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Government Docs Confirm the Case Against Warrantless Disclosure of Subscriber Data

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Monday February 13, 2012
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
Comments (16)add comment

Anonymous said:

"Voluntary" co-operation
While I understand your points, I worry that critics are inadvertently suggesting a level of comfort with the idea that ISPs should voluntarily disclose info to cops. In fact, the current law doesn't clearly say that they can do so; in cases where they have, courts are divided about whether that violates s.8 (and those that say it doesn't use a variety of flawed arguments.) I'd be careful not to throw that to the wind too fast. It's almost worse if ISPs are somehow allowed to voluntarily disclose--we're leaving this fundamental privacy decision in the hands of private industry, with no oversight whatsoever.
February 13, 2012

Avi Solomon said:

if this is passed
how would it stand up to constitutional challenge?
February 13, 2012

Ian Marsman said:

Software developer
Did Mr. Toews REALLY suggest that to oppose the requirement that those who track people's digital lives be required to justify this and obtain a subpoena? Is it REALLY true that Mr. Toews suggested that those who oppose this legislation stand with pedophiles? Did I get it wrong?
February 13, 2012

Ian Marsman said:

...
I could have worded that more clearly. Sorry. I still am flabbergasted that Mr. Toews seems to have said that opposing their legislation is standing on the side of child pornographers. Sounds a lot like "you're either with us or you're with the terrorists". Black and white. My big concern is that I don't trust people when they are not held accountable, including people who happen to be law enforcement officials.
February 13, 2012

Crockett said:

...
Everyone, except the obvious perpetrators, is against child pornography, yet we already have legislation and police powers to handle this. This legislation is, by the governments own 'internal' admission meant to capture non-criminal activity.

To suggest that access to private information for non-criminal activity is so necessary as to overthrow personal privacy and due process due to citizens is ridiculous.

The excuse that without this law that it would be an overburden to the legal system to gain such information is a cop out. If the government is so intent on gaining this information for non-criminal activity then bolster the capacity of the legal system, don't take fundamental rights away from it's citizens!

One wonders with the building of new jails and mandatory sentences if this is just a way to clean out the already overloaded judicial system. If so it is a poor patch to an inflating problem. Already murderers and other violent felons are starting to walk because of an understaffed system. Efforts and investments should be put towards bolstering our legal processing capacity before the government 'cracks down' on crime.

It's all a mess, what is this government thinking?
February 13, 2012

paradox said:

I stand with child pornographers
I do not support lawful access.
I do question the integrity of law enforcement.
I do not support a police state.
I have everything to hide (it is my privacy and my right).
According to you Mr. Toews "I stand with child pornographers" then catch me if you can.
February 13, 2012

Crockett said:

Wonderful ...
The conservatives just supplied the sound bite to get Canadians off their duffs and aware of the frightening plans of this government. Could this be Canada's SOPA moment?

P.S. What an idiotic statement, Mr. Toews.
February 13, 2012

ENO said:

What a tool
A Public Minister who proclaims that you either support lawful access or stand with child pornographers should resign since he is not honorable anymore.
February 13, 2012

Ki said:

...
Well, if there's any proof that this government has something to hide about this, this would be it.
February 13, 2012

oneforall said:

...
Spoken like a dictator either you agree or we label you as a child pornographer. Dictators love to threaten us. Since he wants so bad hardware etc installed to keep track of everything we all do . It is him making it easier for the corrupt police to sell the info to both. So he is more with the child pornographers and criminals. Doesn't surprise me since they were and probably still are in contempt, cheated at election time, sign ACTA secretly and many more.
February 13, 2012

end user said:

...
If the government has nothing to hide they wouldn't be hell bound on passing this and calling Canadian citizen paedophiles.
February 14, 2012

Dmca Copyright Infringement said:

Dmca
Such a big question. What can I say.



http://www.dmcanow.com/about-dmca.html
February 14, 2012

Canoe76 said:

absolutely unreal
If you have time for nothing else, send a template letter:
http://www.realprivacy.ca/write-my-mp

Toews' lumping of people who support democracy and accountability -- which includes myself and absolutely everyone I know -- with child rapists, is revolting and he should resign for these disgusting remarks. I have one word for him: libel.

Toews apparently doesn't understand: two "wrong"'s still won't ever make a single "right." No amount of *bad* on the Internet -- not child pornography, not copyright infringement, not even people plotting the next something awful -- could ever make state surveillance, and putting our democracy on a precipice, the right solution.

The Internet doesn't care what we use it for, but the government does. This isn't about children. This is about fear and money and the suffocation of freedom before our very eyes. We can't have liberty or humanity and cannibalize them too.

Fact: all crimes are committed by human beings. But, giving up on humanity and just executing everyone is not the way to prevent crime. Seriously Vic, what is going in your head? Didn't you even read that book? An eye for an eye leaves everyone sightless and bleeding from the eyes.

Privacy and democracy are the most important things I have -- we all have -- and I'm not willing to flush them for any amount of fear, no matter what people could be using the Internet to talk about behind closed doors. The Internet has to be a neutral third party for it to be safe for all of us to use, as we all do, every day.

We should all petition the Governor General to dissolve this gong show -- we sure aren't going to get a no-confidence vote with this majority.

I have honestly never been so offended by direction of my nation's government and, for the moment, I am thankful I can still express my feelings openly without fear of surveillance, but I am certainly worried about the possibility of loosing this freedom in the future.

Please, everyone, make some noise over this one.
February 14, 2012

Ray Saintonge said:

...
A key element of the existing section 184.4 is the urgency of immediate harm. A person who stores thousands of kiddie-porn photos has likely built his collection over an extended period of time, and he is also likely to want to keep that collection for a long time. Distasteful as some may find this, there is no urgency.
February 14, 2012

Canoe76 said:

ludicrous
He's not even using the possibility of preventing flat-out pre-meditated murder as a reason, he's just choosing something to conjure outrage. Even if that were his reason, I'd still not voluntarily give away what is an essential right, and arguably the crux of democracy.
February 14, 2012

Dan said:

@Canoe76
The outrage is there...not quite what Big Brother Vic was expecting from us though eh?
February 20, 2012

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