Let’s talk about… elections? Sure why not.

[/checks date of last post] Oh hello. You probably thought I was dead. I am not! I was celebrating my annual “dark” period where I get writer’s block and / or lazy. But I was recently called out on Twitter for my silence, and I realized my many two fans needed to hear from me. Not only do you get words of wisdom written down, you get words spoken out loud, with me talking out of my ass (my favourite way to speak) in that clip up there. Lemme explain.

A couple of weeks ago I was contacted by a producer of the John Gormley show, hosted by the smiling face you see in the audio clip up there, John Gormley, former MP and king of Saskatchewan radio (his show is on in both Regina and Saskatoon). I was asked to talk about “elections and big tech”, and being the media whore I am, of course I said yes. Sounded like a great topic! What I did not know until about 10 seconds before I went live is that he wanted to talk about a Project Veritas (which I won’t link to, right-wing assholes) video of a Google engineer claiming tech bias against conservative viewpoints (load of crap) in the States. We did finally get to a bit about Canada near the end. Anyway have a listen if you like, you can jump to 3:30 of the clip to avoid John (who was very nice, I should point out) talking about his golf tournament and the green Riders.

POINT IS, in Canada we have a Federal election coming October 21! Woohoo! And I did a crapload of research prior to the interview about election law in Canada (to be prepared!) which pretty much went wasted. There have been developments in the regulation of elections online since the last election. So I thought this would be a good time to have a little primer on regulating Canadian elections online. It’s not as boring as it sounds! Or it may be.

1. The Elections Modernization Act

Last December, right before running off for Christmas, Parliament passed the Elections Modernization Act, which was also called Bill C-76.  Technically it is not a law on its own, it just updated the Canada Elections Act (the “CEA”), the law that governs Federal Elections. It did a bunch of things. The first one we don’t care about was it limited the amount of money political actors could spend in the pre-election period. Whatever. I mean that’s good I suppose but we’re an internet blog here. There is a bunch of stuff about more voting hours, armed forces voting, candidates’ expenses and such and such which I guess is all good, but again, yawn. Let’s get to the good stuff.

No undue influence by foreigners

Hey, this is pretty good. No Russians here! There is now a new section 282.4 of the CEA that prevents foreign individuals, corporations, governments, and political parties from “unduly influenc(ing) an elector to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party”. Of course, the definition of “undue influence” is ridiculously complex, but those foreigners can’t spend any money first and foremost, and most importantly for our purposes, they cannot buy election advertising, which would apply online. Well actually it prohibits people from selling advertising to the foreigners, but the effect should be the same.

The issue here is that the undue influence definition has exceptions for freedom of expression stuff. Like if a foreigner just makes a statement that we should all vote Green, that’s fine! Also, the foreigners can “transmit”, even online, “an editorial, a debate, a speech, an interview, a column, a letter, a commentary or news, regardless of the expense incurred in doing so” as long as those things don’t “unduly influence an elector to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party” (the phrase you already saw). Remember that! I’m calling it the Fake News Loophole.

Online advertising registry

The other big thing from the CEA for our purposes is a new section 325.1. This makes it a requirement for the:

owner or operator of an online platform that sells, directly or indirectly, advertising space to the following persons and groups shall publish on the platform a registry of the persons’ and groups’ partisan advertising messages and election advertising messages

The “following people” include political parties, candidates, political associations and any third parties that spend money on elections (who must register with Elections Canada). The “online platforms” are actually not everyone, but those with a minimum number of visits in a month. This CBC article says that’s probably around the 500 biggest or so (in each English and French). The registry has to include a copy of the ad and the people who authorized its purchase (well, the higher ups in the party, or candidate’s office, or whoever), and it has to be available from the moment the ad goes online and for two years after!

This is a good thing, because anyone will be able to see in the registry who bought a political ad. Transparency is good! It is problematic for many of the tech companies though, because most of the time advertising is bought automatically, so keeping a registry requires changing your ad purchasing procedures. The CBC article I just linked to says Google, LinkedIn, Spotify and Pinterest have all just decided it’s not worth it, and won’t accept political ads. Problem solved! Facebook is doing the registry because it wants that ad revenue dammit! Just buying a political ad on Facebook will be a nightmare though – check out the Canada section on this Facebook page. Twitter is not doing the registry now, but will once the actual campaign starts.

Facebook’s ad registry is already online and active. Do some searching, it’s fun! Like I found out the Liberal Party of Canada spent $100,101 (binary!) on ads with Justin’s face.

Other CEA Updates

There are some other updates made to the CEA from Bill C-76 for online stuff. Something about elections surveys and online addresses being more transparent or something, it’s kind of confusing tbh. There is a big one for privacy, which we’ll get to in the next section. Which begins now!

2. Privacy and Data Protection Law

If you know this site, you know PIPEDA, the Personal Information Protection and Electronic Documents Act which governs the collection, use and disclosure of personal information by private “organizations” in Canada. You know who is not included in that definition of organizations under PIPEDA? Political parties! Yes it’s true, there is no law governing what political parties can do with your personal information. That’s bad! Also, did you know Elections Canada has to turn over the “names, addresses and unique identifier numbers of voters” (aka the “List of Electors”; see this Elections Canada page) to political parties? And then there is no law governing what the parties can do with that info? That’s bad! Oh sure, Elections Canada has guidelines for the use of the List of Electors, but guidelines are not laws.

