Van Loan’s Misleading Claims: Case for Lawful Access Not Closed

The push for new Internet surveillance capabilities – dubbed the "lawful access" initiative – dates back to 1999, when government officials began crafting proposals to institute new surveillance technologies within Canadian networks along with additional legal powers to access surveillance and subscriber information.  Over the past decade, lawful access has stalled despite public consultations, bills that have died on the order paper, and even a promise from former public safety minister Stockwell Day to avoid mandatory disclosure of personal information without court oversight. Last June, current Public Safety Minister Peter Van Loan tabled the latest lawful access legislative package.  Much like its predecessors, the bill establishes new surveillance requirements for Internet service providers. In an about-face from the Day commitment however, it also features mandatory disclosure of customer information, including name, address, IP address, and email address upon request and without court oversight.

My weekly technology law column (Toronto Star version, Ottawa Citizen version, homepage version) notes that lawful access has long faced at least two significant barriers.  The first involves ISP costs associated with installing new equipment and responding to disclosure requests.  The government has attempted to address those concerns by promising to help pay the bills.  It plans to provide some funding for new equipment and, in a little noticed provision, has opened the door to paying ISPs for providing customer name and address information to law enforcement authorities.  

The second barrier involves lingering questions about the need for lawful access.  Critics have pointed to the fact that Canadian law enforcement has successfully used the Internet in hundreds of investigations, including a high-profile Toronto terrorism case. Moreover, the law already grants ISPs the options to disclose customer name and address information.

Van Loan argues that the changes are long overdue, pointing to a kidnapping case in Vancouver earlier this year as evidence of the need for legislative change.  In several interviews, he has described witnessing an emergency situation in which Vancouver police waited 36 hours to get the information they needed in order to obtain a warrant for customer name and address information.

While that makes for a powerful example, a more detailed investigation into the specifics of the case reveals that Van Loan's rendition leaves out some important details.  Over the summer, I launched Access to Information requests with the Ministry of Public Safety, the RCMP, and the Vancouver Police Department, seeking further information on the kidnapping case.

Both Public Safety and the RCMP responded that they had no additional information to provide other than the transcripts of the minister's interviews.  The Vancouver Police identified the case as a February kidnapping (not March as suggested by Van Loan).  The suspect was ultimately arrested and the case is currently before the courts, therefore limiting the department's ability to provide much detailed information.  

However, in an admission that goes to the heart of Van Loan's claims, a legal adviser disclosed that no ISP records were sought during the investigation.  In other words, the case the minister of public safety has presented as evidence of the need for mandatory disclosure of ISP customer records never involved a request for such records and yielded an arrest using the current law.

Without a doubt, society needs to ensure that police have the ability to deal with serious crime.  Yet, public concern about lawful access comes directly from privacy fears and the absence of compelling evidence that the current system has created serious barriers to police investigations.  The latest reliance on a case that did not even involve ISP records should only heighten skepticism about the government's proposed lawful access reforms.


  1. VancouverDave says:

    Obtaining Warrrants
    I can’t imagine a scenario in which email or website access records would be required within hours rather than days or weeks, but even if a case arose in which immediate access were necessary, our legal system provides for issuance of a warrant on very short notice.

    There is simply no rational excuse for requiring ISPs to divulge private information without any court oversight. This proposal is nothing more than a invitation to abuse by officers who feel that a judge would not approve of their intentions.

  2. Assuming this government even manages to survive long enough for it to pass, will this legislation be able to withstand a constitutional challenge? It seems like a clear case of “Unwarranted Search and Seizure” to me.

  3. “…paying ISPs for providing customer name and address information to law enforcement authorities.”

    I don’t see how anything bad could come of that.


  4. Passing Through says:

    It would be orders of magnitude cheaper to hire additional judges to be “on-call” in the event that a time sensitive warrant is required.

    It is my personal belief that the government is willing to invest in snooping hardware in order to pave the way to litigate file sharers down the road. From this article we know that kidnappings and such are not the real motivation…what would motivate this expenditure if it’s not lobbyist dollars?

  5. Time for Tor
    Time for Tor

  6. My advice to the “New Conservatives”?
    Submit to court oversight or drop this idea forever.

  7. “Life, liberty and security of person

    7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

    Search or seizure

    8. Everyone has the right to be secure against unreasonable search or seizure.”

    Straight from the charter of rights and freedoms. This would constitute an “unreasonable” search and seizure in many different cases. Does this conservative government recognize the Charter of rights and freedoms? Mining data from citizens without a court order would be illegal. So this govt has opted to dance around our rights with this disgusting piece of legislation dubbed “lawful access”. I will happily join and fund anyone whose willing to sue over this. Which will likely happen if this ever passes.

  8. It’s called a lie
    Van Loan saying something that didn’t happed did is lying. Misleading is when the truth is presented in a way that gives the wrong impression

  9. history repeats says:

    Hmm, Sam. So basically Van Loan is a lying sack of fertilizer.

    Think of the kids!

    If this doesn’t pas puppies will die and kittens will be burned alive!

    Wait, this sounds like rhetoric.

    Lets just petition the CRTC to allow this instead. Puppies, kids, kittens and the 5% of the twisted people who will destroy Canada! We can’t allow this to happen, we need the CJC to jump on board (gain).

