Canadian Public Safety Minister Peter Van Loan appeared on the last episode of TVO's Search Engine to defend the Conservatives' new "lawful access" bill. If passed, the bill will force ISPs to install equipment to facilitate internet wiretapping and allow Canadian police access to customer name and address information from internet service providers without court oversight.
Reaction to the bill has been almost universally negative. The Ottawa Citizen called it "out of balance" in an editorial, while the Montreal Gazette called the increased powers "a tool police don't need". Even the law-and-order National Post suggested that the bill is a "bogus, ill-advised expansion of state power".
This new bill comes only two years after former Public Safety Minister Stockwell Day assured the public that police would require court approval to access subscriber name and address information:
"We have not and we will not be proposing legislation to grant police the power to get information from Internet companies without a warrant. That's never been a proposal," Mr. Day said. "It may make some investigations more difficult, but our expectation is rights to our privacy are such that we do not plan, nor will we have in place, something that would allow the police to get that information."
- Ottawa Citizen, September 14, 2007
However, in his Search Engine interview, Minister Van Loan denied that his government had ever made such promises. He also clashed with Jesse Brown, the host of Search Engine, over the phrase "reasonable expectation of privacy". Van Loan referred to what Canadian courts have defined as a "reasonable expectation of privacy", while Brown suggested that those legal definitions may clash with what Canadian internet users feel should be private.
Van Loan is correct in stating that Canadian courts have been hesitant to find even the slightest expectation of privacy in internet protocol addresses or phone numbers (I'll address these rulings in a later post). However, Brown is correct to point out that Canadians using the internet expect that their activities are carried out in private, whether or not the court finds these expectations reasonable.
More and more areas of our lives are moving into the online world, from work to play, from the social to the political. Van Loan's legislation will allow Canadian law enforcement agencies unprecedented access to our private lives. While the new law may meet the "reasonable" standards of constitutionality, it is still an unreasonable intrusion on innocent Canadians' lives.
(Originally discussed by Cory Doctorow on BoingBoing)
CBC News is reporting that between 2000 and 2008, Canadian police forces used secret warrantless wiretaps in at least 267 cases. In Canada, emergency wiretaps can be conducted outside of any system of oversight, leading to concern over potential abuse.
Typically, police wiretaps must be supervised by a court, but in cases of emergency the Criminal Code grants police special powers under Section 184.4:
Interception in exceptional circumstances
184.4 A peace officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where
(a) the peace officer believes on reasonable grounds that the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained under any other provision of this Part;
(b) the peace officer believes on reasonable grounds that such an interception is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and
(c) either the originator of the private communication or the person intended by the originator to receive it is the person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm.
The use of emergency wiretaps is not new, and as in the case of Graham McMynn discussed in the article, often important. However, what is disturbing in the Canadian implementation is the absence of transparency and accountability.
- Transparency: With ordinary wiretaps, there is a requirement to notify the target of the intercept once the investigation has been completed. There is no such requirement for emergency wiretaps, meaning that the targets will only discover they have been wiretapped if the case goes to court and the wiretap is used in evidence. Additionally, we have no clear picture of how often these secret wiretaps are used, or what they are used for. Police agencies must report their court ordered wiretapping activities to Parliament yearly, detailing the number of wiretaps authorized and the kinds of cases they were authorized for.
- Accountability: In the United States, wiretaps can be started without a court order in the case of an emergency, but law enforcement must seek authorization from a judge within three days of starting the intercept, bringing the emergency powers under the control of the court. There are no such provisions in Canada. Just as we have no way to know how often s. 184.4 wiretaps are used, we have no way to know if they are used appropriately.
As the Ministry of Public Safety pushes for broader police "lawful access" powers, it is important to examine the powers they already do have. As it stands, the surveillance powers afforded Canadian police are overly broad, and should be brought within a system of accountability and oversight.