Mediacheck

Toews Caves, Now What?

Searching for compromise amid the Internet snooping cacophony.

By Michael Geist, 21 Feb 2012, TheTyee.ca

Minister Vic Toews

Public Safety Minister Vic Toews: Where does he go from here?

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The introduction of Internet surveillance legislation last week generated an immediate storm of outrage. Fueled by Public Safety Minister Vic Toews' comments that critics of the legislation were "siding with child pornographers," the bill was slammed by commentators on both the right and the left who decried the dangers of new surveillance powers and mandatory disclosure of personal information without court oversight.

The public concern should not have come as a surprise. The push for new Internet surveillance capabilities goes back to 1999, when government officials began crafting proposals to institute new surveillance technologies within Canadian networks along with additional legal powers to access surveillance and subscriber information. There have been several attempts at passing lawful access legislation, but each has died on the order paper.

Within days, Toews and Prime Minister Stephen Harper were in retreat, stating they were open to amendments and promising a full committee hearing. Having opened the door to change, the big question now is whether compromise is possible. The bill is badly in need of fixing -- the oversight of surveillance capabilities remains underdeveloped, the costs associated with surveillance equipment is a giant question mark, and the fears of surveillance misuse based on the experience in other jurisdictions continues to cause concern.

Topping the list for change is the mandatory disclosure of Internet and telephone subscriber information without court oversight. With Internet providers and telecom companies complying with law enforcement requests roughly 95 per cent of the time, at issue are a relatively small number of cases that have required warrants prior to any disclosure. Despite 10 years of debate, law enforcement has failed to produce a compelling series of examples where the current law has proven problematic. Nevertheless, officials are adamant that they need greater assurances the information will be available expeditiously in appropriate circumstances.

Small gains already

The bill actually addresses two significant concerns associated with the warrantless disclosure issue. First, the prior lawful access bill included a very broad list of data points that could be disclosed, raising serious security concerns and the potential for misuse. The number of data points has shrunk from 11 to six. While some of the data points still constitute potentially sensitive personal information (particularly IP and email addresses), a smaller list is better than a larger one.

Second, with Internet providers and telecom companies providing subscriber data without a warrant 95 per cent of the time, there is a huge information disclosure issue with no reporting and no oversight. The RCMP alone made more than 28,000 requests for customer names and addresses in 2010. These requests go unreported as subscribers don't know their information has been disclosed and the Internet providers and telecom companies aren't talking either. The bill would add new reporting requirements to these disclosures, which should allow for insights into what providers and police are doing with subscriber information.

A possible way forward

The remaining issue is the inclusion of warrantless disclosure of the six data points. This strikes at a bedrock principle of privacy law and will be rightly opposed by the privacy and civil society community. Yet in talking with law enforcement, it is clear what they want is timely, guaranteed access in appropriate circumstances. They argue the current warrant system does not meet this standard nor do the current privacy rules.

But what if a new warrant specific to subscriber information could be developed? Such a warrant could feature a low threshold along with rapid authorization and lower costs. For law enforcement, it would provide the access they want, while for privacy advocates it would maintain the oversight principle.

Fixing the flawed Internet surveillance bill won't be easy. The starting point must surely be a moratorium on the inflammatory us-versus-them rhetoric from the government which fosters alienation rather than cooperation as Canadians search for solutions that provide both security and privacy. [Tyee]

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

18 Comments:

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  • miguel

    13 weeks ago

    Why?

    I can think of only one reason why police would want to evade court oversight of their activities.

    Any law that doesn't spell out what is or isn't within the law, will end up as years worth of court challenges.

  • Grouchy

    13 weeks ago

    Why?

    Miguel, you should also be alarmed that the Police Chiefs have come out in support of this bill as it stands. Something more than we can see is at foot when that happens. We all know how flimsy their reasons were for supporting the LG Registry were.We need to keep the spotlight on this bill and any changes that are reccomended.

  • PL1313

    13 weeks ago

    Read the Bill

    Vic Toews said he didn't read the bill before he introduced it, and subsequently went on to vehemently defend it.

    I expect much better from elected officials. Surely we can do better than this.

  • cboo44

    13 weeks ago

    Ministers Read Executive Summaries, NOT entire Bills

    And "journalists" just love to have their "Kaity Curic " moments. Yippee.
    This bill is a downsized version of the 2005 Liberal government bill that was agreed to by a multi-party committee. Where was the outrage in '05 ?
    Is there STILL concerns about this bill? Yup, so to committee it goes. A normal process, but not controversial enough to be a juicy media bit.
    In addition to some sections of this bill, my concern is that several manipulative web-saavy individuals generating massive online opposition purporting to represent the majority of Canadians. The anti-Harpo faction whines that a minority of Canadians are represented by this federal government, albeit previous Liberal governments were exactly the same, but the manipulation of public opinion with the use of mis- information is even more abhorrent.
    Seems to me that internet blogs are even less reliable than our despicable mainstream media. But somehow blogs are not being held accountable.