There is good news however! Bill C-76 introduced a new requirement that all political parties must now have a published policy, available to the public, about their protection of personal information. The policy must include:

  1. a statement indicating the types of personal information that the party collects and how it collects that information,
  2. a statement indicating how the party protects personal information under its control,
  3. a statement indicating how the party uses personal information under its control and under what circumstances that personal information may be sold to any person or entity,
  4. a statement indicating the training concerning the collection and use of personal information to be given to any employee of the party who could have access to personal information under the party’s control,
  5. a statement indicating the party’s practices concerning: (a) the collection and use of personal information created from online activity, and (b) its use of cookies, and
  6. the name and contact information of a person to whom concerns regarding the party’s policy for the protection of personal information can be addressed.

So basically your standard privacy policy that I draft for a living. Here’s the Conservative’s Policy. If I drafted that crap I’d be kicked out of the lawyer fraternity. It is the most generic, basic policy you can do. It covers those 6 points above I guess, but barely. The Liberals’ is a bit better, but not by much. You can just go ahead and trust those parties now!

Oh and what if the parties violate their own policy? I guess nothing, because there is no privacy law that applies to them. Bill C-76 added nothing on that point. Satisfied?

3. Canada’s Anti-Spam Law (CASL) and Politics

No primer  on this topic would be complete without a discussion of CASL and if it applies to political candidates and parties or not. Mostly not. They can send you all the spam they want! That’s because CASL covers “commercial electronic messages”, and “issue” discussions are not really commercial. What if they are asking for money (like every goddamn email they send)? That’s commercial, right? Well yes, but the CASL Regulations have this lovely exception just for that:

Section 6 of the Act [ed. note: CASL] does not apply to a commercial electronic message:
(…)
that is sent by or on behalf of a political party or organization, or a person who is a candidate – as defined in an Act of Parliament or the legislature of a province – for publicly elected office and the message has as its primary purpose soliciting a contribution

Point is, if you have an email address, get ready for some spam, and there is not much you can do about it. Unsubscribe (if you can, it’s not required) for the love of God!

Superterriffic Funtime Happy Hour Analysis Time

So we definitely have some good things here. What’s missing from all this? Well besides the fact that political parties should have oversight when it comes to protecting your personal information, let’s go back to that Fake News Loophole I mentioned.

Recall that anyone (even foreigners) can in fact transmit online a bunch of stuff including news, even if they are paying, as long as those things don’t “unduly influence an elector to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party”. That phrase is important which is why I have quoted it 3 times (so far!). So let’s say some Russian Facebook bots post (presumably fake) news stories about Justin Trudeau’s mistress, or Elizabeth May throwing some empty cans in the garbage instead of the recycling bin. Would those news stories “unduly influence an elector to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party”. Not directly! And the definition of “undue influence” includes the word “directly”, so this would appear to be ok. Here’s a headline for you: Federal election easy prey for social media manipulators, experts warn. Or another more straightforward one: Fake News Threatens Canada’s Federal Election. Exactly.

And it’s not just fake news, it’s “misinformation” generally. Here’s another headline: Facebook refuses to remove false content during Canadian election. Or how about this one: How a misleading YouTube video is stoking fears about Shariah law before the federal election. Bill C-76 did nothing about this, and it looks like online platforms don’t care to either. Even CSIS agrees: Canada’s Spy Agency Says Voters Are Being Targeted By Foreign Influence Campaigns.

Should be a fun election.

Posted in: Internet law basics, Privacy
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7 Responses to Let’s talk about… elections? Sure why not.

  1. steve says:

    There is way to much data here for me to digest. I will take some small bites and there is a chance I might comment when I have finished the whole pie.

  2. steve says:

    The fill in the blank Strong people seem to be skirting the law. Especially with their clever text phising scheme. The Fraser institute seems to be skirting the law. Talk radio seems like a 24/7 commercial for one political party.

    At 11.17 some meat. John Gromly throws Allen under the bus with “skepticism” at the end.
    We all should be skeptical at Mr Epstiens fate.

  3. steve says:

    ‘Res Ipsa Loquitur’

  4. steve says:

    Allen, your an ignorant slut:) SNL ref for you kids.

    My off stated therory is the lawyers tend to believe the law is something paramount. In reality the law is just a beard for rape and pillage.

  5. steve says:

    Okay I exaggerated. The rule of law since Magna Carta has made our current civilization magnificent. It is just when the law cuts too close to the bone of the 1% people commit suicide.

  6. Massimo Orsini says:

    Great interview, and fantastic article. I wanted to the pull up the use of “directly” in section 282.4(2) of the Canada Elections Act for myself – “(2) For the purposes of subsection (1), a person or entity unduly influences an elector to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party, at an election if (a) they knowingly incur any expense to directly promote or oppose a candidate in that election, a registered party that has endorsed a candidate in that election or the leader of such a registered party;”

    This characterization definitely falls prey to the issues you identified. Interesting stuff. (Also, kudos for using “anathema” in your bit – a new one for my vocab!)

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