When the government placed the Internet surveillance bill on the notice paper one week ago
, few would have predicted that within days of the introduction, the anger with the legislative proposals would have been so strong that the government would steadily backtrack on its plans, with Public Safety Minister Vic Toews yesterday telling the House of Commons the bill will go to committee before second reading to ensure that there is greater openness to amendments (changes are more restricted after second reading). While the battle is only beginning, the overwhelming negative reaction seems to have taken the government by surprise
There are undoubtedly many factors that led to the early successful fight against the bill. Toews’ outrageous comments on siding with child pornographers the day before the bill was even introduced placed the government on the defensive from the outset. The substance of the bill is genuinely bad as there is no need for hyperbole to explain the privacy threats that come from mandatory disclosure of personal information without court oversight. This is an issue that resonates with both sides of the political spectrum with criticism from Conservative MPs and supporters particularly telling.
Yet this time I think there is something more happening. Government ministers often make ill-advised comments, yet few sink support for legislation so quickly. Privacy is a major concern, but it rarely generates this level of interest (the Privacy Act has not been amended in over 30 years despite repeated efforts to do so and there are no protests over the delayed Bill C-12, the privacy reform bill, languishing in the House). There has been conservative criticism of other government initiatives, but it rarely generates such a quick reaction.
The “something more” is the Internet and how over the past month it has emerged as a powerful political force in North America and Europe.
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With the government now said to be “retreating”
from its initial position on the Internet surveillance bill – Public Safety Minister Vic Toews says the government will entertain amendments – the starting point should be to stop misleading on the privacy concerns associated with subscriber data. Concerns about warrantless access to subscriber information such as email and IP addresses have been at the forefront of the Bill C-30 criticism, but the government persists in claiming this information is “the modern day equivalent of the phone book.” According to the Public Safety talking points
on the bill:
Myth: Basic subscriber information is way beyond “phone book information”.
Fact: The basic subscriber information described in the proposed legislation is the modern day equivalent of information that is accessed from the phone book. These identifiers are often searchable online and shared between individuals in online communications.
The government persists in justifying its mandatory disclosure of subscriber information without a warrant on the basis that the information is as openly available the phone book, yet this is plainly untrue.
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I appeared on CBC’s The Current to discuss the Bill C-30, the Cyber Surveillance Bill and in particular warrantless access to internet subscriber information. This segment included Paul Gillespie. Audio can be found here.
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The launch of Bill C-30
, the online surveillance legislation dubbed the Protecting Children from Internet Predators Act, went about as expected with the government taken to task with big brother imagery (“Say Hello to Big Brother Government
“) and criticism over the lack of evidence (“Conservatives hew to common sense save for bizarre crime fixation
“), the security threats (“Online surveillance bill will be â€˜a gold mine’ for hackers: Ontario privacy commissioner
“), and the absence of a thoughtful digital vision (“Canada’s embarrassing failure on lawful access legislation
“). The divisive comments
from Public Safety Minister Vic Toews seemed to shape much of the dialogue, serving to ratchet up the rhetoric and overshadow both the modest changes to the bill and the legitimate remaining concerns of many Canadians.
I did a large number of interviews with print, radio (the As It Happens interview covers many of the concerns), and television (CBC, CTV, and Global) and was left wondering whether there is a compromise to be had in an environment where the Conservative majority government can obviously pass the bill but only at a significant political cost given public opinion. I may be naive, but I think it is possible.
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Public Safety Minister Vic Toews is expected to introduce lawful access legislation tomorrow in the House of Commons. An Act to enact the Investigating and Preventing Criminal Electronic Communications Act and to amend the Criminal Code and others Acts, likely to be Bill C-30, will mark the return of lawful access in a single legislative package. While it is certainly possible for a surprise, the bill is expected to largely mirror the last lawful access bills (C-50, 51, and 52) that died on the order paper with the election last spring.
This long post tries to address many of the most common questions and misconceptions about lawful access in Canada. The questions and answers are:
- What is lawful access?
- What is Bill C-30 likely to contain?
- Isn’t ISP customer name and address information similar to phone book data that is readily available to the public without privacy concerns? (first prong)
- Isn’t the mandatory disclosure of ISP customer information necessary for police investigations? (first prong)
- Didn’t former Public Safety Minister Stockwell Day pledge not to introduce mandatory disclosure of ISP customer information without court oversight? (first prong)
- Who pays for the surveillance infrastructure required by lawful access? (second prong)
- Does lawful access create a new regulatory framework for the Internet? (second prong)
- Does lawful access create new police powers? (third prong)
- Does opposing lawful access mean questioning the integrity of law enforcement?
- Don’t other countries have the same lawful access rules as those found in Canada?
- What do Canada’s privacy commissioners think about lawful access?
- Are these lawful access proposal constitutional?
- Does the government seem somewhat inconsistent on its crime and privacy policies?
- Where can I learn more about lawful access and what can I do?
Update: Bill C-30 was introduced on February 14, 2012. One important change from the last bill to the current bill is that the list of data points subject to mandatory disclosure without court oversight has shrunk from 11 to six. The IMEI numbers, discussed further below, are no longer on the list.
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