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Michael Geist reports that lawful access is back on the legislative agenda in Ottawa. And — surprise, surprise — both the Liberals and the Conservatives are backing it:

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.

In that Globe and Mail article, Peter Van Loan justifies the proposal as follows:

“If somebody’s engaging in illegal activities on the Internet, whether it be exploitation of children, distributing illegal child pornography, conducting some kind of fraud, simple things like getting username and address should be fairly standard, simple practice. We need to provide police with tools to be able to get that information so that they can carry out these investigations.”

Mr. Van Loan said there have been situations where the police want to act quickly to stop a crime, but can’t because of the current laws.

“In some of these cases, time is of the essence,” he said. “If you find a situation where a child is being exploited live online at that time — and that situation has arisen before — police services have had good co-operation with a lot of Internet service providers, but there are some that aren’t so co-operative.”

Sure. Remember all those cases where the cops were watching some evil pedophile abuse a helpless child live on the Internet, but those dastardly ISPs were refusing to help them out because they don’t care about poor innocent children, or something?

Oh, wait. The one time that happened, the ISP gave the cops what they needed and they arrested the guy two hours later.

The Conservatives say that their bill would require cops and spies to get a court order of some kind. But there are different kinds of court orders, and it’s not yet clear what sort of evidentiary standards will be required. One of the many objections to the original lawful access proposals, way back in 2002, was that the cops and spies wanted a very low standard of evidence, which would substantially reduce our freedom from search and seizure (section 8 of the Charter of Rights and Freedoms).

What? You don’t remember the lawful access proposals of 2002? Okay, then. Here’s a brief history of lawful access in Canada:

• In the mid-1990s, cops and spies began lobbying Jean Chretien’s Liberal government for increased powers of surveillance. They said they just couldn’t keep up with all this new-fangled technology and needed “lawful access” legislation to make up for it. Critics objected that the police proposals would entail a drastic expansion of the state’s power to spy on its citizens.
• In 2002, the Liberals held a round of public consultations on lawful access. They encountered strong objections from the telcos, who hated the costs it would impose on them, and from civil society groups. The effort was postponed.
• In 2005, there was a second round of consultations. This time, the Liberals tried a divide-and-conquer strategy: they met separately with the telcos to deal with their concerns and held a laughably short two-week consultation with the general public. After all, if you can get big business on your side, who cares what civil society thinks?
• Following those consultations, the Liberals introduced the Modernization of Investigative Techniques Act, which contained less-controversial provisions like requiring telcos to make it technologically possible for cops and spies to intercept communications on their networks, and forcing them to give basic subscriber information to cops and spies without a warrant (as opposed to, say, requiring them to keep copies of actual communications for a period of time). Fortunately, the bill died when Paul Martin’s government fell.
• In 2007, Liberal MP Marlene Jennings reintroduced the Modernization of Investigative Techniques Act as a private member’s bill. As usual with such bills, it went nowhere.
• Later that year, the Conservatives launched a new consultation on lawful access — deliberately excluding the public from the process altogether. During the resulting controversy, Stockwell Day attempted to mollify public opposition by saying, “We have not and we will not be proposing legislation to grant police the power to get information from internet companies without a warrant.” Meanwhile, the National Post complains that words get in the way of saving children.
• Now, in 2009, we’ve got a Conservative government giving the same old song and dance routine about pedophiles and ticking time bombs and technologically inept cops — and Marlene Jennings reintroducing her reintroduction of a failed Liberal bill from the Paul Martin era.

In short, successive Canadian governments have been trying to pass lawful access legislation for seven years. They’ve failed, partly because electoral politics got in the way, but also because civil society groups have strongly and consistently objected to unnecessary expansions of state surveillance powers. Fundamentally, though, the Liberals and Conservatives are in agreement on this issue — which means it’s only a matter of time before the cops and spies get their way, and we lose a little more of our freedom.

Marc Lee peers into the future and sees Steven Harper’s Economic Advisory Council calling for tax cuts:

OK, there has been no such call. Yet. But mark my words, this panel will call for tax cuts as the federal government’s fiscal stimulus, and the government will deliver.

The Economic Advisory Council is not exactly a representative group. No labour representation, no Aboriginal reps, no one from the social or non-profit sector whatsoever. Thus, the groups most likely to be affected by the recession have no voice on this panel.

Here’s a list of the council members. With two exceptions, they’re all big business bigwigs — and the exceptions are Gordon Campbell’s former Finance Minister and an ex-head of the CD Howe Institute. Marc Lee points out that four of them are multi-billionaires. I mean, Jim freaking Pattison is a member.

People like them created the current economic crisis. People like them aren’t going to be hurt by it. So why is the government that “represents” us listening to people like them, instead of people like us — people who are going to be hurt by the recession?

Whose interests are being represented here?

(Originally posted, with minor changes, to The Information Policy Blog.)

Finland’s initiative to block access to child porn sites is also blocking over 1,000 legitimate websites — including one belonging to a vocal critic of Finnish censorship.

The initiative is the result of a law passed in 2006 to filter foreign sites containing child porn. Finland’s national police force maintains a secret list of sites that contain, or link to, content that they consider to be child porn. When they find a site, they add its IP address to their list — thus blocking, not only the offending site, but also any other sites on the same web server. (For more details, check out this excellent overview of the censorship process.)

