As Public Safety Minister Vic Toews proclaims in the House of Commons that you either support lawful access or stand with child pornographers, Sarah Schmidt of Postmedia has a great story this afternoon on new lawful access revelations obtained under the Access to Information Act. The documents show the internal struggle to justify warrantless access to customer name and address information and call into question Toews repeated assertions that there is no warrantless access to private conversations. Those documents are consistent with many of the points I raised in my FAQ on the Internet surveillance legislation.
On the issue of warrantless access to subscriber information, a Public Safety document demonstrates that the intention is to use this data for purposes that do not involve criminal or child pornography concerns. For example, it notes that warrants would be problematic for “non-criminal, general policing duties” such as returning stolen property. Is the government really proposing to drop key privacy protections for non-criminal concerns?
Moreover, despite claims that court oversight would burden the court system, previously undisclosed RCMP data shows 95% of requests for subscriber information are already met on a voluntary basis. Claims that court oversight would “literally collapse an already over-burdened judicial system” is therefore entirely inconsistent with the data that shows the overwhelming majority of cases are handled without court oversight. The need for court oversight arises for the last five percent, not 100% of the cases.
The struggle to identify shortcomings in the law also demonstrates why court oversight is needed. The RCMP apparently provided seven examples, but only two are partially viewable. The first involves a child pornography investigation in which the subject matter did not meet the definition of child pornography under the Criminal Code. Since the content did not qualify as child pornography, law enforcement could not obtain a warrant. If the content was not unlawful, why should law enforcement be able to obtain personal information without a warrant? This merely invites fishing expeditions or other forays into personal information without proper justification.
In addition to the documents that undermine the case for warrantless access to customer name and address information, the documents suggest that Toews is incorrect when he states that there will be no warrantless interception of Internet communications. Indeed, department officials point out that Section 184.4 of the Criminal Code already permits warrantless interception in exceptional circumstances:
A peace officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where
(a) the peace officer believes on reasonable grounds that the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained under any other provision of this Part;
(b) the peace officer believes on reasonable grounds that such an interception is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and
(c) either the originator of the private communication or the person intended by the originator to receive it is the person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm.
Canadian courts have been divided on the constitutionality of the provision.
The lawful access bill is expected to be introduced on Tuesday