The Privacy Commissioner of Canada, Jennifer Stoddart, has publically criticized plans to bring back legislation that would expand the legal tools of the state to conduct online surveillance.
The Canadian Government originally proposed the Lawful Access package consisting of Bills C-50, C-51, and C-52, during the last session of Parliament in March, but the legislation died when the federal election was called for May 2. Since then, no new legislation has been presented.
However, according to Michael Patton, a representative of the office of Public Safety Minister Vic Toews, their office will be proposing similar legislation to the original Lawful Access package shortly.
The original package would have enabled state authorities to demand individuals’ basic personal information from Internet Service Providers (ISPs) without a warrant. The legislation would also have required ISPs to upgrade their networks to permit real-time surveillance of their customers’ activities.
In anticipation of the potential proposed legislation, Stoddart wrote an open letter to Toews urging caution.
In the letter, Stoddart outlines her concerns that the previous bills would have expanded “the legal tools of the state to conduct surveillance and access private information,” while simultaneously reducing “the depth of judicial scrutiny” required to access such information.
Stoddart noted that such legislation goes “far beyond simply maintaining investigate capacity or modernising search powers,” because it adds “significant new capabilities for investigators to track, and search and seize digital information about individuals.”
“In the case of access to subscriber data, there is not even a requirement for the commission of a crime to justify access to personal information – real names, home address, unlisted numbers, email addresses, IP addresses, and much more – without a warrant,” her letter continued.
Patton, however, explained that the Office of Public Safety’s approach “strikes an appropriate balance between the investigative powers used to protect public safety, and the necessity to safeguard the privacy of Canadians.”
“As technology evolves,” said Patton, “Many criminal activities – such as the distribution of child pornography – become much easier.”
“We are proposing measures to bring Canada’s laws into the 21st century and provide police with the tools they need to do their job,” he said.
In her letter, Stoddart acknowledged that “rapid developments in communication technologies are creating new challenges for law enforcement and national security authorities.” She went on to state that the Internet cannot be a lawless zone.
Scott Hutchinson, a representative of the Privacy Commissioner’s Office, explained that, despite repeated calls, “no systematic case has yet been made to justify the extent of the new investigative capabilities that would have been created by the bills.”
“When contemplating changes that would have such an important impact on fundamental rights and freedoms, the government needs to demonstrate the necessity, legal proportionality, and practical effectiveness of these new powers,” he explained.
According to her letter, Stoddart is worried that “Canadians have not been given sufficient justification for the new powers when other, less intrusive alternatives could be explored.”
Stoddart concluded by stating that “a focused, tailored approach is vital” if the new legislation is not to weaken the “long-standing legal principles that uphold Canadians’ fundamental freedoms.”
Hutchinson noted that other jurisdictions have explored options regarding checks and balances. He noted several options, such as “annual reports on the use of powers being tabled in the legislature, external audits on the use of powers, and administrative or even criminal sanctions for the misuse of surveillance tactics.”