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I'm going to call this meeting to order. That means our friends from the media have to leave with their cameras. Thank you very much.
We're at the Standing Committee on Justice and Human Rights, meeting 30, as of the order of reference of Monday, April 28, 2014, Bill , an act to amend the Criminal Code, the Canada Evidence Act, the Competition Act, and the Mutual Legal Assistance in Criminal Matters Act.
We are televised for the first hour, and we have the pleasure of having witnesses from the Office of the Privacy Commissioner of Canada, Mr. Therrien.
Welcome, Commissioner. You can introduce your guests. You have 10 minutes, and then we'll go to questions and answers.
The floor is yours, sir.
Good morning, members of the committee.
Thank you for your invitation to present our views on Bill.
With me this morning are Patricia Kosseim, Senior General Counsel, and Megan Brady, Legal Counsel.
Today, I will first address the cyberbullying aspect of the bill, and then turn to the elements that introduce new investigative powers, as both aspects implicate privacy.
The Office of the Privacy Commissioner unequivocally welcomes the government taking action to address online bullying and abusive use of intimate personal images. This is a pressing social issue that is of serious concern to Canadians.
It is clear that Internet use has shifted many of our traditional views about privacy. Better education, legal reform and public discussion must all play a part in addressing the problem. We feel that a holistic approach is needed that includes public awareness—such as the government's new Stop Hating Online initiative—as well as a strong emphasis on digital literacy education.
We think it is important that children, parents and teachers all have access to educational resources that help explain online risks, and teach responsible use of technology and ethical behaviour in online interactions.
The government has signaled a commitment to digital literacy as part of its recent Digital Canada 150 strategy, and we would like to see continued dialogue and outreach to youth and educators as part of that effort.
Cyberbullying clearly presents grave risks to individual dignity and privacy for all citizens who use social networks and online communications. We believe the criminalization of non-consensual distribution of intimate images and the extension of existing Criminal Code provisions related to harassing communications sends a clear signal. We also need to ensure that cyberbullying carries serious consequences.
There are still clearly some complex privacy questions attached to many of the proposed measures, particularly those concerning some of the new investigative powers.We agree that the laws need to be modernized, but we have concerns about some of the specific proposals contained in this bill. Given the technical aspects of these amendments, my office has provided you with a written submission outlining these aspects in detail.
Allow me now to summarize our main concerns briefly.
I would begin by reiterating my view that, given the complexity of the issues you have been presented with in the course of your study, I would recommend dividing the bill into its constituent parts.
From a privacy perspective, the offence provisions are largely uncontroversial and could be dealt with quickly by the House of Commons and sent on to the Senate for review. On the other hand, given that sensitive personal information and significant police powers are at play, the lawful access components deserve very close scrutiny and would benefit from a focused and targeted review.
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Our first concern, Mr. Chairman, relates to the issue of thresholds for authorizations. The accessing of data is significantly more intrusive than its preservation. While reasonable suspicion may be an appropriate threshold for preserving data, we believe that Parliament should closely scrutinize the proposed threshold for judicial authorization to access certain data. The divergence from the constitutional default of reasonable and probable grounds requires full explanation and a justification by government, and merits a cautious approach.
There is a wide range of new powers attached to Bill , under which sensitive information would become more accessible to law enforcement and a wide range of other governmental authorities at a lower legal threshold of reasonable suspicion.
Transmission data provide a useful example of how authorities can obtain sensitive records via a reduced legal threshold under the new regime. Reasonable suspicion to access transmission data uses the precedent of the standard currently required to use a dial number recorder, or DNR; however, the information and records comprising “transmission data” as it is defined in the bill can be significantly more revealing than a record of telephone calls.
We believe that suspicion is too low a threshold for such potentially revealing information in a digital era, when every transaction, every message, every online search, and every call or movement leaves a recorded trace. As a result we suggest the bill use the traditional standard of reasonable and probable grounds to believe for the provisions under which access to information would be granted. This is the standard that should hold until a more compelling case for the use of a reduced legal threshold is presented and thoroughly examined.
