Search Engine, CBC's excellent new show on the Internet and technology, focused this week [MP3 podcast] on recent lawful access controversy. I appear in the first part of the show, but more important is the response from Public Safety Minister Stockwell Day. Leaving aside the Minister's inaccurate claims that the consultation was been "wide open" and the suggestion that perhaps the consultation was old Liberal wording, it is good to hear him again confirm that the government will not introduce legislation compelling the disclosure of CNA information without a court order. According to the Public Safety Minister:
"We are not, in any way, shape or form, wanting extra powers to police to pursue items without a warrant. That is not what our purported legislation is going to be doing. That is previous Liberal legislation and that's not the path we're walking down at all."
This is both a clear confirmation of the government's position and a good indicator that it smartly intends to use this to score political points by emphasizing the Liberals' support for disclosure without court oversight.
After listening to Minister Day’s interview on “Search Engine”, I’m struck by its apparently disingenuous nature. While believable that he has not read this CNA consulation document, his claim that this was just one of many divergent viewpoints on the topic that happened to have been sent out by an overenthusiastic bureaucrat is frankly not credible. Worse, he manages at the same time to deride the earlier Liberal government consultations on lawful access while claiming that this one is a free and open consultation and no more than the continuation of that process, which it would seem has been going on ever since – but was coincidentally scheduled to end on September 25 of this year!
While I don’t accept at face value his assurance that “Canada’s New Government” will not attempt to bypass warrant requirements for CNA information access, even if true two very troubling points remain:
1. The CNA consulation paper indicates that “Some companies provide this information voluntarily, while others require a warrant before providing any information”. Allowing ISPs to voluntarily provide CNA information leaves our privacy at the mercy of whatever pressure LEOs and government care to put on these companies. We’ve seen examples of how that works out in the US.
2. Regardless of whether warrantless “lawful access” provisions are included, clearly some new legislation on access to customer information (and perhaps content) is in the works. Based on Day’s interview, it may well require ISPs to build in surveillance capabilities. This is NOT being discussed with civil society.