  • papad69

    13 weeks ago

    Where was the outrage in '05 ?

    Where was the outrage in '05 ?
    I think if you go back to 05 you don't have the amount of information available has you do now, EG: Facebook, Twitter, etc.
    If you look at just the amount of mobile internet use projected from 06 to 2015:
    2006 less than 1 million
    2015 14 million
    Currently 6 million
    Big difference in the number of people that are getting the information quickly.
    so if you agree with these figures quoted by the CRTC you might say that over 60% of internet and electronic users are now getting their information in a timely manner and there ability to react immediately. Which we didn't have in '05

  • snert

    13 weeks ago

    They don't need to fix the bill!!!!!

    "Fixing the flawed Internet surveillance bill won't be easy. The starting point must surely be a moratorium on the inflammatory us-versus-them rhetoric from the government which fosters alienation rather than cooperation as Canadians search for solutions that provide both security and privacy."

    Scrap it!!!!!

    Laws already exist to fulfill everything the bill purports to do. If the police are having trouble getting warrants then that is the area that needs repair. Maybe the bill should be dropped completely and a new one introduced that allows for more effective information gathering but warrant first then search.

    It seems to me that if ISPs and other communication companies are requested to monitor one or a small number of their customers for an extended period that it could be done with existing equipment. Forcing the expansion of unproductive data bases on all services is just plain silly.

  • citizen K

    13 weeks ago

    Pornography Bill

    My feeling about this bill is that, as is, it will function as a cover for surveillance of all groups, especially 'radical' environmentalists, who oppose the government's 'us versus them' agenda. Child pornography is a motherhood and apple pie issue which would function as a smokescreen to hide the Tories' true agenda. The pipeline is under threat right now and, along with a barrage of advertising about the virtues of the Enbridge pipeline, Harper's people would love to come up with information that could expose the personal lives of their supposed enemies and thereby weaken their resolve.

  • mainstradical

    13 weeks ago

    Scrap it!

    Scrap this bill, scrap C11 and put some people together who actually understand the internet to start talking about how it might be regulated.

    And include some penalties to ISPs who voluntarily disclose what should be confidential consumer information!
    I am sick of people trying to regulate the internet like it's the telephone. Canadians are the most online people in the world and we have one of the most expensive and least reactive policy environments.

    Ridiculous - set the internet free. All the opposition parties should immediately pledge to defeat this bill and any iterations we may see coming. Prioritize communication and innovation and let's see Canada become a leader in digital policy, instead of a shame-faced straggler.

  • cheena1

    13 weeks ago

    SCRAP THE WHOLE THING!!

    Anyone can see this is just another ploy of this paranoid fed govt. Do they REALLY think there aren't ways around this?? Changing the name of this bill 17 min. after the $hit hit the fan is sooo telling! Huge waste of time, money, and effort!!

    If, by the slightest chance, this bill goes thru, Rogers, Bell,and Telus better get ready to either push back hard at govt. and collectively refuse to agree, or suffer a huge loss of profits and further backlash!

    My networks tell me there will be a massive protest!

  • kasi_visvanath

    13 weeks ago

    media savvy manipulators? really? in your dreams

    sorry cboo, your premise is just more conservative propaganda, kind of similar to what the Syrian President says about oppostion to his regime...."they are terrorists funded and commanded by outside forces (like the US)" stubborn denial of the facts.....

    opposition to this bill is widespread, even among Conservatives, even i you're happy with it....
    those so-call "media manipulators" you are complaining about...you are only complaining because they are progressively oriented, and not regressively Fascistic, like you'd rather see...like what the Harper Conservative/Fascist government is REALLY about....repressing and oppressing opposition, calling them foreign funded agitators verging on terrorists...

    can't stand a little heat from the broad popular opposition to your draconian tendencies, Mr. Harper? maybe politics isn't for you then.

    as the for previous attempts to introduce this kind of legislation....it didn't get anywhere either....so there obviously WAS some opposition.

  • pianosaurus rex

    13 weeks ago

    Section 33 of this bill

    Tells us that, “The Minister may designate persons or classes of persons as inspectors for the purposes of the administration and enforcement of this Act.”

    We are not specifically designating police officers for this task. We’re talking about anyone the minister chooses — or any class of persons.

    Housekeepers? Tennis instructors? Left- handed red heads? Members of the Conservative party?

  • RickW

    13 weeks ago

    I would be curious to know.....

    ....how much the Harper government has budgeted for legal costs in fighting the objections nearly every one of it's proposals has generated. Is there a set amount - or is it a "bottomless" pit (a la the SLAPP suit mentality)?
    http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation
    Either way, it's a lawyer's dream......

  • igbymac

    13 weeks ago

    kasi_visvanath

    kind of similar to what the Syrian President says about oppostion to his regime...."they are terrorists funded and commanded by outside forces (like the US)" stubborn denial of the facts.....

    Wow. You are in abject denial of reality. And I guess that is a big part of the trouble today, where all sides of the issue are discussed -- some offered by those who see reality and others by those who miss it entirely.

