Unlawful Access: Online surveillance is about to get much, much worse

The Conservative government is planning to introduce new laws controlling the “lawful access” provisions of the Criminal Code of Canada. These laws describe how police can intercept telephone calls, postal mail, email, and other communications for the purposes of law enforcement. Currently, a police officer with “reasonable belief” that you are either breaking the law or planning to do so is required to ask a judge to sign a warrant. The police would then give this to Canada Post, your telephone company, or your internet service provider, who would then start opening your mail or listening to your phone calls and giving copies to the police.

These new laws propose that if the police have simply a “reasonable suspicion” that you are doing something illegal, they would be able to intercept your online communications without a warrant. They would require anyone who provides you with an online service (your ISP, people operating web servers, your cell phone provider, and so on) keep detailed logs about your activities for the police to use if they later decide that your actions are worth tracking. Service providers would also be required to install expensive new equipment which allows the police to watch you in real time, should they choose to do so. These service providers will not be able to tell you that your communications are being watched, and the costs of your surveillance would be born entirely by these service providers, who will be forced to pass the cost directly on to you. Granting police access to these logs would let them see every website you visit, every email you send, every friend you have on Facebook or similar sites, every financial transaction you conduct online, and even your exact location in the case of some modern cell phones, all based just on a police officer’s hunch. Encrypting your data and your communications could help, but very few computer users know enough to circumvent each of these new ways of spying on your actions online.

It makes sense for the Criminal Code to keep pace with new technology, but no evidence has been presented to show that existing laws are not sufficient to process criminal investigations. Both the Canadian Police Association and the Canadian Association of Chiefs of Police have said that they are not asking for warrantless access to private information, but the government argues that citizens don’t expect identifying details of their online conversations to be kept private, and so police shouldn’t need to talk to a judge to access this data. The Privacy Commissioner of Canada, however, has told the House of Commons that by dropping the requirement to obtain a warrant, this proposed legislation constitutes a serious new invasion of individual’s rights. She is also concerned that the bill entirely lacks appropriate oversight, in the form of internal government auditing requirements, to ensure that these new powers are not being abused.

These new laws, first proposed by the minority Liberal government in 2005, have been re-introduced by the Conservatives in each session of Parliament since, but couldn’t pass in a minority government. Now that Stephen Harper has a majority in Ottawa, expect these bills to be re-introduced soon and approved with a minimum of discussion or public debate, much like Bill C-11, a new copyright law now being pushed through Parliament at the request of US copyright holders that will criminalize making backup copies of legally purchased DVDs, e-books, and music on your iPod to use on another device, to share in a classroom, or to protect against loss. “Lawful access” to everything you do online brings us one step closer to living in a true police state: if you believe that law enforcement officers are honest, trustworthy, never corrupt, and are acting in our best interest to make society a safer and better place, you have nothing to fear. The rest of us should be very worried about the level of surveillance that will soon become common practice if these bills are made law.