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Lawful Access is Dead (For Now): Government Kills Bill C-30

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Tuesday February 12, 2013
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.
Comments (12)add comment

Byte said:

Turbo Warrant
"Fourth, Bill C-30 may be dead, but lawful access surely is not."

Doesn't that contradict the headline?

Is there any evidence of police being refused a warrant when they ask for one with the some level of 'probable cause' in cases involving child pornography?

If "time" is the only other factor, wouldn't it be more prudent to expedite the process in these cases?

To me this legislation sounds like a typical case of "it's the terrurirsstss!" or "think of the children!!" while in reality a much darker, hidden agenda is being pursued.

Why not pursue the Turbo Warrant process? A lot easier, a lot cheaper, a lot less likely to be abused and a lot less impact on the general public.
February 12, 2013

Scott said:

nothing changed just a smoke screen
we have an evil little Napoleon clone running this country. until hes gone freedom will be considered a crime!
February 12, 2013

Kirk said:

Not over yet.
They'll just change the name of it and try again. If that fails, they'll try again and again and again until it eventually passes. It will pass. Other major world governments have similar legislation on the books.

Even if and when the conservatives are voted out the liberals will try again. It was the liberals that tabled this legislation in the first place. Just like in the U.S. the two parties are just different sides of the same coin. Same goal, different approach.
February 12, 2013

Matt said:

Reality check
We are in a situation where Stockwell Day's position was the moderate one which has been abandoned in favour of something more extreme.
February 12, 2013

NoWayMo said:

Smoke and Mirrors
Quit celebratin'; it isn't over just yet. Sure, C-30's dead, but it has simply been reincarnated. This fight is not over. Start calling, writing, paying visits!

http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=5975313&File=4
February 12, 2013

Eric L. said:

RE: NoWayMo
Wow, common sense prevailed...for about 5 minutes. A new record!
February 12, 2013

Latrell said:

Notwithstanding clause alert?
"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."

Does the government need to invoke the notwithstanding clause (section 33 of the Charter) to do this?
February 12, 2013

Steve said:

Whats a little warrantless aceess among friendly international govts?
Please correct me if the following is untrue... My understanding is that, while defeating or watering down bills and laws like C-30 makes it *seem* like we are limiting our own government from proactively spying on us without a judicial oversight, we have absolutely no protection from other governments from spying on us to the fullest degree of their ability. This then sets the stage so that friendly governments are free to cooperatively spy on each other's citizens, and then as as a quid pro quo among "security partners" share whatever information they so please. If this is true, then we must assume anyone online or using a phone is-or-can-be fully surveilled by the RCMP, CSIS, even perhaps local police forces without a warrant and without asking ISPs as long they can simply convince the US or UK to do so and share whatever they find. Thoughts?
February 12, 2013

Eric L. said:

Re: Steve
My law professor once claimed that CSIS was monitoring all emails under the premise of national defence. So I'm inclined to believe that higher agencies are engaged in such monitoring behaviour.
February 12, 2013

Annie O' said:

The Net isn't finished yet.
We never have had any privacy online, we only had a general agreement among ISPs that they won't look at our traffic. What we've had all along is an ILLUSION of privacy; a very desireable illusion though, I think.

If we now want to have ACTUAL privacy online then we'll have to take it ourselves, our governments and ISPs (who are in the content business) won't give it to us voluntarily.

If the Internet is going to fulfill its promise of an open, equal access network, then it will be up to us to finish building that network. I mean by running TOR on it, so that all traffic is encrypted. Then it won't matter what laws any government passes.
February 12, 2013

Steve said:

re: The Net isn't finished yet.
Annie, there was a time when I thought of it the same way. Noble projects that allowed secure, private messaging and content were built bu well meaning open source volunteers in the West so that people in totalitarian regimes could organize and get informed. Now the mere interest in privacy, including the use of these technologies, is seen by our own governments as reason for them to have elevated suspicion of us ("what have we got to hide?" we must be "with the pornographers" and so on). We have truly come to a Huxlian and Orwellian state where we use the net either amusing ourselves or going about our daily lives, all the while we have helped to build a dystopian world were we have effectively complete government and corporate surveillance, eventually of everyone. And that information will be used for their interests, not ours. I wish I could see a way out of this spiral.
February 13, 2013

pamela681 said:

...
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February 17, 2013

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