A second concern is the broad range of authorities that can rely on these powers. The investigative powers and provisions in Bill see both peace officers and public officers at all levels of jurisdiction in Canada broadly empowered with a whole range of new techniques. While many law enforcement and security agencies have robust accountability mechanisms, other government bodies implicated by this definition have no dedicated review and no transparency requirements. We find this to be of particular concern.
Thirdly, there is the key question of legal immunity. Bill contains an amendment specifying that a person or organization enjoys legal immunity should they voluntarily preserve data or provide a document at an investigator's request without court authorization. We are concerned that this broad language could lead to a rise in additional voluntary disclosures and informal requests. This is of particular concern with private sector companies that are otherwise prohibited from disclosing personal information without consent under PIPEDA or substantially similar legislation. In essence, this could amount to permissive access without court approval and oversight.
Ultimately then, we believe Canadians expect that their service providers will keep their information confidential, and that personal information will not be shared with government authorities without their express consent, clear lawful authority, or a warrant.
[Translation]
Finally, there is the question of accountability and transparency mechanisms for new forms of surveillance.
There are no requirements in the bill to report on the extent of the use of any of the new powers. I feel that this is of serious concern, especially given the range of officers who can exercise these powers and the possible effects of extending legal immunity. In many other jurisdictions, ongoing reporting is part of the oversight structure. We believe Canada should have similar ongoing measures for reporting.
Thank you for your attention.
I look forward to any questions committee members may have.
Mr. Commissioner, I think it's been made pretty clear to you that the government has no intent of splitting the bill as you and many other witnesses have suggested, and certainly, that last line of questioning would confirm the government's attitude on that.
You, sir, sent a letter to the committee yesterday and said that if the government isn't inclined to split the bill, that one of the things they should do is to incorporate a statutory review on a regular basis. I know that you've had the opportunity to have a look at the amendment proposed by the Liberal Party that suggests that very thing.
What advice do you have for me or for the committee with respect to that amendment, given that it appears to be entirely consistent with what you wrote to the committee yesterday?
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Thank you for the question.
Yes, there were many witnesses, as has been pointed out, who have testified before the committee. Quite a number of them as well have advocated in favour of the higher threshold. So in fairness, there are competing views here.
One area that I think would benefit from greater light is the viewpoint of expert technologists. Even internally, in our office, we were having discussions right up until this morning about the technological implications of transmission data and how to contain it in the way that is attempted in these amendments, but it is very difficult to contain that in real, concrete terms.
I think this is the kind of study that was being suggested—a more practical, concrete examination of the data. Elements put together in the aggregate over the long term and amassed over aggregate periods of time and volume can reveal much more personal information.
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Thank you very much, Mr. Chair. I also want to thank the commissioner for joining us today.
I just wanted to echo what my colleague said.
It's great that we have had several hours of debate in the House of Commons and in committee. However, I think it's important to mention that most of the experts agreed on one matter. They felt that the study of the bill should have been carried out in a more comprehensive manner when it comes to the provisions on access to information. Unfortunately, we could not examine the provisions of other bills, especially Bill.
Although we have carried out a good study, we could have considered the issue in more depth. We could have taken into account other bills that could have an impact on the application of Bill.
My first question is about your presentation. You talked about a lack of accountability mechanisms. In fact, Bill contains no oversight mechanisms or provisions for notifying individuals whose data has been shared.
For instance, section 184.4 of the Criminal Code was struck down by the Supreme Court, not because those mechanisms made it possible to share information obtained without a warrant through wiretapping, but rather because that section did not provide for any oversight or notification mechanisms. The people who were tapped by police officers were never notified of that fact.
I will make a comparison with section 188, which allows for a quick examination by a judge owing to the urgency of the situation. So the Supreme Court ruled that section 188 was valid, since it included an oversight mechanism.
Could you expand on the requirement, in Bill, to comply with, on the one hand, section 8 of the Canadian Charter or Rights and Freedoms and, on the other hand, the ruling of the Supreme Court that calls for such a mechanism?
