Proponents of Canada’s Online Spying Bill Still Trying to Justify Excessive Powers
Canada’s online surveillance bill may be on hold for now, but a recent news article confirms that a rather formidable figure has been angling for its return: Richard Fadden, head of the Canadian equivalent of the FBI. Fadden, director of the Canadian Security Intelligence Service (CSIS), wrote in a letter that the highly contentious Bill C-30 was “vital” to protecting national security. The letter was sent to Public Safety Minister Vic Toews, the driver behind Bill C-30, in late February. It was released to the Canadian Press in response to a request filed under the Access to Information Act.
As EFF has noted before, Bill C-30 would introduce new police powers allowing Canadian authorities easy access to individuals’ online activities, including the power to force Internet companies to hand over private customer data without a warrant. It would also pave the way for gag orders preventing online service providers from notifying subscribers that their private data has been disclosed — a move that would make it impossible for users to seek legal recourse for privacy violations.
Similar gag orders are frequently imposed in the United States, when the FBI issues national security letters (NSLs) seeking customer information. In a case EFF has taken on to challenge an NSL statute on behalf of a telecommunications company that received one of these secret letters in 2011, fundamental due process and First Amendment issues arising from these gag order provisions are a central concern.
Toews, the bill’s proponent, has made some outrageous claims about Bill C-30. Early on, he stated that opponents of the bill were either with him, "or with the child pornographers,” an apparent attempt to paint the legislation merely as a tool to combat online predators. Yet this framing of the issue was roundly rejected by stakeholders – as EFF reported back in February, internal documents reveal that even the government’s own analysts have claimed the powers in question were actually needed for non-criminal investigations.
Indeed, the legislation met with broad criticism across the board. Privacy Experts, academics, all of Canada’s Privacy Commissioners (and specifically the Federal, Ontario and British Columbia Commissioners), telecommunications companies, major Canadian newspapers, all opposition political parties, the Internet community, and more than 145,000 Canadians who signed an OpenMedia.ca petition spoke out against the legislation because they understood that it represented an unwarranted invasion of Canadians’ online privacy. The message seemed to get through: The legislation was ultimately placed temporarily on hold in the wake of the public outcry.
In spite of this, Fadden made it clear in his letter that he’s eager to see the bill return to Parliament. He offered to help draft revisions to the legislation to strengthen accountability measures, and stated that his agency is available “to support this process through all legislative stages.”
This did not come as a great surprise to Canadian privacy advocates. “CSIS has been a strong (but silent) supporter of the legislation for quite some time,” said Tamir Israel, of the Canadian Internet Policy and Public Interest Clinic (CIPPIC). “Unfortunately, [Fadden’s] statement … offers little that will make this legislation palatable to Canadians. CSIS already has very broad surveillance powers and they have yet to make the case that these new powers are, in fact, necessary for them to continue to do their job.”
Fadden’s focus on strengthening accountability fails to address the endemic problems in Bill C-30. British Columbia Privacy Commissioner Elizabeth Denham hit on the inherent problems with this approach in her assessment of prior government attempts to fix Bill C-30 by introducing stronger accountability:
I appreciate these changes attempt to improve the legislation. However, they remain premised on, and leave unaltered, the Bill’s fundamental flaw; that law enforcement can obtain an array of personal information about citizens, including real names, home addresses, unlisted numbers, email addresses and IP addresses from Internet service providers, without a warrant.
The Ontario Privacy Commissioner has also issued a detailed outline of what it would take to fix Bill C-30. And Denham’s perspective is shared by a broad cross-section of Canadians.
“If there's one lesson Toews should have learned from the huge public outcry via the over 145,000+ who have spoken out through the StopSpying.ca petition and social media, it is that the government needs to make an effort to consult Canadians on issues relating to online privacy,” said Steve Anderson of OpenMedia.ca. “Canadians know this online spying bill will provide a range of authorities with the private information of any Canadian, at anytime, without a warrant. The fact is Vic Toews’ online spying plan is invasive, costly and poorly thought out.”
More recently, Toews claimed that Bill C-30 would have helped law enforcement apprehend accused killer Luka Magnotta, who has been charged in the gruesome murder of a Chinese university student. But Dr. Michael Geist, an expert in Internet and E-Commerce law and law professor at the University of Ottawa, immediately debunked this assertion:
“There is simply no question that law enforcement can obtain the necessary warrant on customer name and address information (if an ISP refused as part of an investigation) and police have presumably obtained warrants for far more detailed information. Moreover, the surveillance capabilities at ISPs mandated by C-30 - which focus on real-time surveillance - appear completely irrelevant given that Magnotta fled to France. In fact, reports indicate that there were early warnings about Magnotta and the video openly available that were dismissed by police.”
For his part, Israel characterized Toews’ statements as “more posturing from the Ministry of Justice and more crude attempts to leverage inflammatory issues in order to justify unnecessary and excessive powers.”
EFF continues to stand with Canadian privacy advocates who remain wary of Bill C-30’s return. We will continue to keep an eye on this legislation, which may be revisited once Parliament is back in session this coming fall.