Dear Canada: Accessing Publicly Available Information on the Internet Is Not a Crime

Canadian authorities should drop charges against a 19-year-old Canadian accused of “unauthorized use of a computer service” for downloading thousands of public records hosted and available to all on a government website. The whole episode is an embarrassing overreach that chills the right of access to public records and threatens important security research.

At the heart of the incident, as reported by CBC news this week, is the Nova Scotian government’s embarrassment over its own failure to protect the sensitive data of 250 people who used the province’s Freedom of Information Act (FOIA) to request their own government files. These documents were hosted on the government web server that also hosted public records containing no personal information. Every request hosted on the server contained very similar URLs, which differed only in a single document ID number at the end of the URL. The teenager took a known ID number, and then, by modifying the URL, retrieved and stored all of the FOIA documents available on the Nova Scotia FOIA website.

Beyond the absurdity of charging someone with downloading public records that were available to anyone with an Internet connection, if anyone is to blame for this mess, it’s Nova Scotia officials. They have both insecurely set up their public records server to permit public access to others’ private information. Officials should accept responsibility for failing to secure such sensitive data rather than ginning up a prosecution. The fact that the government was publishing documents that contained sensitive data in a public website without any passwords or access controls demonstrates their own failure to protect the private information of individuals. Moreover, it does not appear that the site even deployed minimal technical safeguards to exclude widely-known indexing tools such as Google search and the Internet Archive from archiving all the records published on the site, as both appear to have cached some of the documents.

The lack of any technical safeguards shielding the Freedom of Information responses from public access would make it difficult for anyone to know that they were downloading material containing private information, much less provide any indication that such activity was “without authorization” under the criminal statute. According to the report, more than 95% of the 7,000 Freedom of Information responses in question included redactions for any information properly excluded from disclosure under Nova Scotia’s FOI law. Freedom of Information laws are about furthering public transparency, and information released through the FOI process is typically considered to be public to everyone.

But beyond the details of this case, automating access to publicly available freedom of information requests is not conduct that should be criminalized: Canadian law criminalizes unauthorized use of  computer systems, but these provisions are only intended to be applied when the use of the service is both unauthorized and carried out with fraudulent intent. Neither element should be stretched to meet the specifics in this case. The teenager in question believed he was carrying out a research and archiving role, preserving the results of freedom of information requests. And given the setup of the site, he likely wasn’t aware that a few of the documents contained personal information. If true, he would not have had any fraudulent intent.

“The prosecution of this individual highlights a serious problem with Canada’s unauthorized intrusion regime,”  Tamir Israel, Staff Lawyer at CIPPIC, told us. “Even if he is ultimately found innocent, the fact that these provisions are sufficiently ambiguous to lay charges can have a serious chilling effect on innovation, free expression and legitimate security research.”

The deeper problem with this case is that it highlights how concerns about computer crime can lead to absurd prosecutions. The Canadian police are using to prosecute the teen was implemented after Canada sign the Budapest Cybercrime Convention. The convention’s original intent was to punish those who break into protected computers to steal data or cause damage.

Criminalizing access to publicly available data over the Internet twists the Cybercrime Convention’s purpose. Laws that offer the possibility of imposing criminal liability on someone simply for engaging with freely available information on the web pose a continuing threat to the openness and innovation of the Internet. They also threaten legitimate security research. As technology law professor Orin Kerr describes it, publicly posting information on the web and then telling someone they are not authorized to access it is “like publishing a newspaper but then forbidding someone to read it.”

Canada should take the lead from the  United States federal court’s decision in Sandvig v. Sessions, which made clear that using automated tools to access freely available information is not a computer crime. As the court wrote:  

“Scraping is merely a technological advance that makes information collection easier; it is not meaningfully different from using a tape recorder instead of taking written notes, or using the panorama function on a smartphone instead of taking a series of photos from different positions.”

The same is true in the case of the Canadian teen.

We’ve long defended the use of “automated scraping,” which is the process of using web crawlers or bots — applications that run automated tasks over the Internet—to extract content and data from a website. Scraping provides a wide range of valuable tools and services that Internet users, programmers, journalists, and researchers around the world rely on every day to the benefit of the broader public.

The value of automated scraping value goes well beyond curious teenagers seeking access to freedom of information requests. The Internet Archive has long been scraping public portions of the world wide web and preserving them for future researchers. News aggregation tools, including Google’s Crisis Map, which aggregated critical information about the California’s October 2016 wildfires, involve scraping. ProPublica journalists used automated scrapers to investigate Amazon’s algorithm for ranking products by price and uncovered that Amazon’s pricing algorithm was hiding the best deals from many of its customers. The researchers who studied racial discrimination on Airbnb also used bots, and found that distinctively African American names were 16 percent less likely to be accepted relative to identical guests with distinctively white names.

Charging the Canadian teen with a computer crime for what amounts to his scraping publicly available online content has severe consequences for him and the broader public. As a result of the charges against him, the teen is banned from using the Internet and is concerned he may not be able to complete his education.

More broadly, the prosecution is a significant deterrent to anyone who wanted to use common tools such as scraping to collect public government records from websites, as the government’s own failure to adequately protect private information can now be leveraged into criminal charges against journalists, activists, or anyone else seeking to access public records.

Even if the teen is ultimately vindicated in court, this incident calls for a re-examination of Canada’s unauthorized intrusion regime and law enforcement’s use of it. The law was not intended for cases like this, and should never have been raised against an innocent Internet user.