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.