Justice Minister Rob Nicholson announced yesterday that the government will not be proceeding with Bill C-30, the lawful access/Internet surveillance legislation:
We will not be proceeding with Bill C-30 and any attempts that we will continue to have to modernize the Criminal Code will not contain the measures contained in C-30, including the warrantless mandatory disclosure of basic subscriber information or the requirement for telecommunications service providers to build intercept capability within their systems. We’ve listened to the concerns of Canadians who have been very clear on this and responding to that.
This shift in policy is remarkable, particularly for a majority government that has used crime as a legislative wedge issue. Almost one year ago to the day – on February 13, 2012, Public Safety Minister Vic Toews infamously told the House of Commons that critics of his forthcoming bill could stand with the government or with the child pornographers. Bill C-30 was introduced the following day, but within two weeks, a massive public outcry – much of it online – forced the government to quietly suspend the bill and now a year later openly acknowledge that it is dead.
I think there are at least four takeaways from the lawful access failure of 2012-13. The first is that bad policy is hard to defend. Successive governments (both Liberal and Conservative) have introduced lawful access legislation and consistently struggled to identify actual examples where the current laws are inadequate. Moreover, the rationale for these laws has constantly shifted – from terrorism to spam to child pornography to (most recently) cyber-bullying. The public can sense a failed policy and the current version of lawful access – with no real attempt to address legitimate privacy and oversight concerns as well as silence on who was going to pay the hundreds of millions in surveillance technology costs – was so bad that even supporters were forced to admit its overreach. In fact, even as the bill was declared dead, the director of CSIS acknowledged that “it’s not absolutely critical for us to do our work.”
Second, the lawful access experience in Canada becomes part of the growing number of Internet advocacy success stories. From the massive petition on usage based billing that spurred the government to effectively order the CRTC to reconsider the issue, to the gradual shift in copyright reform that resulted in more user-oriented provision than any comparable law in the world, Canadians have demonstrated that they are concerned with digital policies and will not hesitate to use social media and the Internet to speak out. To the government’s credit, it paid attention to the lawful access backlash as Nicholson acknowledged the strong public opposition and the decision to respond to it.
Third, even with Bill C-30 dead, there is a problem with the current system of voluntary disclosure of customer information by ISPs. The lawful access debate placed the spotlight on the fact that ISPs disclose customer information tens of thousands of times every year without court oversight. The law permits these disclosures, but there are no reporting requirements or accountability mechanisms built into the process. Those are needed and the government should move swiftly to add this to the law, either within Bill C-12 (the PIPEDA reform bill) or Bill C-55, which was introduced yesterday.
Fourth, Bill C-30 may be dead, but lawful access surely is not. On the same day the government put the bill out its misery, it introduced Bill C-55 on warrantless wiretapping. Although the bill is ostensibly a response to last year’s R v. Tse decision from the Supreme Court of Canada, much of the bill is lifted directly from Bill C-30. Moreover, there will be other ways to revive the more troublesome Internet surveillance provisions. Christopher Parsons points to lawful intercept requirements in the forthcoming spectrum auction, while many others have discussed Bill C-12, which includes provisions that encourage personal information disclosure without court oversight. Of course, cynics might also point to the 2007 pledge from then-Public Safety Minister Stockwell Day to not introduce mandatory disclosure of personal information without a warrant. That position was dropped soon after Peter Van Loan took over the portfolio.
Lawful access opponents should rightly celebrate the defeat of Bill C-30 and the government’s recognition that it was a bad bill that was poorly justified. That said, lawful access will return. Law enforcement will continue to lobby for the reforms and Public Safety officials, who have shown little pretense of balance on this issue, will keep the file alive in the hope that it can be revived. Perhaps it will come as a single bill, though more likely the policies will be found in smaller pieces of legislation or non-legislative policies that are more difficult to identify and oppose. Bill C-30 is dead, but the fight over Internet surveillance and foundational privacy principles such as court oversight for mandatory disclosure of personal information will continue for the foreseeable future.