We previously heard from Mr. David Butt. He represented the Kids' Internet Safety Alliance. He's a former prosecutor and has argued many cases before the Supreme Court of Canada.
He said a number of things about the bill. He said that we should all ask precisely what pre-existing privacy rights bill takes away, and the answer is, precisely none.
He went on to say that the bill does not expand police powers to obtain information without a prior court order. So any suggestion that Bill authorizes more invasive warrantless cyber-snooping is an urban myth.
Specifically on the point of section 25, he asked whether the police can ask ISPs to provide voluntarily information about the Internet profile. Again, the answer is very little—just a subscriber’s name and address. That is all.
It was his view that this bill, and the provision we're talking about, simply codify section 25 and the case law. Do you agree or disagree with that?
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That's fair enough. So will we all.
Are you familiar with the testimony of Mr. Gilhooly, who testified before the committee a few weeks ago?
Mr. Gilhooly is a former corporate counsel. He was also a victim. I believe he was formerly corporate counsel to a large media company. When I asked him what, without this provision, he would advise, if he were advising his client whether or not they should comply with a police request, his response was that as corporate counsel his job is to protect the client, so he would advise not to disclose.
Just so you know, I too was in that position many times—advising corporate clients—and I can tell you that my instinct would be to do likewise, to not disclose if there were any possibility that the company could be held liable, criminally or civilly.
What is your comment on that?
We did propose an amendment to clause 3 of the bill, which aims to replace lines 20 to 23 of subsection 162.1(1) of the Criminal Code. The amended provision begins as follows: “Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person...”. The rest of the paragraph would be replaced with the following: “with the intent of injuring, embarrassing, intimidating or harassing that person, is guilty”.
The reason for the amendment is very simple. A number of people have talked about this, but the representatives of the Canadian Bar Associations presented the most compelling argument. They talked about the notion covered under clause 3 of Bill , which states the following: “...knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty”.
According to them, it would be preferable to refocus on the notion of mens rea, or criminal intent.
That is more or less what various ministers called for at the federal-provincial-territorial conference. They wanted an offence to be created for the distribution of the image. In some sad events that have taken place in Canada, the image was mainly used to intimidate, harass, harm or embarrass.
I think the legislation would be clearer, and it would be easier for law enforcement officers and crown prosecutors to issue an indictments if clause 3 did not create a legal uncertainty.
Because it seems to me that perhaps some members of committee have in the last number of months forgotten why it is I'm here, I just seek to remind you that this wasn't my idea. This process is not a process I sought. I'm summoned here based on a recommendation and in fact a motion that was passed by this committee, and an identical motion that has occurred in 20 other committees.
I've just run here from the committee that was looking at Bill , where I had to provide clause-by-clause amendments in order to ensure that I not be precluded from the rights that I have on paper in O'Brien and Bosc. But for those motions passed, which I imagine came to us from the PMO, since they were identical in content in 20 different committees.... But for those, I could present my amendments as substantive amendments at report stage. That's why I'm here, and that's why I get to speak to every one of my amendments. I appreciate the opportunity.
I'm very taken with what the Canadian Bar Association has said about the current drafting. That's why my amendment is identical to that of the NDP. It's the language recommended to us. Madam Boivin and I share a number of things. Our birthdays are right next door to each other, and on top of that, we are both lawyers. The advice of the Canadian Bar Association is not something to be dismissed out of hand.
The concept of criminal responsibility involves mens rea. It involves an intent. The way the bill has been drafted it's so broad that in the example used as a hypothetical by the Canadian Bar Association, someone could be found criminally responsible for having lent somebody else their laptop, someone who, in a series of events, opens files and ends up incidentally sharing images with no intent on the part of the person who owns that laptop. The Internet age opens up numerous possibilities for inadvertence—not with negligence and not with intent—so when the term cyberbullying is a very clear term with an intent to hurt others, that has to carry through with intention to the various aspects of criminality. That's why my first amendment, Green Party-1, is an amendment that seeks to ensure we don't inadvertently ensnare completely innocent people in criminal liability.
