationship was engineered by police, and the socially abhorrent nature of child luring, weighed more heavily in the reasons written by Brown J.: “This appeal involves a particular set of circumstances, where the nature of the relationship and the nature of the investigative technique are decisive.”  

Justices Wagner and Karakatsanis presented different reasons for finding no s. 8 breach occurred. They found that when undercover officers are communicating in writing with individuals, there is no search or seizure because the officer is the intended recipient of the messages. Similarly, in written communication, they found that the screen capture of the message did not require judicial authorization because the sender, by engaging in written conversation, must have understood the recipient would have the ability to keep a copy of that conversation.

Only Justice Martin advanced the position that the state surveillance of the private conversation was, in fact, a search that violated s. 8, absent judicial authorization, and further, that the screen capture software did, in fact, constitute an interception within the meaning of the Criminal Code.

The ultimate effect this decision has on police sting operations will be something to watch—will it be applied only to investigations involving sexual predators and children, or will police read it as mitigating the need for judicial authorization more broadly in online sting operations? Will police attempt to extend the reasoning to apply to surveillance of other vulnerable populations, such as racialized persons or groups? The reasons of Wagner C.J. and Karakatsanis J. did speak to narrow that possibility, noting that just because they found s. 8 was not engaged in this case “does not mean that undercover online police operations will never intrude on a reasonable expectation of privacy.”

Section 8 Charter protections require a balance between the public’s interest in being left alone and the government’s interest in law enforcement. But that balancing should occur after, not within, the reasonable expectation of privacy analysis. Justice Martin’s reasons lead ultimately to the same decision as the rest of the bench, with a very different analysis. She states the question to be answered cannot focus solely on adults who communicate online with children for an evil purpose, but must recognize the broader implications (that CCLA similarly identified) that are core to the case, namely, do “members of society have a reasonable expectation that their private, electronic communications will not be acquired by the state at its sole discretion”?

CCLA will continue to advocate for the latter.

We are grateful to our pro bono counsel Frank Addario and James Foy of Addario Law Group LLP for their work on this case.

 

Read the Court’s decision here

Read CCLA’s factum here 

CCLA at the Supreme Court: What happens when the…

Cara Zwibel
Director of Fundamental Freedoms Program
czwibel@ccla.org

 

 

 

 

Sometimes truth really is stranger than fiction. It may be hard to believe, but earlier this week the Supreme Court of Canada – nine of the finest legal minds in the country – spent the morning hearing arguments in a case that involved the arrest of a woman who…wouldn’t hold an escalator handrail (gasp)!

In Kosoian v. STM et al, the Court had to consider whether the police should be liable for their actions in arresting, handcuffing, and searching the backpack of Ms. Kosoian in a Montreal metro station. She was alleged to have committed the infraction of failing to obey a pictogram (the picture that encourages people to hold the escalator handrail) and also ticketed for refusing to provide her name to the police so they could give her a ticket for her deplorable actions. Ms. Kosoian was acquitted of these “charges” and sued the transportation authority, police and the individual officer whose actions were at issue. Both the trial court and Quebec Court of Appeal found that the police were not liable, even though there was agreement that not holding the handrail isn’t actually an infraction at all. In fact, both courts made comments suggesting that Ms. Kosoian was the author of her own misfortune for daring to disobey an officer of the law.

While the facts sound trivial, the legal principles at issue in the case are significant. When does the law require you to provide your name to the police? Can a pictogram form the basis of an offence? What happens when the police arrest you for a non-existent offence? CCLA intervened in this case to argue that an ambiguous pictogram cannot create an offence – this violates the fundamental principle of fair notice of the law. In addition, CCLA said that the police must bear liability when an error has been made in conducting an arrest. Even where a police officer may have received training that led to their error, the costs of that mistake should be borne by the police, not the innocent civilian who is arrested. Finally, CCLA argued that absent a specific legal obligation, individuals do not have to identify themselves to the police. Under a provision of the Quebec Code of penal procedure, CCLA argued that in order for the obligation to identify oneself to kick in, there must be an infraction, there must be reasonable grounds to believe the individual has committed the infraction, and the individual must be informed of the infraction that they are alleged to have committed before being required to provide their identity. These requirements help to mitigate the concern that police may unreasonably force individuals to identify themselves when there is no obligation to do so.

CCLA is grateful to Torys LLP and, in particular, Sylvie Rodrigue, Marie-Eve Gingras, and Emma Loignon-Giroux for acting pro bono for the CCLA in this appeal.