Lawful Access Back on the Legislative Agenda

Lawful access is back.  Two developments this month suggest that there may bi-partisan support for the always controversial attempt to establish new Internet surveillance powers for law enforcement.  First, the Globe and Mail reports today that new Public Safety Minister Peter Van Loan has indicated that lawful access legislation is being prepared that will force ISPs to allow law enforcement to monitor Internet-based conversations.  The power to compel will apparently be subject to court order.  Second, Liberal MP Marlene Jennings has reintroduced her lawful access private member's bill, called the Modernization of Investigative Techniques Act.  The Jennings bill is a virtual copy of a failed Liberal lawful access bill that died in 2005.

Given the past proposals, there is plenty of reason for concern since earlier lawful access initiatives focused on new instrusive powers, some without any court oversight.  That said, the government has the option to provide law enforcement with the powers it needs with appropriate oversight.  For example, the Jennings bill would require ISPs to disclose customer name and address information to law enforcement without court oversight.  In 2007, then-Public Safety Minister Stockwell Day committed to court oversight for such disclosures.  I believe Canadians expect the government to stand by that commitment (and I amazed that Jennings would propose a more intrusive approach).  Further, earlier proposals to mandate surveillance equipment have been rendered moot as most ISPs already have the technical capabilities to monitor Internet traffic.

So what is the way forward?  For starters, I think Van Loan should commit to active consultations with the privacy community before introducing the legislation; renew the government's pledge for full court oversight (including for customer name and address information); and there must be full hearings on the bill that place the burden on law enforcement to demonstrate that there is a problem with the law as it currently stands.

Update: As the Privacy Commissioner expresses concern about lawful access plans, Van Loan now says that the legislation is not imminent.


  1. Rob Campbell says:

    What would Ben Franklin say?
    Any society that would give up a little liberty to gain a little security will deserve neither and lose both.

  2. MITA 2: Electronic bugaloo?
    According to coverage by the Mother Corp. ( details are still fairly scanty and the Minister’s own department aren’t talking. Certainly they have no details on their website. What’s the possibility that the Minister could ‘reach across the aisle’ and adopt Jennings bill in a warm show of bipartisan cooperation? Because when voters were signaling they wanted the parties to work together, I don’t think this is exactly what they had in mind.

  3. Being in Van Loans riding I can tell you the commitment he has with regards to concerns his constituents have is to tuck, tail, and run whenever anyone opposes him locally. I can’t see him putting up with any public concerns on this issue. He is one of Harpers “Yes” men. Why people in my area keep voting for him I don’t know. It must be the confusion between the Conservative Party of Canada (extreme right wing), and the Progress Conservative Party of Canada (traditional to this area).

  4. albertaclipper says:

    Lawless Access
    Having worked in the communications industry and seen where every word typed out from an ISP address can be seen, this bothers me greatly. This definitely, has to be, an intrusion on one’s privacy. This is just as intrusive as walking up to two people and deliberately, in your face, listening to a conversation then as a reason saying that they may have been conspiring to overthrow the government. What now Michael?

  5. He who sacrifices freedom in the name of security deserves neither.

  6. MP Marlene Jennings is at it again!
    This is why I voted Peter Deslauriers (NDP) on the last election.

  7. Canuck Business says:

    if you think terrorists use chatrooms
    YOU really need a hole in the head they learned a long time ago that they are monitoring and have abandoned such stupidity.

    This really is about big brother listening and as far as im concerned go ahead im encrypting it all ARE YOU?

    and ill triple encrypt if you think your going to listen in on my business conversations etc.

    waste again of tax payers money.

  8. If there’s one thing law enforcement in Canada has proven over the last few years, is that it can’t be trusted. It can’t be trusted at the local level, provincial level or federal level.

    Any cop spies on me will be criminally charged with indistrial espionage. Mark my words and that is a solemn promise!

  9. one can only hope that the development of the paranoid linix distro will be up and ready for download if and when this ever becomes law

  10. You’re right, we haven’t seen any details yet, but this is worrying. Today, they’re looking for pervs. Tomorrow, they’re looking for “terrorists”, and the day after that? Our “Human Rights” commissions will no doubt ask for and get the right to track down any “hateful” comments made from a Canadian IP address.

  11. The way forward?
    It’s beginning to look like the way forward is up Parliament Hill with torches and pitchforks in hand. As it stands today, there is simply no reason for Canadian or Provincial governments to do anything other than enrich their members and protect their parties’ interests. (I thought I’d better say this now, before this legislation passes.)

  12. George Smiley says:

    Lawyer/Client Confidentiality
    I wonder when the Law Societies across the country will begin to oppose this inspection and mass archiving of e-mail traffic on the basis of attorney/client privilege.

    Most e-mail between lawyers and their clients is unencrypted.

    The police WILL troll through all this archive looking at everything to/from say, Gowlings or McCarthy’s, or to/from Eddie Greenspan – anybody on the police enemies list or where they know a defendant has hired a specific attorney. Think about cases where somebody is suing the RCMP or Toronto police – you you really think that the police WON’T look, even if it is ‘illegal’?