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Privacy commissioner questions “lawful access” bill in letter to Standing Committee on Public Safety

The Harper government wants to give police and other security officers in Canada the right to snoop around your computer without getting a warrant. It’s totally unnecessary, designed more to convince U.S. and other international buddies that we’re serious about security in this country. But don’t take my word for it. Here’s Canada’s federal privacy commissioner in a letter to the Standing Commission on Public Safety this week:

“Though isolated anecdotes abound, and extreme incidents are generally referred to, no systematic case has yet been made that demonstrates a need to circumvent the current legal regime for judicial authorization to obtain personal information. Before all else, law enforcement and national security authorities need to explain how the current provisions on judicial warrants do not meet their needs.”

The Council of Canadians is following the movement of Bills C-46 (The Investigative Powers for the 21st Century Act) and C-47 (The Technical Assistance for Law Enforcement in the 21st Century Act) — who comes up with these names? — through the House of Commons with concern. The proposed laws are invasive, unnecessary and suspiciously conducive to removing legal and regulatory impediments to more information sharing with U.S., European and other foreign security services.

For details on C-47 and C-46, see the Canadian Internet Policy and Public Interest Clinic (CIPPIC) descriptions. To summarize, for former will legally force Internet service providers (ISPs) to build intercept capabilities into their systems, which the police can then access. Some ISPs can already do this but others are concerned about the cost of installing interceptors.

Bill C-46 is summarized as follows in an in-depth Montreal Gazette article about “lawful access” and related privacy issues, in which they write the bill:

– “allows enforcement agencies to require service providers to preserve all communications and data of any client named”

and

– “creates production orders that are similar to search warrants, but require the third-party service provider to retrieve the data.”

University if Ottawa law professor and online privacy expert Michael Geist has shown, through access to information requests, that the Harper government’s case for these new police powers is exaggerated and partly based on false claims by Public Safety Minister Van Loan.

“Van Loan argues that the changes are long overdue, pointing to a kidnapping case in Vancouver earlier this year as evidence of the need for legislative change,” writes Geist. “In several interviews, he has described witnessing an emergency situation in which Vancouver police waited 36 hours to get the information they needed in order to obtain a warrant for customer name and address information…

“However, in an admission that goes to the heart of Van Loan’s claims, a legal adviser disclosed that no ISP records were sought during the investigation. In other words, the case the minister of public safety has presented as evidence of the need for mandatory disclosure of ISP customer records never involved a request for such records and yielded an arrest using the current law.”

Another reason to question this legislation, even if you feel that police should have the authority to acquire personal information in an emergecny, without a warrant, is that THEY CAN ALREADY DO THIS (see privacy commissioner’s letter, linked above). Groups like the B.C. Civil Liberties Association and others are concerned that what Canada’s police and security agencies really want is the right to go fishing for evidence they don’t have or don’t know they need.

The news powers could also be used to develop profiles on individuals who have nothing to do with crime but who nonetheless are of interest to police — like Vancouver residents who don’t like the Olympics.

Put at its simplest, Canada wants to pass “lawful access” legislation so it can continue to hang out with the cool kids (or who our government considers cool) on the international stage. Privacy and civil liberties are so ten years ago for established or emerging police states England, the U.S. and the European Union.