On February 14 2012, the government unveiled Bill C-30 or the “Protecting Children from Internet Predators Act”
While the government claims this bill targets criminals and child pornographers, in fact its provisions will impact the privacy rights of all Canadians who use computers, cell phones, GPS devices, and the Internet.
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CCLA has serious privacy concerns regarding the new online surveillance legislation, which gives law enforcement more powers to access, track and monitor a host of online and wireless information. The government argues that Canadian law enforcement must have investigative tools that are equipped to deal with 21st century technologies. We can all agree that this is true. Investigative tools without accompanying oversight such as warrants, however, is not what we need. CCLA will be asking that the government not throw away hard-won protections for individual privacy and essential police oversight mechanisms. There are good reasons to require the police to obtain warrants and seek judicial oversight before invading individual privacy. The advent of the Internet, email, cell phones and smart phones has not changed Canadians’ basic rights to privacy and freedom from unwarranted government surveillance.
Three principles for any new ‘lawful access’ legislation
1. Want to access my personal, private information? Get a warrant.
Previous versions of the government legislation have given the police warrantless access to “subscriber” information held by cell phone companies and internet service providers. This would enable police to link a named individual with a cell phone number, email address and IP address among other things. This information, which is not normally publicly accessible, would allow police to do things like link an individual to an otherwise anonymous online comment or internet browsing history.
There are a number of common sense exceptions to the requirement to get a warrant, including emergency situations of health and safety or the preservation of evidence. These flexibilities should continue to apply to searches and seizures of digital information. However, the basic principle should be that a warrant is necessary to access private information.
2. Want to secretly track where I have gone online, who I email, or follow me using my GPS or cell phone? Get a true and meaningful warrant, make sure such techniques are truly necessary, and reserve the most intrusive tracking for investigations of serious crimes.
Normally, in order to get a warrant the police must satisfy a judge that there are “reasonable and probable grounds” to believe that an offence has been committed and that there is evidence to be found at the place of the search. Through previous lawful access bills, however, the government tried to introduce a host of search, seizure and tracking powers that would be available on a lower standard – either “reasonable belief”, or the even lower threshold of “reasonable suspicion”.
For example, suspicion-based warrants would authorize law enforcement to preserve and receive information about internet and cell phone traffic data – what web sites I visit, how often and for how long, who emails me, who I email, etc. These ‘digital trails’ can be stored by various service providers for weeks, months or even years, revealing a long, detailed and comprehensive picture of online activity. Suspicion-based warrants would also have allowed remote live tracking of vehicles and other things, and belief-based warrants would allow the remote live tracking of individuals through monitoring the location of their cell phones or other things they usually wear or carry. Such techniques have the potential to reveal a great deal of information about who I am, what I believe, where I go and who I speak to. Their use must be carefully overseen through full prior judicial scrutiny based on reasonable and probable grounds. The most intrusive searches and tracking should only be employed when truly necessary, and should be reserved for investigations into serious crimes.
3. New powers must be accompanied by new safeguards
Most of the new search and tracking powers envisioned in ‘lawful access’ legislation are surreptitious. Unlike a traditional police search of a home, targeted individuals and others who are incidentally monitored would have no way of knowing that their privacy had be invaded. Applications for search warrants, while important safeguards, necessarily occur without the knowledge or participation of the impacted individuals. While previous versions of the bills did incorporate some reporting and notification requirements, they did not go far enough. Surveillance and tracking technologies raise a host of highly complex technical issues situated in a rapidly-advancing field. As a society, Canada must have a serious discussion about how we can effectively oversee any new search powers. New and expanded powers, without new or expanded oversight, is a recipe for abuse and chaos.
Learn more about the issue
Read the Bills: Read the text of Bill C30 and the government’s plain language description of the bill.
Read FAQs: Check out Michael Geist’s Everything You Always Wanted to Know About Lawful Access, But Were (Understandably) Afraid To Ask, the CBC’s Lawful access FAQs: Clearing confusion about ‘surveillance’ proposals, CIPPIC’s FAQ and the Ontario Privacy Commissioner’s information about the previous (but substantially similar) round of legislative proposals.
Nathalie Des Rosiers at Beware of “Surveillance by Design” Symposium (January 2012)
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