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  11. Lawful ABUSE
    Reposting this from a comment made by another author

    Another cop used police computers to abuse the privacy of private citizens:
    According to a published report, Lauzon was investigated after she accessed the Centre de renseignements policiers du Québec, a provincial database connecting various sources of information. She is alleged to have accessed the database on the request of her father, 68-year-old Fernand Lauzon, a man who was arrested earlier this year in Operation Axe, a police roundup of people who dealt drugs for the Hells Angels.

    Lawful access, ripe for abuse by those who claim they won’t abuse anything.

  12. Crazy
    How is it we have a government we have to fight about this stuff. It is common sense. This has nothing to do with criminal cases as the ability to get a warrant on reasonable grounds is already available, this is all about the media lobby trying to get civil cases in Canada. They keep trying to push this it seems, we need a government that isn’t trying to do this to us all the time. If it ever comes to an election I will certainly be showing my opinion with my vote and encourage others to do the same. This is scary wrong in so many ways and it is a very slippery slope to go down, to even scarier 1984 type landscapes. Rights are not negotiable.

  13. Dev
    Looks like 1984 is well on its way. First surveillance cameras down town Toronto. Then surveillance on the Internet and tapping your phone. Then eventually in your house when you sleep at night. Of course for the children. Won’t someone think of the children? Hahahaha. What a joke.

    If Canadians stop paying attention they’ll slip this into some other piece of legislation and we won’t even know it’s on the books. With things like the E-Health scandal. This is rudimentary business with these crooked buggers. Out with the whole bunch in the next Election.

  14. The real legislation that Loan needs to introduce
    Is legislation that renders any law passed completely “Null and Void” if it can be proved that the minister lied or was incorrect when talking about the need for that law.

  15. We all watched Bush ruin the rights of the American People
    and we couldn’t do anything about it because we weren’t American. But Canadian I am, and I will fight this – Harper is a little Bush (and a Mulroney worshipper), and I’m not letting what happened to America happen in my country if I have any say.

  16. Runaway1956 says:

    All politicians are liars
    Warrants don’t take 36 hours – in any streamlined, modern court system, they might take 12 hours, and even that is unlikely. Painting such a picture is dishonest, aside from the fact that Van Loan outright lied in this case. Every country has it’s internal enemies who think that they should be running the country. Van Loan is just another Nazi Wannabe. Vote him out of office, Canada. You don’t need him, no matter his background or qualifications.

  17. A law has never been written that hasn’t been abused by law enforcement
    This law is so flawed in concept it could only have been spewed by a Conservative. The Liberals, NDP, Greens and even the Block aren’t stupid enough to propose something so ripe for abuse it’s rotting before if falls from the tree.

  18. Re: Doug Webb
    Doug I’m pretty sure the Liberals proposed this exact same legislation four years ago, but the Martin government fell before it could be voted on. I would hope that two successive electoral defeats and subsequent changes in leadership have smartened them up a bit, but I wouldn’t count on it.

  19. CP stands for 2 distasteful things says:

    A conservative MP that is totally full of bullsh*t? I’m not surprised.

  20. Hardly Anonymous says:

    They are already sniffing your traffic, they just don’t admit it
    We should be moving in the opposite direction. We should require two or three warrents obtained from different judges for any law enforcement action.

    And by the way, all Canadian internet communication is being spied on without a warrent, RIGHT NOW. By CSIS. I know for a fact that have installed systems in several major ISPs, and I have personally seen the equipment.

    What they are trying to do is make what they have already done legal. And probably better fund it to make it even more intrusive.

    Wake up Canada!

  21. Van Loan is my MP, what can I say
    I really don’t know what to say, but this saddens me. He’s also said in the past that IP’s are like street addresses (or maybe it was phone numbers), and linking them to a person is no different than looking up a person in a phone book.

    This is not true. You don’t leave your name or your phone number everywhere you go, like what happens with IP addresses whenever you visit websites.
    Does VanLoan no understand the differences? Was he simply trying to explain the issue with a simple analogy at the expense of accuracy? Was he misquoted?

    I get little messages from his office in the mail once in a while, saying things like “who do you think is keeping you safe from criminals?” “harper, ignatieff, layton, etc” and I suppose he wants you to check one off and send it back to him, or maybe it’s just a rhetorical question. I don’t understand it anyway. I surely don’t see any of them patrolling the streets, and I doubt they even hear of much of what the police is doing.

    I wonder what he has to say Geist’s revelation? Has anyone actually done an investigation into cases that involved police wanting to get a customer’s info from an ISP where they couldn’t in good time?

    I also recall hearing that this new law would force ISPs to give out info to police w/o a warrant. Is that true? Was it ever?

  22. John Smith says:

    If anyone thinks it wouldn’t be any different under the Liberals or NDP, you’re dreaming.

    Ignatieff is no less Tory than Harper and his coterie of right-wing “law and order” zealots. And Layton’s leanings are no less fascist for being less visible because the NDP is perpetually the also-rans. (And Britain, under Labour, is a police state in everything but name.)

    It will only get worse, no matter which so-called political party is in power. Get used to it.

  23. great wars require great sacrifices
    Society will destroy itself fighting the pedophiles, er, I mean terrorists.

  24. Why is it that every “minister” who seems like he or she is a shady bastard turns out to be a shady bastard? And, how are these people elected in the first place? Why are Canadians so stupid and complacent? When with this change?

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