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I just want to urge the government once again to think about this issue before rejecting this extremely important amendment out of hand.
Victim representatives have appeared before our committee. They said it was extremely important for this part to be adopted, but also for this part to be able to withstand scrutiny in court. The danger we are seeing in this, and we are not just trying to be
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a pain in the butt of the Conservatives. It has been deemed by specialists so floue, so grey, so not clear, and so easy to contour, that I'm afraid all the work the government thinks it's doing on cyberbullying will be completely wiped out, just because of....
As a lawyer, I can see so many ways of getting out of clause 3 of this legislation that it's unreal that the government doesn't take a moment to reflect and realize the importance of maybe addressing the real issue, which is distributing intimate images for the reason of really harassing, intimidating, embarrassing, and annoying. Those are words that say what this says. When I look at the case of Rehtaeh Parsons, and when I see the case of Amanda Todd, I can see that you have no problem seeing exactly that in those cases.
It's a big danger. I think it's a big red light for the government to maybe not be too bullheaded and insist that it has to be their own words or no words at all. Honestly, for all the victims, I think it's something that I truly believe in. If we want to do our work well, at least on that part, we have to make sure that we're not giving ammunition to people to play lawyers in front of the courts.
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Simply to say, Mr. Chair, that the government doesn't support this. We believe the recklessness standard is the appropriate standard.
We heard a number of examples from witnesses, including those who were connected to victims, about the recklessness standard. On behalf of UNICEF, a hypothetical is put forward that a person would loan his friend his laptop computer on which he had stored intimate images of his girlfriend. He would tell that individual, “Don't look at those photos, don't do anything with them,” and then the case that he hypothesized was that the individual who had received the use of the laptop computer would then look at the pictures, contrary to the instructions, and distribute the images. That was the example that UNICEF gave as their concern about how it might ensnare young people.
Frankly, we think that is a very clear example of the kind of thing that we're trying to protect here. Recklessness is a well-established mental state in criminal law. We don't believe it criminalizes careless, inadvertent, or negligent behaviour, and as one of our witnesses said, he holds his 10-year-old son to the recklessness standard on a regular basis and he thinks that's appropriate.
On that basis, Mr. Chair, in order to protect the rights of those whose images are distributed on the Internet, we will not be supporting this amendment.
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What I thought I'd like to do, picking up some of what I'm sure Mr. Dechert would appreciate, is that since PV-3, PV-4, and PV-5 speak to the same problem, I'll speak to it as a policy problem. You can take it from me that amendments PV-3, PV-4, and PV-5 speak to this policy problem. I will attempt not to go over a minute, and I won't try to accumulate it to three minutes. That's my intention.
What we have here again, the problem that we've referred to in the previous two attempts on PV-1, PV-2, and also NDP-1, is that the bill is overly broad. The way it's drafted, it could ensnare activities that are not within the scope of the purpose of the bill. So we don't, for instance, want to criminalize journalists if they are publishing an image that's in the public interest, if it's the kind of normal operation of journalists to publish images of, for instance, public figures, celebrities. That's not cyberbullying. We may have other public policy reasons for why we don't like that behaviour, but that's not the intent of the act.
This was identified by the Canadian Bar Association in their brief, that the way that Bill is currently drafted we could actually create a chill in media that when images are in the public interest they can't be published for fear of cyberbullying. The way in which amendments PV-3, PV-4, and PV-5 are drafted is to ensure that no person shall be convicted of an offence under this section, if they're essentially doing it as part and parcel of what we would consider normal journalism. We may not enjoy seeing those images. Goodness knows, I'd have been happy never to have seen Rob Ford smoking crack in his basement. But that kind of image, not that it was an intimate image.... But you can see the direction of the thought.
We really don't intend under this bill to criminalize journalists, and those amendments fix that.
