Lawful Access Legislation: Liberals Come Out Against No-Warrant Online Spying They Once Proposed

Marc Garneau Warrantless Spying Lawful Access

First Posted: 11/08/11 04:24 PM ET Updated: 11/08/11 04:33 PM ET

The Liberals have come out against the Conservative government’s plans for warrantless surveillance of Canadians, with the party’s science and technology critic calling it a potential “slippery slope” to unchecked police surveillance.

In doing so, the opposition party joins the New Democrats and Canada’s privacy commissioners in expressing concern about the government’s plans to loosen the laws surrounding how police gather information online about suspects.

But it is a far cry from the party’s position on the subject less than a decade ago, when the previous federal Liberal government flirted with similar warrantless surveillance proposals.

Liberal MP Marc Garneau, the party’s science and tech critic, has issued an open letter declaring that “judicial oversight (issuing of warrants) should be required in virtually all circumstances before a permit is issued for the gathering or sharing of an individual or organization's information.”

Under a set of proposed bills tabled in Parliament during the last Conservative government, police would be able to collect emails, addresses, phone numbers and other basic information about Internet subscribers without a warrant. But they would still need a warrant to access the content of those communications.

Internet service providers would also be required to retrofit their networks with technology that would allow real-time monitoring of targeted individuals’ online activities.

Critics have said the “lawful access” proposals, as they are known, would severely undermine judicial oversight of police investigations online.

Garneau told the Huffington Post Tuesday he would like to see the rationale behind the provision to remove the need for warrants.

“I can’t think of any circumstances where a warrant would be required” where police couldn’t get one, Garneau said, but he conceded police may be frustrated at the length of time it can sometimes take to obtain a warrant.

He suggested the bill may be a “precursor” to allowing police unlimited access to the content of online communications -- something that, were it to happen, would essentially remove all judicial oversight of online surveillance.

Garneau suggested that any bill modernizing online surveillance include sunset clauses -- provisions that would see the law expire, should politicians decide it did not work out as planned.

The MP for Montreal’s Westmount--Ville-Marie riding also said any tapping-into of Internet users’ online activities should have a time limit, so that police cannot simply carry on monitoring individuals indefinitely.

It’s unclear whether such provisions will be included in the government’s bill, as the Conservatives have not yet tabled the bill in the current parliament. The bill was conspicuously absent from the omnibus crime legislation tabled earlier this fall, but Public Safety Minister Vic Toews has said the government plans to proceed with it.

The latest lawful access legislation comes after several aborted attempts at expanding surveillance powers under the previous Liberal government. The last such effort was the Modernization of Investigative Techniques Act (MITA), tabled in 2005, which would have required warrantless disclosure of subscriber information. The bill, like earlier attempts at surveillance law reform, was controversial within the party and it died when the Liberals were defeated by Stephen Harper's Conservatives in early 2006.

Liberal MP Marlene Jennings has put MITA forward as a private members' bill several times over the course of the Harper government, though her bills never went past first reading.

Several of Canada’s privacy commissioners have recently added their voices to the criticism of the bill.

“No systematic case has yet been made to justify the extent of the new investigative capabilities that would have been created by the bills,” federal privacy commissioner Jennifer Stoddart wrote. “Canadian authorities have yet to provide the public with evidence to suggest that CSIS or Canadian police cannot perform their duties under the current regime.”

Ontario privacy commissioner Ann Cavoukian added her voice to the criticism as well.

In my view, it is highly misleading to call it ‘lawful,’” Cavoukian wrote in the National Post. “Let’s call it what it is — a system of expanded surveillance.”

Her criticism drew a sharp rebuke from Toews, who wrote in a response that “no legislation by a Conservative government will create powers for police to read emails without a warrant.”

Critics accused Toews of confusing the issue, noting the proposed law would not allow police to read emails -- only to find out who sent what emails to whom, and when.

Consider just one of the new threats to our fundamental freedoms,” Cavoukian wrote in her response to Toews. “Police could force telecoms to provide the name, address and unique device number of people (enabling online tracking) who posted comments on newspapers' websites under pseudonyms -- without a warrant, without explanation and in secret. ... This is unacceptable: 88 pages of new powers, without matching judicial safeguards.”

A poll done for the Office of the Privacy Commissioner of Canada earlier this year found eight in 10 Canadians oppose allowing police to track online activities without a warrant.

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New Zealand: Parliament The First Victim Of Own Law?
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New Zealand snuck in a three-strikes law against file-sharers as part of an emergency earthquake relief bill. The law, which will see Internet account holders cut off from the web if they receive three copyright violation notices, went into effect last week. Critics have said it violates due process because it doesn't allow the accused to defend themselves. Because the law targets account holders and not actual file-sharers, New Zealand's Green Party says Parliament itself could have its Internet cut off if any of the thousands of people who use the government's Internet use it for illegal downloading. An hour after the law went into effect, a Reddit user claimed to be doing just that.
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