Minister Toews has tabled the much vilified Investigating and Preventing Criminal Electronic Communications Act, a bill that provides additional powers to law enforcement to obtain information from Internet providers, at times without warrant. The Bill is flawed because it makes the ISP providers agents of the police to facilitate the detection of crime, not only child pornography or Internet fraud but for all law enforcement purposes.
Warrants are not a mere administrative hurdle or nuisance for police. They constitute a fundamental safeguard against potential abuse. They serve to ensure that there is an objective assessment of the need for the police to search and obtain private information. The Bill replaces the judicial pre-authorization of the warrant with a decision-making power within the police force. This is very dangerous. Despite the best of intentions, police officers are ill-placed to balance the need for privacy with the necessity of a search for their colleagues.
Institutionally, this is not the right way to do it. We risk normalizing the practice of obtaining Internet identification, not only for suspects but for everyone having an interaction with the police: witnesses or potential jurors. One can easily imagine that nosy journalists, critics of the police, or even politicians that are debating budget for the police could be subject to cyber-surveillance if there is no judicial oversight. Demanding respect for warrants and for judicial pre-authorizations is not being anti-police, or pro-child pornographers, it is demanding that police be provided with power that have sufficient safeguards to be legitimately exercised. It is being pro-democracy. We should not expand police powers without accountability.
In a way, the government is asking us to sacrifice our privacy in fundamental ways to facilitate police work. But privacy is not a luxury. It is fundamental to democratic life because it reinforces basic principles: that governments’ interventions into peoples’ lives should be limited by law and done only when necessary; that individuals have choices as to how much or how little they want to disclose about themselves to others. Privacy is also about preserving the capacity to innovate and dissent. It is not only an individual right but also a social good. Societies with little and no privacy are less innovative and less daring in their thoughts, ideas, or artistic expression. Without even a virtual room of one’s own, people may not be able to challenge social norms, to debate or criticize. Without proper safeguards, why should we give police the powers to know who is criticizing them on the web?
There are many ways that the Bill could be targeted more reasonably: it could be limited to the very serious crimes (child pornography or Internet fraud), it could provide for notice to third parties as is done in wiretap, it could have after the fact reporting or audits to ensure that the power is not abused, and it should absolutely maintain the need for warrants, except in exigent circumstances. There are avenues for compromises here and the government should take them.
Nathalie Des Rosiers is the Canadian Civil Liberties Association’s general counsel.