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Bill C-30 and Beyond the Border: Is information gathered information shared with the U.S.?

Bill C-30, Harper’s controversial online spying legislation, heads to the Public Safety Committee on Monday for review. Minister Vic Toews backtracked from his “your either with us or with the child pornographers” statement by suggesting the government is open to amendments.

On Friday, one of the bill’s most vocal critics, Michael Geist, posted a 12-point to-do list on his blog, including–a big one–“no mandatory warrantless access to subscriber data such as name, address, phone number, email address and IP address. This information is not “just numbers” but can be used to develop detailed profiles of an Internet user’s life, according to Ontario Privacy Commissioner Ann Cavoukian.

“Once you have something like an IP address or some other number, that can facilitate connection with other pieces of information: websites that you visit, what activities you’re engage in, what sites you surf, what you read, the videos you look at, who you connect with. It’s these kinds of connections, these data linkages that can form a very detailed personal profile that can be extremely revealing,” she told Postmedia news on February 15.

“The police can do this on law-abiding citizens. They don’t have to make the case that there’s been an infraction here and they go before a judge to make the case and get a warrant. I have no problem with them going after the bad guys – of course not. I want them to do that. But that is not what warrantless access entails.”

A key argument against the new measures is that they are probably not necessary. Already Canadian police agencies can get the online user data they need in a crunch when they suspect criminal activity. What they’re looking for is the ability to snoop around prior having the evidence they would normally need to get a warrant. The government says this would bring Canadian law enforcement in line with U.S. and European norms, as if that’s any consolation.

There’s some evidence from the new Harper-Obama border pact that peer pressure from the U.S. in particular is a driving force behind Bill C-30, along the lines of “if you’re not snooping, your not safe.”

The Beyond the Border Action Plan announced in December commits to enhanced information sharing in support of law enforcement and national security, under the overall objective of developing a “common approach to assessing threats and identifying those who pose a risk, under the principle that a threat to either country represents a threat to both.” Among the next steps in this category are:

– Addressing agency policies that may improve information sharing, including by developing clear channels or mechanisms for cross-border sharing of intelligence and information;

– Promoting increased informal sharing of law-enforcement intelligence, information and evidence through police and prosecutorial channels consistent with the respective domestic laws of each country; and

– Examining whether current frameworks should be changed to address impediments to cooperation and to ensure that the terms of applicable laws, agreements and treaties provide the widest measure of cooperation possible.

According to the plan, the two governments where by January 31 this year to have met to “determine the way ahead.” Embassy magazine reported there is little evidence to show this deadline has been met and if it has what was achieved. But there is no doubting that Harper’s new snooping powers would “address impediments to cooperation” with the U.S. by removing inconsistencies in legal frameworks across the border.

Keeping the debate focused on child pornographers, drug lords and terrorists, this might not seem that problematic. But a recent article in The Nation about unreasonable U.S. police requests for Twitter and other social media user details of Occupy movement participants, as well as Harper’s new anti-terrorism strategy, which includes the threat of environmentalist and other “issue-based extremism”, raise troubling questions about the amount of information being gathered and shared, informally as the border plan suggests, with foreign police and security agencies.

The Nation reported February 15 that a Manhattan District Attorney had subpoenaed the Twitter account of a man who took part in an Occupy Wall Street march across the Brooklyn Bridge on October 1 which was stopped by police. Over 700 people were arrested, including Malcolm Harris, a 23-year-old writer who was informed by Twitter that the police were asking for “any and all user information including e-mail address, as well as any and all tweets for the period 9/15/11-12/31/11.”

The article explains:

To prove the disorderly conduct charge against Harris requires the prosecution to establish only the allegations in the complaint-that is, that at the time and place of the arrest, he was present in the roadway and intentionally interfered with traffic. They would not need the contents of months of Tweets, including any private direct messages, and Harris’s e-mail address (which would then enable them to subpoena Harris’s e-mail service provider) to meet their burden of proof.

“Law enforcement appears to regularly be sending subpoenas to Twitter,” according to an ACLU attorney quoted in the article, which questions why a prosecutor would bother with this kind of snooping into such a minor offence. A New York defence attorney familiar with the case tell The Nation it could be “a fishing expedition meant to have a chilling effect on protest,” and that it is “prosecutorial abuse, an effort by the DA’s office to get into personal communications of these protesters, for the purpose of chilling their First Amendment rights.”

A taste of things to come under Canada’s new online spying regime? There seems to be nothing in its current form to guard against such misuses by police.

Geist’s 12 proposed amendments to Harper’s snooping bill would go a long way to improving it. Canada’s privacy commissioners are also lined up against some of its worst parts. The Office of the Privacy Commissioner of Canada said the bill is improved from previous incarnations but that over the coming weeks it will be reviewing C-30 to determine:

How the Government justifies this warrantless access in a free and democratic society?;

How does “after the fact” review by ministerial and non-judicial bodies compare with “up front” oversight by the courts?;

Whether the new powers proposed by the legislation are demonstrably necessary, proportionate and effective?; and

Are there less privacy-invasive alternatives to achieve the desired outcomes?

To all these concerns we should add the potential that information gathered will be information shared with any U.S. police department or security agency making a request. Bringing Canada’s policies in line with U.S. policing norms without putting in place checks and balances on when and how much information is shared with other countries goes against a fundamental recommendation of the Arar Commissioner. You can write to members of the Public Safety committee to let them know that proper study of Bill C-30, the online spying legislation, requires consideration of Canada’s commitments in the Beyond the Border Action plan around information sharing. Click here to find committee members and their email addresses.