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July 30, 2009

Assaults on Privacy

Sumaira Shaikh

Sumaira ShaikhIt is not unreasonable for national and domestic security concerns to be a priority in this country. It should be and most Canadians would hope it would be.

Yet, there must be a balance amongst this and other objectives and values that are important to Canadians. Increased security need not be at the cost of increased insecurity in another form: namely, the infringement of privacy and the threat of unnecessary exposure to governmental authority.

Two new pieces of legislation were jointly tabled on June 19 at Parliament.

Bill C-46, Investigative Powers in the 21st Century Act, was tabled by the Minister of Justice, Rob Nicholson, and C- 47, Technical Assistance for Law Enforcement in the 21st Century Act, was tabled by the Minister of Public Safety, Peter Van Loan.

Both of these bills are geared towards increased investigative powers and telecommunication interception capability for government authorities.

The monetary cost for such investigative demands must be paid for by the telecommunication industry, while the intangible costs associated with such powers is placed on the shoulders of the public whose privacy is up for auction.

The proposed legislation attempts to facilitate criminal investigations involving Internet and other telecommunications service providers.

Bill C-46 grants new investigative powers to Canadian police and security authorities, while Bill C-47 imposes obligations on service providers to prepare or update their capabilities to comply with orders to meet the demands of such investigative powers.

Bill C-46 amends several laws that grant investigative powers to state authorities. It provides the state with powerful means with which to deal with computer or other technologically-related crimes, such as child pornography, copyright infringement and other forms of fraud and/or crimes.

The most troubling fact is that this bill allows the police to request a service provider to preserve data or provide a document even without a preservation order or other legal means (unless it is prohibited by law).

The bill also allows them to remotely track a mobile device or other such devices and then demand production and disclosure of such tracking information, albeit this request is through a judicial warrant. This bill also expands the situations when production orders may be obtained.

What we see is a clear expansion of investigative powers and unless these powers are closely controlled and monitored, they have potential to impact and violate the privacy of each and every person who uses telecommunication devices.

Bill C-47 may be viewed as an enabling statute for Bill C-46. It imposes burdensome and industry-unfriendly obligations on service providers to supply certain subscriber information to the authorities upon demand.

Service providers are required to enable multiple simultaneous interceptions and to isolate each communication that may be intercepted. They are required to have such capability, and if not, to acquire such capability to meet the government’s demands.

Eventually, information such as the subscriber’s name, address, telephone, e-mail, IP address and other personal information, will be up for grabs by Canadian authorities.

Additionally, the RCMP, CSIS, Commissioner of Competition, and provincial police services may each authorize people within their agency to whom service providers must grant disclosure of personal information without a warrant, thus increasing the parameters within which such private information may be disclosed.

It is clear that the powers granted in the proposed bills are unnecessarily broader than required. An amendment to the scope of such power is an area the government needs to address if it wants this piece of legislation enacted.

Broad powers in the hands of a number of delegates in a number of agencies only sends a chill down the spine of those concerned about their privacy – the concern needs to be addressed and the current approach tailored.

Stronger investigative units that target crime are important, but the current state of these two bills is unacceptable. The problem with these bills is not the need for increased authority in the hands of the government; it is the potential for misuse and the vulnerability of the general public that worries those concerned with such proposed legislation.

The Conservative government should not be battered for such an attempt; a modification is required, not a complete overhaul of the proposed legislation.

Other jurisdictions, such as the United States, United Kingdom, Australia and New Zealand have enacted similar legislation in order to comply with the Cybercrime Convention, an international treaty.

This is Canada’s second attempt to propose changes to investigative powers to curb cybercrime. The 2005 attempt failed, and it is likely this one will fail as well if the impending concerns are left unaddressed.

Most people would want to ensure that police have all the abilities and tools at their disposal to deal with crimes. It is not a priority only of the government, but of the public as well.

However, lawful access need not be expanded to the point defined by these bills. Advocates that stand for the current state of the bills must demonstrate to Canadians the need for such broad powers. They need to explain the supposed inefficiencies of past methods and practices and limit the burdensome impositions on the telecommunications industry.

They must also justify the retrenchment of judicial oversight. Until such legitimacy and explanation is received and adequate changes are made, the current bills remain as assaults on Canadian privacy and the telecommunications industry.

Sumaira Shaikh has a University of Toronto, BA (Hons.) in Journalism and Political Science. She is a law student, Class of 2010, at the University of New Brunswick.

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Dotan Rousso. Holds a Ph.D. in Law—a former criminal prosecutor in Israel. Currently working as a college professor in Canada.

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