This amendment deals with the problem that, again, the way in which the bill is drafted fails to take into account the fact that the world of Internet means that some of those people who could be caught up in this bill have no possible way in which they would know of the content. Specifically, Internet service providers could be found culpable under this act when they simply are neutral service providers. They may in fact provide a search engine that indexes content on various websites. They don't know what's on it. They're not existing for the purpose of disseminating intimate images without consent. We think this criminal liability on neutral service providers.... This was certainly the view, I want to emphasize, of the Canadian Bar Association, which believes that this provision is actually so unreasonable that it wouldn't survive a charter challenge or charter scrutiny. You certainly can't find moral culpability or mens rea on the part of Internet service providers who could get caught up under this section.
So my amendment number 6 attempts to deal with that problem by following the advice that the bar association made at page 8 of their brief, that no person who is a provider of telecommunications services, information tools, and so on, shall be convicted of an offence under this section.
The government will not be supporting this amendment. As Ms. May will know, the court can, in making any prohibition order, weigh the individual personal circumstances of the accused as part of the sentencing process. She'll also know that any condition can be subsequently buried at a later date if there are circumstances in which the change would be desirable, to take her point about getting a job or something of that nature.
Typically, I find it kind of ironic looking at this particular amendment, Mr. Chair, because typically the opposition is telling us to grant greater discretion to the court. In this case they're actually asking us to take discretion away from the court.
So, on that basis, Mr. Chair, we will not be supporting this amendment.
This is the same concern. PV-8 ensures that the prohibition may be for any period that is “reasonable”, and then it goes on to itemize them.
Just in response to Bob for a moment, I don't think what was being proposed, or what is being proposed here, reduces the discretion of the court. It is asking the court to make an order in what it views as “reasonable”, and in the previous amendment, “conditions or exemptions that the court considers to be necessary”.
Again, there's a certain amount of judicial discretion, but it's the role of Parliament to give the judiciary guidance in applying this law. I don't think any of us would want somebody who's been found criminally responsible, has been appropriately sentenced, and has served their sentence to be unable to continue to basically rehabilitate themselves and have the opportunity to access such things as jobs through the Internet.
That's why the court, in my amendment, is given the opportunity to consider a prohibition based on what's reasonable under the circumstances.
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Is there any further discussion?
Seeing none, I will call the vote on amendment PV-8.
(Amendment negatived [See Minutes of Proceedings])
The Chair: We're now on amendment NDP-2.
Just so the committee understands, assuming that amendment NDP-2 is moved, that deems PV-9 also moved, because they're absolutely identical. So whatever happens to NDP-2, we don't need to deal with PV-9.
I'll turn the floor over to Madam Boivin, because I'm sure she'd like to speak to her amendment.
Any further discussion on NDP-2? Seeing none, all those in favour?
(Amendment negatived [See Minutes of Proceedings])
The Chair: This means that PV-9 is removed, of course.
There are no more amendments on clause 3 and there were none that carried.
(Clause 3 agreed to on division)
(Clauses 4 to 7 inclusive agreed to on division)
(On clause 8)
The Chair: Now we're at NDP-3.
Madam Boivin, the floor is yours.
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Thank you very much, Mr. Chair. I'm very pleased to be here today.
When I saw Bill , it was interesting to note that clause 12 opened up the hate crime section of the Criminal Code to add additional grounds for prohibited discrimination. It seemed to me that this would be an appropriate place to have an amendment to add “gender identity” to the hate crime section of the Criminal Code.
This is half of my private member's Bill , which passed in the House of Commons more than a year ago and is stuck in the Senate. It's also half of the previous private member's bill, which passed in the previous Parliament. So twice the will of Parliament has been to include gender identity in the hate crime section of the Criminal Code.
When this matter was raised with the minister when he was here, I believe that he said to Madam Boivin that he had no problem in principle with this. So I was optimistic that we could make this amendment in this committee and until just a few minutes ago a majority of the members present at this committee had voted in favour of the bill. But there appears to have been some changes on the government side, so now I am concerned. Those who are the most subject to hate crimes in our society are transgendered individuals and it is more than past time that we add this to the hate crime section of the Criminal Code. It will certainly serve the purposes of public education and of denunciation, and help provide some protection to a group who, as I said, have some of the greatest difficulties in our society.
