“Sextortion” and the Protection of Privacy

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The recent Supreme Court of Canada decisions in R v Jarvis and Douez v Facebook, Inc. demonstrate the changing landscape of privacy – a “quasi-constitutional right” according to the majority in Douez – in the digital age. When nearly everyone around us has a phone capable of recording high-definition video, security cameras loom above like eyed canopies, and devices like Amazon Echo or Google Home merely add an all-too-friendly AI facade to Orwell’s home surveillance nightmare in 1984, where can we reasonably expect to have privacy? Jarvis, fortunately, tells parents that their children are entitled to privacy in the halls of the educational institutions their tax dollars fund, while Douez ensured that multinational corporations would be liable under privacy-related torts in Canadian provinces. The CCLA itself is expressly concerned with privacy rights, and for good reason: privacy is a crucial part of human nature, and it ought to be jealously guarded against infringement both domestic and foreign, both private and public.

The RCMP’s Whitehorse office saw two reports of what is called “sextortion” reported recently. Without delving into too many lurid details, “sextortion” occurs when explicit content portraying the victim in “intimate” scenarios is held at ransom by the perpetrator, with the threat of it being released to the wildlands of the internet and seen by friends, family, and peers being used to extort cash from the victim. If that isn’t bad enough, the RCMP has reported that one of these cases involved the use of video editing software to superimpose the victim’s face into explicit content which had nothing to do with them.

Given that Canada has laws against the publishing or distribution “intimate image[s] without consent” (Section 162.1 of the Criminal Code), the cowardly and repugnant actions of the perpetrators in the two Whitehorse “sextortion” cases already fall well outside the bounds of the law, let alone morality. The violation of our privacy by private actors is protected by criminal sanction (no more than five years imprisonment), but irreparable damage is done by the time the perpetrator is convicted. Parents scarred, reputations destroyed, privacy truly violated; the consequences are far-reaching and catastrophic. For the perpetrators, the threat of years in prison was evidently not enough of a deterrent. The question remains of what is to be done.

The official answer from the Whitehorse RCMP is to secure your social media profiles, accept friend requests from only those you know, and “carefully consider” who you send explicit photos and videos of yourself to. Better advice is to never send such pictures to anyone, regardless of your relationship status. For those who find themselves in the horrific scenario of “sextortion,” the Whitehorse RCMP recommends immediately contacting the local police along with the Canadian Anti-fraud Centre. Once again, at this dreadful point the calls to the police and bureaucracy will likely be too little, too late.

So, we have a “quasi-constitutional” right to privacy with regards to the government, along with criminal and tort law sanctions with regards to privacy violations by non-government actors. What is missing from this tapestry is the citizenry itself. To properly understand our freedoms is to respect their fragility and act accordingly. This involves first the recognition that our civil liberties are not mere protections from violations, but encouragements to act. The Supreme Court of Canada provides guidance to this effect in R v Butler:

The values which underlie the protection of freedom of expression relate to the search for truth, participation in the political process, and individual self‑fulfilment.

Nowhere here is the “point” of freedom of expression perceived as a mere lack of restrictions, but rather the protection of the ability to do the above three good things. To cultivate and better protect our right to privacy, we must examine it in the same way; to grow prosperously, a plant must be cared for and nourished, not just protected from pests and the elements. I will hasten to add that, both above and in what follows, I am not “blaming the victims” here; they were subject to criminal actions and it is my hope that the cowardly perpetrators face justice in a Canadian courtroom.

What values underlie the protection of privacy? In my estimation, they are trust, respect, and the freedom to associate (and not associate) as we please. We cannot act however we please, throwing consequences to wind, and expect that, when the dust settles, the state will protect us. To do so is anathema to civil liberties, and to make oneself a subject instead of a citizen. The state respects our privacy because we respect our privacy – not the other way around. To respect our privacy, we must cherish and cultivate it so that we may value it highly. To value privacy highly, we must put it in service of good and virtuous ends, as to never take it for granted and appreciate it fully. This method of understanding can be applied to each of our civil liberties, and it should be. This way, the CCLA and other similar organizations can address the legal issues surrounding civil liberties while the Canadian everyman and everywoman can give them their beating heart and continued vitality. It is, in my view, a return to first principles instead of the development of new ones that will best serve to protect the privacy of Canadians in the digital age.

This blog post was written by a CCLA-PBSC Rights Watch student.  Views expressed do not necessarily reflect the views of the CCLA or PBSC.