Canadian Lawyer - sample

w w w . c a n a d i a n l a w y e r m a g . c o m M A R C H 2 0 1 9 31 potential misinformation about the voting process such as directing people to the wrong polling station or telling people the vote has been cancelled. Côté's role is to detect attempts to disrupt the election or break the law, investigate what happened and prosecute offenders. Both are working with other government bodies including the RCMP and spy agencies such as the Canadian Security Intelligence Service and Canada's electronic spy agency, the Communications Security Establishment. For example, Perrault worked with the CSE and others to improve the security of Elections Canada's own IT system to guard against any attempts to hack into or compromise it. Côté has been hiring people such as former police officers with skills such as monitoring social media for disruption and fake news or investigating online crimes. The departments and agencies are also looking at possible scenarios and working out in advance what role each govern- ment body would play. In late January, the government announced it was set- ting up a Security and Intelligence Threats to Elections Task Force including CSIS, the RCMP, the CSE and Global Affairs Canada to "prevent covert, clandestine or criminal activities from influencing or interfering with the electoral process in Canada." It has also set up a Critical Election Incident Public Pro- tocol to address any serious incidents that might take place during the election. If an incident is detected, it will be flagged to a panel of senior public servants including the clerk of the privy council, the national security and intelligence advisor and the deputy justice. They will then decide whether the incident is important enough to inform political parties and Canadians. Meanwhile, Côté and Perrault have reached out to election officials in provinces such as Quebec and Ontario, which have recently held elections, to see if there was any indication of attempted disruption. While some tweets provided erroneous information about voting in the Quebec election, it did not appear to be part of an organized attack. Perrault plans an online repository of Elections Canada's official social media posts to allow Canadians to double check if a post really did come from his office. Perrault and Côté have also begun working with various social media companies such as Facebook, Twitter, Microsoft and Google. For example, if an attack occurs, Côté wants to know in advance who to contact and what they will need to allow him to get evidence without having to resort to the time- consuming mutual legal assistance treaty process, which can take months. "One of the main difficulties is if we decide to launch a prosecution, obviously, we need solid evidence that some- body has committed a crime," explains Côté. "The solid evidence when you're talking about the use of social media or perhaps misuse of social media, the kind of evidence that we need to go to a court and get the judge to say 'Yes you've made your case [and they are] proven guilty beyond a reasonable doubt.' That kind of evidence will often be in the cloud or outside of Canadian jurisdiction. Maybe in Silicon Valley. Maybe an island. Maybe somewhere else." While each of the companies has Canadian subsidiaries that could be ordered by a Canadian judge to co-operate, there are questions about just how far a Canadian court can go in enforcing orders beyond Canada's borders, he says. Investigating and prosecuting the architects of any foreign attempts to disrupt the election will present challenges, Côté concedes. "Finding the facts and getting the truth when you're talk- ing about people outside Canada, maybe people living in countries that are not necessarily the same, [with] the same kind of regime that we have and may not have the same inter- est as we would have, it becomes very difficult. "Young people in St. Petersburg, for example. Try to bring them to justice. It's going to be quite something. And, so, you have to talk to others and see what we can do here and try to help others who may have a role to play in various ways." Côté has begun proactively reaching out to election offi- cials in other countries to compare notes and find out what is going on beyond the headlines. "It's only if you develop these personal relationships with trust that you can get access to that kind of information. And up to now, we have not really been doing that." "So that's something that we will work hard developing." Bill C-76 will give them new tools to guard Canada's next election against disruption, such as making it illegal to try to hack into a computer system to affect an election or giving the commissioner the power to obtain a court order compelling potential witnesses to answer questions. Perrault says he would have liked the legislation to also address the databases political parties have built up over the years. While the law calls for parties to have privacy policies, it does not require them to divulge the information they have collected. Currently, they are exempt from Canada's privacy laws. "I think Canadians should have the right individually to call parties and say, 'What do you have on me. . . . I think Canadians should be able to say, 'Please remove that informa- tion or please correct that information.'" Barojan says Canada may want to consider laws related to social media. "One thing that should probably be addressed by lawyers is policy-making and legislation that would make social media services less vulnerable to these actors. But I honestly don't have an answer to that because I don't think there's a good example of legislation thus far that has proven that it can suc- cessfully defend our new media from being exploited by these foreign actors or domestic actors for that matter." In the end, Perrault concedes that it is difficult to know what kinds of challenges he and his team will encounter. "We know that we will face issues that we haven't seen and [for which] we haven't planned. But that's true at every election."

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