I'm hoping the changes on the other side of the government don't indicate an intention to defeat this amendment because that would be to thwart the will of Parliament as twice expressed before. So I'm remaining cautiously optimistic.
Thank you.
With regard to the parliamentary secretary's comments about not hearing witnesses, it was in fact this justice committee that heard the witnesses on my private member's bill in this same session of Parliament. So the witnesses have been here. The testimony has been in front of this committee.
As for the fact that the bill's in front of the Senate, precisely what happened with the first version of this bill is that it died in the Senate without the Senate acting on the bill. So the Senate has now had my private member's bill for coming up on 16 months and has failed to pass the bill.
It would be, I guess, a way for the government to hide their opposition of this bill by having it defeated by inaction in the Senate. But as I said, the House of Commons has twice pronounced on this very point. This committee heard the evidence during this session of Parliament, and I would urge the government to reconsider that position.
The government does not support this amendment. In our view, there's no reason to unnecessarily limit the definition of peace officer to those listed in paragraph c.
In doing so, it would mean that military police, customs officers, fisheries officers, and a number of other peace officers, who currently enforce other acts, would no longer have these tools available to them. Part of our intention here is to update the Criminal Code to the digital age and to give all of our peace officers, who have to properly enforce the criminal laws of Canada, the same tools. It would be counterproductive to limit that definition. I would also point out that, although mayors are included in the definition of peace officer, it's always up to a judge to decide whether an application is appropriate, or whether he or she will issue the order in the circumstances.
On that basis, Mr. Chair, the government will not support this amendment.
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I think Mr. Dechert just made my point on why we should have divided the bill. Honestly, it starts.... We haven't decided on the title of the bill, but when you see that its short title is actually the “protecting Canadians from online crime” act and it's mostly to create the infraction of distributing intimate images, the argument that I just heard is about fisheries and different aspects. I understand that we use the opportunity to modernize pretty much every tool under the sun, but that was the point. It's not necessarily how the bill was presented and what its objective was supposed to be. In the words of the mother of Amanda Todd, that's the danger of this whole bill, that it's distracting from the essential and central part of what we were supposed to do. Those are such good examples.
My amendment was to try to centre it a bit more toward what we were supposed to be doing, and honestly, if we want to change all the tools at the disposal of
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of peace officers and public officers
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for any type of legislation, that proves also the point of the Privacy Commissioner that we just heard.
We need to have a much more thorough and inclusive type of study, a study with the point of addressing cyberbullying, because it has been deemed the cyberbullying bill. Again, I'm hearing about fisheries and different types of things. That's what I find the biggest danger with this bill. I don't think we have, around the table, or even with the witnesses that we heard, any expertise on how things are done in all those other fields, because we were studying cyberbullying, which was in front of us. This is not what it's about. I find it's a bit sad that we don't at least focus, and if we want to do other modernizing, maybe we should send it to the right committee to do so and not through the justice committee on a cyberbullying bill.
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Regarding our amendment, it is important to mention something. During his press conference, when he introduced , the Minister of Justice clearly said—and is still clearly saying—that this bill was only supposed to legislate a specific issue—cyberbullying. I am referring to a number of provisions here.
It is important to remind the committee that the Minister of Justice said several times that was not an omnibus bill and that its only goal was to legislate in the area of cyberbullying. I put questions to police associations and, according to them, it was clear that law enforcement should be left up to peace officers.
However, the parliamentary secretary told us that not only peace officers would be in charge of enforcing the new legislation. Military police officers and customs officers would also have that responsibility. What the parliamentary secretary is saying—and I see that he is nodding in agreement—is that the provisions of will not be used only by police officers, but also by other individuals who have not necessarily received the required training.
Various witnesses I questioned on this issue told me that people who do not have the required training to exercise these powers should not be called upon to do so. I am now worried because we are told that the powers vested in the police will be much wider and will also be exercised by federal public officers covered by the definition of the term “public officers”, set out in section 2.
I am sounding the alarm today. People who are concerned about the exercise of these kinds of powers should know that they will be conferred on all public officers and not only on peace officers.