As expected, the government today unveiled Bill C-74, the Modernization of Investigative Techniques Act, better known as lawful access. Since I’ m Tunis, I’m relying on the various releases from PSEPC, the Ministry responsible for the bill. I’ll update this posting as needed once I’ ve had a chance to fully digest the bill [update – Bill C-74 is now online]
Based on the PSEPC information, there are two key elements to this bill. First, telephone and Internet service providers will be required to include an interception capability as they introduce new technologies. Not all ISPs will be immediately affected, however, since those with under 100,000 subscribers will be exempted from the technological mandates for three years. Those ISPs subject to the law will have one year to comply. Access to this information will be subject to court oversight.
Second, law enforcement will be able to compel ISPs to disclose subscriber information, including name, address, IP address, telephone number, and cellphone number. It would appear that such information can be compelled without judicial oversight. The so-called rigorous oversight is basically limited to recording the requests and creating the prospect for audits on the use of this power.
A few comments on MITA and the government’ s spin on the bill. First, the government is clearly trying to convince Canadians that we are playing catch-up on this issue, as it provides a chronology illustrating how the U.S., the U.K., Australia, and New Zealand have already moved forward with intercept legislation. This should not be viewed as particularly persuasive- there are crucial elements in the Canadian legal framework (national privacy legislation, the Charter of Rights) that differ from those other countries. Moreover, Canada is free to choose its own path and create Canadian provisions that better reflect national priorities and values.
Second, the government seeks to assure Canadians that their privacy will be protected with the oversight described above. In fact, one document downplays the sensitivity of the information, likening it to "basic contact information, like that found in a phone book." Unfortunately, the bill does precisely what privacy advocates warned against by increasing surveillance and decreasing oversight. The oversight included in the bill is weak since it all occurs after the disclosure has been made. What is needed is oversight before the disclosure to ensure that the proper privacy safeguards are maintained. Moreover, we should not be lulled into thinking that the information is not sensitive – the information can hold the key to a wide array of additional information that can be exceptionally revealing. As we learned with this week’ s Maclean’ s story, it isn’ t the phone number that matters, it is what the phone number can lead to and the same situation applies to ISP subscriber information.
Third, the government suggests that lawful access won’ t cost Canadians and will, in fact, "reduce costs to taxpayers and consumers." Apparently the logic here is that government overspends to access this information at the moment (by having to actually obtain a warrant rather than a phone call in some circumstances) and this bill will therefore reduce costs. I’ m assuming that everyone can see through this -obviously lawful access is going to create new costs for ISPs, who will ultimately pass along those costs to consumers. To argue otherwise is just plain silly.
Fourth, the government plays the "it could have been worse" card. It notes that the bill does not include requirements to retain data on web surfing habits or "know your customer" rules for ISPs. The fact that the government declined to include even more invasive provisions should hardly be seen as a victory.
Fifth, it is important to note what is not in the documentation. Yet again, the government has failed to make the case that this is necessary. While they note that convictions are more likely with lawful access information and that this bill , there is no evidence provided that the current system has somehow led to botched investigations or failed prosecutions. Indeed, access to subscriber information without a warrant is needed because "subscriber information is often required at the beginning of an investigation or for general policing duties. In these circumstances, the police may not be able to get a warrant given the little information available to them, and the time it would take in order to gather the necessary information for a warrant, where it is possible, can be critical to an investigation." In other words, authorities don’t have enough evidence to justify obtaining a warrant, to the law is being changed to make it easier.
Canadians deserve better. They deserve real judicial oversight before their personal information is disclosed and, given the costs (financial and otherwise) they deserve a full accounting on why this bill is needed.