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Government's Lawful Access Claims Stand on a Shaky Foundation

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LAWFUL ACCESS ONLINE SPYING CANADA INDEPENDENT ISP
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Early next year the government will introduce lawful access legislation featuring new information disclosure requirements for Internet providers, the installation of mandated surveillance technologies, and creation of new police powers. Public Safety Minister Vic Toews, the chief proponent of the new law, has defended the plans, stating that opponents are putting "the rights of child pornographers and organized crime ahead of the rights of law-abiding citizens."

Toews' stance in the face of widespread criticism from the privacy community and opposition parties is likely to be accompanied by a series of shaky justifications for the legislation.

For example, the bill will mandate the disclosure of Internet provider customer information without court oversight -- that is, without a warrant. Under current privacy laws, providers may voluntarily disclose customer information but are not required to do so.  Toews has argued that the mandated information is akin to "phone book data" that is typically publicly available without restriction.

Yet the legislation extends far beyond phone book information by requiring the disclosure of 11 different items including customer name, address, phone number, email address, Internet protocol address, and a series of device identification numbers. Many Canadian courts have recognized the privacy interests associated with this data.

In fact, it isn't only Canadian courts, privacy commissioners, and civil liberties groups that believe striking the right balance on the issue necessitates requiring a warrant. Former Conservative Public Safety Minister Stockwell Day stated in 2007:

We have not and we will not be proposing legislation to grant police the power to get information from Internet companies without a warrant. That's never been a proposal. It may make some investigations more difficult, but our expectation is rights to our privacy are such that we do not plan, nor will we have in place, something that would allow the police to get that information.

Toews will also claim the changes are necessary to ensure that Canadian law enforcement has the tools it needs to combat online crime threats. While everyone agrees that the law must stay up-to-date with emerging technologies, neither the government nor law enforcement has provided credible evidence demonstrating how the current law has impeded active investigations.

One of the only attempts at providing evidence came in 2009 from Toews' predecessor, former Conservative Public Safety Minister Peter Van Loan. Van Loan pointed to a 2009 kidnapping case in Vancouver as evidence of the need for legislative change, describing witnessing an emergency situation in which Vancouver police waited 36 hours to get the information they needed in order to obtain a warrant for customer name and address information. That sounds like a credible case, but according to documents obtained under access to information, no Internet provider records were actually sought during the investigation.

While Toews will focus on the need to address online threats, he will likely avoid admitting that lawful access will come at an enormous cost. Some smaller Internet providers have warned that they may be forced to shut down if faced with requirements to install costly surveillance technologies with no ability to recoup the investment. Lawful access would not only lead to lost jobs at the affected companies, but the loss of competition could lead to higher Internet costs for all Canadians at the very time Industry Minister Christian Paradis has promised "globally competitive prices for consumers."

Canadians deserve better than deceptive claims and divisive name-calling. They deserve real judicial oversight before their personal information is disclosed and, given the costs (financial and otherwise), they deserve a full accounting on why lawful access is needed.

This post previously appeared on www.michaelgeist.ca.

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