“But that’s Finland,” you’re thinking. “Who cares about Finland?”

Alas, much the same thing happens in Canada. Project Cleanfeed manages a list of sites that it classifies as child porn. The list is kept secret from the general public, but the major Canadian ISPs — Shaw, Telus, Rogers, Bell, MTS Allstream, SaskTel, and Videotron — all use it to filter your Internet access.

There are all sorts of problems with the project. The group that manages Project Cleanfeed has a good reputation, but as Cory Doctorow has pointed out, secret lists are ripe for abuse. (Remember, the Finnish police are using a very similar process to block a vocal critic of their censorship practices.) There is an appeal process, but it’s overseen by the same organization that blocked the site in the first place, and you can’t appeal if you don’t know that your site is on the secret list.

The ISPs’ participation also sets a bad precedent, since it means that they are acting as monitors of site content, rather than as neutral common carriers. And if they’re already blocking some types of content, what’s to stop them from blocking other types of content? In fact, as I understand it, by violating their own neutrality, they may be legally liable for their failure to block other types of illegal or objectionable content. For those of us who support net neutrality, this is obviously of some concern.

(I wrote about Project Cleanfeed in more detail back in 2006, when the project first got underway.)

(Updated. See below.)

The Canadian government has begun another consultation process on lawful access. This one focuses specifically on access to basic telco customer information — names, addresses, phone numbers, email addresses, and IP addresses.

What’s interesting is that they’re doing it quietly, and trying to keep civil society groups out of the loop. From the same CBC article:

Michael Geist, chair of internet and e-commerce law at the University of Ottawa, said the process is not being conducted publicly as two previous consultations have been, in 2002 and in 2005.

The consultation has not been published in the Canada Gazette, where such documents are normally publicized, or on the agencies’ websites.

Interested parties have been given until Sept. 27 to submit their comments, which is a short consultation time, Geist said. Several organizations and individuals contacted by CBCNews.ca only received their documents this week.

On his blog, Geist adds that he “was asked not to post [the consultation documents] online.”

Back to the CBC article:

More pointedly, a number of parties that took part in the previous consultations, including privacy and civil liberty advocates — and even some telecommunication service providers — have not been made aware of the discussion, he said.

“It’s really disturbing particularly in light of the fact that they’ve had two prior consultations on lawful access in the past, so it’s not as if they don’t know the parties that are engaged on this issue,” Geist said.

Officials with the Canadian Civil Liberties Association were not aware of the consultation.

To those of us who have been following the lawful access issue, this is not surprising. The first round of lawful access consultations in 2002 faced heavy objections from privacy and civil liberties advocates (not to mention telcos who felt lawful access was an excessive burden on their operations). A second round of consultations took place in 2005, but as I have mentioned before, “civil society groups got one meeting in which the proposals were outlined for them, and then a laughably short two-week window in which to submit their comments.”

Also, keep in mind that the basic customer information being discussed in the current consultation is just the first phase of lawful access. The original consultation also looked at far more frightening possibilities like data retention and access to information related to the actual content of your activities online (e.g., what sites you visit and what’s in the emails you send). In 2005, when the Liberal government introduced its so-called Modernization of Investigative Techniques Act, it only included less serious first-phase proposals like the ones under discussion in the current consultation. (They tried the same thing with a private member’s bill last March.)

So, to recap:

• Canada’s cops and spies want more power to spy on you online.
• The Conservative government is helping them by sidelining civil society’s objections, while working closely with the telco industry (and the cops and spies).
• The Liberals did the same thing when they were in power.
• If our cops and spies get access to basic subscriber information — and they probably will, since both the Liberals and the Conservatives support the idea — they will be coming back to ask for expanded and more intrusive powers.

UPDATE, September 13: CTV has posted the consultation document (PDF) on their website.

UPDATE, September 19: That peculiar noise you heard late last week was the sound of the Conservative government backpedaling furiously:

Public Safety Minister Stockwell Day said the government would not introduce legislation forcing internet service providers to give customer information without a warrant.

“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,” Day told the Ottawa Citizen late Thursday.

“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.”

I’m glad to hear it. Let’s make sure they stick to this promise.

As for that leaked consultation document:

Day told the Citizen that the original document sent to a select group of stakeholders “never would have gone out if I had seen it” and that it “somehow went out without my approval.”

In other words, either our Public Safety Minister is incompetent, or significant erosions of due process don’t merit his attention.

The new deadline for public comment is October 12.

Canada’s Privacy Commissioner, Jennifer Stoddart, is concerned that Google’s new Street View feature could break Canada’s privacy laws.

Street View is a feature in Google Maps that displays street-level photographs for various cities in the US. It allows you to see what those cities look like “on the ground.” Unfortunately, the photographs in Street View include candid images of people who happened to be in the street while Google’s photographers were taking pictures.

Street View isn’t currently available for Canadian cities, but that could change. In her letter to Google, Stoddart wrote, “I am concerned that, if the Street View application were deployed in Canada, it might not comply with our federal privacy legislation. In particular, it does not appear to meet the basic requirements of knowledge, consent, and limited collection and use as set out in the legislation.”

Stoddart’s letter also points out that Immersive Media, the company that supplied Google with the photos it uses for Street View, has already collected similar photos for six major Canadian cities, including Vancouver.