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An Ontario superior court has ruled that there is no reasonable expectation of privacy to subscriber information. If cops have your IP address, the judge says, they don’t need a warrant to get your name and physical address from your ISP.

Not surprisingly, the judge’s ruling is based on a faulty understanding of how the Internet works:

Judge Leitch accepted the arguments of Crown attorney Elizabeth Maguire that the information is similar to what is in a phone book.

“One’s name and address or the name and address of your spouse are not biographical information one expects would be kept private from the state,” Judge Leitch said.

But an IP address is not biographical information. It doesn’t identify me, it identifies my computer on a network. It’s also visible to every website I visit — and the sites I visit, like the books I check out of the library, should be kept private from the state (in the absence of a warrant). Why? Because they reveal a lot of personal information about me, including some information that I would consider no one’s business but mine. If an IP address were biographical information, that would mean you were giving your name and physical address to every website you visit … and I think most people would find that disturbing. Which means there is a reasonable expectation of privacy, quite literally: most people think, quite reasonably, that their online activities should be private.

I wonder how this decision will affect the Conservatives’ forthcoming lawful access bill.

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.

(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.

That was fast! On Friday, the Liberals introduced their private member’s bill on lawful access. It’s Bill C-416, the Modernization of Investigative Techniques Act.

Michael Geist reports that the Liberals plan on reintroducing lawful access by means of a private member’s bill. The move is part of the Liberals’ effort to appear “tough on crime” in advance of an anticipated spring election. My hunch is that, unless an election interferes, the Tories will either support the bill or try to steal the Liberals’ thunder with proposals of their own.

Geist quotes this speech by Liberal leader Stephane Dion:

Marlene Jennings, the Liberal justice critic, is re-introducing the Modernization of Investigative Techniques Act. This bill will allow the police and Canadian intelligence community to adapt to new communications technology. Telephone and Internet service providers will be required, subject to vigorous privacy safeguards, to include an interception capability in new technology, and make subscriber contact information available on request to designated law enforcement officials. This act strikes the right balance between the needs of police and industry, while respecting Canadians’ right to privacy.

That last sentence in particular makes me snicker. Note how citizens’ interests are an afterthought: it’s police and telecom interests that are the priority here, as usual for lawful access policy. (In the last round of stakeholder consultations, for example, business interests got plenty of input into the lawful access policy proposals. By contrast, 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.)

I’ll have a more substantive post on lawful access — what it is, what’s wrong with it, and past attempts to legislate it — in the near future.