In the wake of the Rehtaeh Parson suicide, kudos to the Canadian Government in committing to new legislation that will introduce sanctions on cyber bullying. Love or hate the Harper Government (and I am much closer to the latter than the former), you have to give them credit for taking swift action when action is necessary. But, as is typical of the Harper Government, there is more to this than meets the eye.
For those not familiar, Rehtaeh Parsons committed suicide after being systematically bullied online by classmates and peers who posted videos of her being gang raped or having drunken group sex. The initial humiliation led her family to move and change schools, but the video and notoriety followed her to her new school. The constant bullying and attention eventually led her to kill herself.
Why is cyber bullying like this so difficult to address? The advent of the internet and social media, as wonderful as it is, creates many challenges for government. The Criminal Code is, implicitly, built on a structure of social interaction that is person to person, not everyone to everyone. There are criminal sanctions against physical assault, uttering threats toward someone, etc. These crimes all assume person to person interaction. The Criminal Code is very ill equipped to deal with those who just put damaging stuff ‘out there’. And this is what happened with Rehtaeh – harmful, malicious, cruel stuff was put on the internet and the snowball rolled and trampled her.
So what does government do? Government has two challenges here.
First, governments are always slow to respond to change – and the internet and social media have changed society very quickly. The impacts of the change are pervasive and government is having a difficult time keeping pace with all of the legal and programmatic changes needed to respond to this changing world.
Second, specific to cyber bullying, government has to be careful not to over-do the solution, as it did with terrorism. We are now seeing that the government’s “legitimate and necessary” response to terrorism was an overreach. In the interest of protecting us from terrorism (legitimate) they appear to have completely trampled our rights to privacy in ways that are arbitrary and unnecessary. We are now seeing almost daily revelation of the unjustified intrusions government and security agencies have made into people’s lives – pervasive phone tapping, surveillance, and internet snooping.
The Canadian Government is now trying to strike the right balance. Harper is making clear that cyber bullying will be treated as a crime and he is putting in place tough penalties for those who do it. This is necessary and good. Congratulations.
But, as his predecessors did on terrorism, he is overreaching. The legislation is full of new powers that allow government to access information about what individuals are doing on the internet. And, consistent with a trend started during thr war on terror, they are significantly relaxing the due process needed for law enforcement agencies to get access to this information.
There is a very serious ‘hidden agenda’ at play here. Conservative governments (and some liberal ones) are rewriting the basic legal requirement that law enforcement agencies should need ‘probable cause’ or some other reasonable belief that a crime is going to be committed before they interfere with someone’s privacy. Law and order-focused governments think that (i) current due process requirements place too high a bar for law enforcement to meet and (ii) privacy is not that important – people shouldn’t be doing things that they don’t want the government to know about. Balancing the rights of an individual with the rights of the collective and the state is fundamental to a democracy. Due process is the way that we do this. Government should stay out of our private lives unless they have reasonable cause to believe that intrusion is necessary.
Back to Rehtaeh Parson. Tougher penalties for cyber bullying (and committed resources to fighting it) are a step in the right direction. But before we, once again, expand law enforcement powers to access personal information, let’s take a deliberate pause. We can all acknowledge that the nature of crime is changing and that law enforcement officials need new tools and possibly new standards to cope with this. Governments should not be granting these new authorities covertly in legislation under the guise of addressing hot button problems (terrorism, cyber bullying). We need very public and deliberate discussion on what authorities police forces need in this social media age. Harper tends not to be great on public conversations, but on an issue as important as personal liberty, he would be well advised to let down his guard and let it happen.