Appeared in the Ottawa Citizen on March 27, 2007 as Liberals Try to Resuscitate Big Brother Plan for the Internet

As Canada's political parties gear up for a possible spring election, political commentators have noted a surprising role reversal, with the Conservatives launching a series of new spending initiatives in last week's budget and the Liberals emphasizing “tough on crime” measures.

The Liberal anti-crime agenda, first outlined in a speech by Opposition Leader Stephane Dion in mid-March, took its first step forward on Friday as Liberal MP Marlene Jennings introduced the Modernization of Investigative Techniques Act (MITA) as Bill C-416, a private members bill.  While the bill is unlikely to pass – opposition private members bills rarely become law and the current Parliamentary session is likely to end before the bill makes much headway – the decision to reintroduce the failed and controversial legislation raises questions about when increased surveillance became a policy position worth promoting.

Last introduced by the Liberals in the fall of 2005, MITA mandates the installation of new surveillance technologies within Canadian networks along with additional legal powers to access surveillance and subscriber information.  Often referred to as the "lawful access" initiative, the legislation would compel Internet service providers to install new interception capabilities as they upgrade their networks. The country's major ISPs, who provide service to the majority of Canadians, would eventually be capable of intercepting data and isolating specific subscribers.

Among the most troubling aspects of Bill C-416 is a series of new powers that are not accompanied by any judicial oversight.  Law enforcement authorities, including the police, CSIS agents, and even Competition Bureau authorities, will have the right to obtain ISP subscriber information simply upon request without a warrant.

Internal government documents obtained last fall under the Access to Information Act provide some insight into how officials viewed, and have managed, the lawful access initiative.  It uncovers a clear recognition of the negative public reaction to the lawful access proposals and lingering internal doubts about the effectiveness of Canadian privacy legislation to address Internet privacy threats.

The negative public reaction is no secret to anyone who has followed the issue through the media. Indeed, a Department of Justice memorandum drafted just after the last federal election acknowledged that "although the public generally responds positively to the idea of ‘getting tough on crime', proposals to introduce new investigative tools raise concerns about the surveillance powers of the state and the public's underlying anxiety is heightened by the media and statements of privacy and civil liberties advocates."

The memorandum continued by noting that "almost all stakeholders indicated generally that the lawful access proposals seemed to be moving ahead without the government having provided a convincing justification for the new measures."

Given the public anxiety and critical media coverage, it would appear that the Conservative government viewed the lawful access issue as a political liability that is best avoided by a minority government.  Law and order has played a central role in their legislative agenda, yet lawful access has been nowhere to be found.

In contrast, lawful access was given a prominent place in Stephane Dion's recent address on crime issues, as he argued that MITA "strikes the right balance between the needs of police and industry, while respecting Canadians' right to privacy."

Few in the privacy community share that view.  Indeed, a Department of Justice memorandum drafted during the lawful access effort commented that "current privacy laws may not be sufficient to protect Canadians' personal information," acknowledging that "federal privacy legislation is not responsive to new technologies, including the Internet."

Interestingly, Dion used the same crime issues speech to express support for mandatory notification of privacy breaches and anti-spam legislation. Taken together, his party apparently supports measures to require companies to inform Canadians about when their privacy is at risk due to a security breach, yet it has now introduced legislation that could result in disclosure of sensitive personal information to government without any such disclosure or even judicial oversight.

Private members bill are often used to stake out policy positions and raise awareness of issues that have not garnered much attention from the ruling government.  The introduction of Bill C-416 may achieve both of those objectives, but at the high price of placing Canadians' privacy at risk.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.