    The evidence that the CIA, MI6, Mossad and NATO are covertly funding the uprising, and their thinking behind it, is overwhelming. And contemporary history is riddled with such behaviour.

  • Fritz

    13 weeks ago

    Crime Minister and Cronies are Control Freaks Niccolo Machiavel

    Niccolo Machiavelli, in his 1513 treatise The Prince, offers a practical guide for any ruler: “secure power by direct and effective means” . Within his so-called ‘ends-justify-the-means’ approach to ruling lies a militaristic cornerstone, focusing more on strength, as well as reputation and appearances, than on actual leadership.

    "Power tends to corrupt, and absolute power corrupts absolutely..."
    — Lord Acton 1887

    Billions for fighter jets and prisons, allegations of not enough money for universal health care with more and
    more folks not relying on corporate MSM for its version of events, and corporate funded control
    freaks obtaining public office being exposed.
    The one in most need of surveillance is a prime minister such as here in Canada which has less checks and balances on its prime minister than any other democracy

    "Unlimited power is apt to corrupt the minds of those who possess it"
    — William Pitt 1770

    Saying George Bush type of stuff if you debate their ideas calling people "Eco-terrorists" or
    if you don't stand with us you are a "child pornographer" etc etc.

    “Violence, even well intentioned, always rebounds upon oneself”
    — Lao-Tzu circa 600 BC

  • tonyinvan

    13 weeks ago

    what are they really doing?

    So the brouhaha re this bill rages... and rages. My question is, what are these SupposiTories doing while we rail against the introduction of this bill? Convenient cover for what?

  • snert

    13 weeks ago

    Myths & Facts from Vic Toews

    This is, in part, a message received this morning from the Minister. I sent a response saying the bill was poorly written and in fact it should be scrapped completely.

    "Myth: Lawful Access legislation infringes on the privacy of Canadians.

    Fact: Our Government puts a high priority on protecting the privacy of law-abiding Canadians. Current practices of accessing the actual content of communications with a legal authorization will not change.

    Myth: Having access to basic subscriber information means that authorities can monitor personal communications and activities.

    Fact: This has nothing to do with monitoring emails or web browsing. Basic subscriber information would be limited to a customer’s name, address, telephone number, email address, Internet Protocol (IP) address, and the name of the telecommunications service provider. It absolutely does not include the content of emails, phones calls or online activities.

    Myth: This legislation does not benefit average Canadians and only gives authorities more power.

    Fact: As a result of technological innovations, criminals and terrorists have found ways to hide their illegal activities. This legislation will keep Canadians safer by putting police on the same footing as those who seek to harm us.

    Myth: Basic subscriber information is way beyond “phone book information”.

    Fact: The basic subscriber information described in the proposed legislation is the modern day equivalent of information that is in the phone book. Individuals frequently freely share this information online and in many cases it is searchable and quite public.

    Myth: Police and telecommunications service providers will now be required to maintain databases with information collected on Canadians.

    Fact: This proposed legislation will not require either police or telecommunications service providers to create databases with information collected on Canadians.

    Myth: “Warrantless access” to customer information will give police and government unregulated access to our personal information.

    Fact: Federal legislation already allows telecommunications service providers to voluntarily release basic subscriber information to authorities without a warrant. This Bill acts as a counterbalance by adding a number of checks and balances which do not exist today, and clearly lists which basic subscriber identifiers authorities can access. "

  • G West

    13 weeks ago

    Nothing like the phone book

    In fact, for a few pennies a month, subscribers to phone services can choose to have their numbers 'unlisted' and NOT AVAILABLE in the phone book...You might want to ask minister Toews whether or not he's willing to permit internet subscribers to make the same request of their service providers.

    If Canadians can choose to keep their phone numbers and addresses 'private' it's perfectly reasonable to permit them to do the same with respect to their online 'names and addresses'.

  • lynn

    13 weeks ago

    Bill 1984

    "Anyone can see this is just another ploy of this paranoid fed govt. Do they REALLY think there aren't ways around this?? Changing the name of this bill 17 min. after the $hit hit the fan is sooo telling! Huge waste of time, money, and effort!!" ~ cheena1

    Exactly. Well said. The instant name change/reversal from an online privacy/surveillance bill to one suddenly about child pornographers reveals the real duplicitous intent of The Peeping Cons.

    The danger of this bill is even more evident when seen in context to Harper's long line of insidious advances against the democratic state: The proroguing of parliament, the silencing of scientists, the labelling of environmentalists as 'terrorists', the labelling of those who do not agree with this bill as "with the child pornographers", the consistent shutting down of parliamentary debate, the arrogant announcing of proposed changes to Canada's OAS stated while in a foreign country.....and on and on.....

    Time to wake up from your long sleep, Rex Murphy!

    Bravo to Pat Martin, Justin Trudeau, and Brigitte de Pape for recognizing that our Canada is being intentionally dismantled and made unrecognisable.... and for saying it out loud.