The government’s plans to include lawful access provisions within its omnibus crime bill has attracted mounting attention in recent days as many commentators express concern that the legislation could create criminal liability for linking to content that incites hatred and for using anonymous or false names online. The concerns started at the Free Dominion site and have since spread to Brian Lilley at the Toronto Sun and Jesse Brown’s blog at Maclean’s. 

As I have argued for a long time, there are many reasons to be concerned with lawful access. The government has never provided adequate evidence on the need for it, it has never been subject to committee review, it would mandate disclosure of some personal information without court oversight, it would establish a massive ISP regulatory process (including employee background checks), it would install broad new surveillance technologies, and it would cost millions (without a sense of who actually pays). Given these problems, it is not surprising to find that every privacy commissioner in Canada has signed a joint letter expressing their concerns.

Yet while lawful access raises many issues (such that it clearly does not belong in an omnibus bill placed on the fast track), I do not believe that creating criminal liability for linking or anonymous speech are among them.

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