Why The Government’s Lawful Access Claims Stand on a Shaky Foundation

Early next year the government will introduce lawful access legislation featuring new information disclosure requirements for Internet providers, the installation of mandated surveillance technologies, and creation of new police powers. Public Safety Minister Vic Toews, the chief proponent of the new law, has defended the plans, stating that opponents are putting “the rights of child pornographers and organized crime ahead of the rights of law-abiding citizens.”

My weekly technology law column (Toronto Star version, homepage version) notes that Toews’ stance in the face of widespread criticism from the privacy community and opposition parties is likely to be accompanied by a series of shaky justifications for the legislation.

For example, the bill will mandate the disclosure of Internet provider customer information without court oversight – that is, without a warrant. Under current privacy laws, providers may voluntarily disclose customer information but are not required to do so.  Toews has argued that the mandated information is akin to “phone book data” that is typically publicly available without restriction.

Yet the legislation extends far beyond phone book information by requiring the disclosure of eleven different items including customer name, address, phone number, email address, Internet protocol address, and a series of device identification numbers. Many Canadian courts have recognized the privacy interests associated with this data.

In fact, it isn’t only Canadian courts, privacy commissioners, and civil liberties groups that believe striking the right balance on the issue necessitates requiring a warrant. Former Conservative Public Safety Minister Stockwell Day stated in 2007 that “we have not and we will not be proposing legislation to grant police the power to get information from Internet companies without a warrant. That’s never been a proposal. It may make some investigations more difficult, but our expectation is rights to our privacy are such that we do not plan, nor will we have in place, something that would allow the police to get that information.”

Toews will also claim the changes are necessary to ensure that Canadian law enforcement has the tools it needs to combat online crime threats. While everyone agrees that the law must stay up-to-date with emerging technologies, neither the government nor law enforcement has provided credible evidence demonstrating how the current law has impeded active investigations.

One of the only attempts at providing evidence came in 2009 from Toews’ predecessor, former Conservative Public Safety Minister Peter Van Loan. Van Loan pointed to a 2009 kidnapping case in Vancouver as evidence of the need for legislative change, describing 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. That sounds like a credible case, but according to documents obtained under access to information, no Internet provider records were actually sought during the investigation.

While Toews will focus on the need to address online threats, he will likely avoid admitting that lawful access will come at an enormous cost. Some smaller Internet providers have warned that they may be forced to shut down if faced with requirements to install costly surveillance technologies with no ability to recoup the investment. Lawful access would not only lead to lost jobs at the affected companies, but the loss of competition could lead to higher Internet costs for all Canadians at the very time Industry Minister Christian Paradis has promised “globally competitive prices for consumers.”

Canadians deserve better than deceptive claims and divisive name-calling. 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 lawful access is needed.


  1. We Already Know
    The bill’s purpose is to target people suspected of piracy. They use the other reasons as a label to it seems like what they’re doing is noble so the people will support it and not worry about their personal information. You won’t see an increase in child pornography arrests or organized crime groups being taken down but you will see an increase in piracy related cases.
    It’s control. They want to control the public. They know that if we know they’re watching then we won’t download or upload.

    And the word “crime” is used loosely. The “crime” they mean is the piracy, not the other one’s that hardly exist in comparison. Then when it’s brought up they can say “Oh, piracy is a ‘crime’.”

  2. If the government can afford to build mega jails they should also be able to afford to pay for the infrastructure costs to catch the perpetrators of the heinous crimes mentioned such as child pornography. Assuming that is their actual goal.

    If their intention is to please foreign governments requests and at the same time stifle small ISP operators from impacting the large telcos bottom line … but no, that would be just too ridiculous an assumption 0_o

  3. Well it looks like the tauries are being stupid on crime again…

  4. C-11 + Lawful access
    I’ve said a number of times that C-11 is useless and unenforceable. “Un”Lawful access is the enforcement end of it. It has nothing to do with and has never had anything to do with kiddy-p0rn peddlers or organized crime. These people are generally smart enough to use technologies that make it preventatively expensive and/or impossible to track them. Laws and ISP cooperation are already in place. Currently, no ISP will deny an information request if one of their users is suspected of something so heinous as child-p0rn but most will deny requests, and rightly so, if copyright trolls are going after their users en-masse based solely on IP information. “Lawful Access” is nothing more than another piece of garbage American-based legislation to legalize and make convenient, copyright trolling.

  5. Nice analogy. What Mr. Toews forgot to mention is that:

    1. You can opt out from being listed in the phone book. I’ll take Mr. Toews law if it provides a similar mechanisms for IP addresses.

    2. The IP address can be faked exactly like a Caller ID can be. So maybe I should call Mr. Toews via VoIP, with a “Stephen Harper” caller ID and tell him to drop this law. He would believe me I’m Stephen, wouldn’t he?

  6. Napalm forgot to mention that there’s also:

    3. A mechanism that allows you to *not* send your phone number via Caller ID when initiating a call.

    Mr. Toews, please add this option to the internet too.

  7. .,..,…,.
    Happy New Year…. I think not.

    God Bless Americanada!

  8. Think of the children
    When you can’t otherwise justify a law:

    Step 1) Figure out how to connect it with the security of children
    Step 2) Label opponents as pro-pedophilia
    Step 3) Profit!

  9. The true purpose of lawful access: a shift in the balance of power.
    Once the government has this power, their first targets will be investigative journalists, suspected and potential whistleblowers, political opponents, critics, and others who might leave an internet trail of activity that reveals their attempts to expose wrongdoing by police and government officials.

    This is the true purpose of “lawful access” legislation. Copyright, terrorism and porn are just what they are using to sell it.

  10. Let’s pretend that it’s 1984 and we’re bombarded with news of wars all around us. Let’s pretend this is England with 1 million cameras in the streets. Let’s pretend that we have a Bill of Rights that guarantees our right to be free from government intrusion. ” (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;….. Oh yeah, they can add an “Act” to further dilute this worthless piece of toilet paper… The only solution is world revolution. Good luck Canada cause he who controls fiat money controls all.