A new federal bill that gives police easier access to Canadians' electronic communications and activities would widen police powers without good reason, privacy advocates say.
The Technical Assistance for Law Enforcement in the 21st Century Act:
- Requires companies that provide network services such as internet, voice-over-IP, cellphone and other wireless device services to ensure that communications made with the devices can be intercepted by police.
- Allows police to obtain personal information about customers, including names and home, email and IP addresses from internet service providers without a warrant.
"This bill is a Trojan horse to expand police powers and essentially allow for a data grab," Micheal Vonn, policy director of the B.C. Civil Liberties Association said Friday.
The new bill, introduced Thursday by Public Safety Minister Peter Van Loan, would require communications on electronic devices and networks to be interceptable by police and would allow police to obtain personal information about internet users without a warrant.
A second federal bill that gives police additional investigative powers over high-tech communications and activities was also tabled Thursday. For example, it allows police to get authorization to track a criminal suspect using his cellphone or to obtain routing information for his electronic communications.
The government said the proposed legislation is necessary to ensure police have the tools to catch up to those using new technologies to communicate and commit crimes.
'Basic building blocks' of case: police
Vonn said she was most concerned that the new legislation would allow the government to obtain personal information about internet subscribers from their internet service provider without a warrant.
Police have not provided a good reason why they need that power, Vonn said. "You have to show us that the warrant process is not working."
The Investigative Powers for the 21st Century (IP21C) Act:
- Makes it illegal to use a computer system to agree or make arrangements with another person for the purpose of sexually exploiting a child.
- Allows police to obtain transmission data such as routing information for electronic communications using a warrant or a production order.
- Forces telecommunication service providers (TSP) to store data related to a specific communication or a subscriber under a preservation order from police.
- Allows police to remotely activate existing tracking devices that are found in some cars and in devices such as cellphones.
- Makes it illegal to possess a computer virus for the purpose of committing an offence of mischief, even if the virus has not yet spread.
The information that can be obtained by police under that provision, such as names, email addresses, and IP addresses, are among the "most basic building blocks" of a case, according to Murray Stooke, deputy chief of the Calgary Police Service and spokesman for the Canadian Association of Chiefs of Police.
"It's one of the things you're going to use to find out whether or not a crime has been committed, who may have committed that crime, where evidence may be located," he said. In many cases, the information itself is needed to get a search warrant.
Vonn said that is a ridiculous argument.
"That's like saying we need to come into your house to find out if there's any evidence here that would support our getting a warrant," she said.
In fact, Stooke said, in many cases, police could already get the information from an internet service provider without a warrant just by requesting it. However, internet service providers didn't always agree to provide the information.
Time is often a factor that leads police to try and seek the information without a warrant, Stooke said.
"A search warrant is something that has to be done to a very high standard, and it takes a number of hours to prepare," he added.
Vonn argued that even without the new bill, the Criminal Code allows police to obtain the information without a warrant in emergencies.
"They already have ability to request it, to get a warrant or to demand it if they have exigent circumstances," she said. "They say this is not enough? We say that's a lie."
Stooke noted that even if the new bills become law, police will still need a warrant to look at the content of people's communications.
Key to unlocking data troves
But Ian Kerr, a professor who holds a Canada Research Chair in Ethics Law and Technology at the University of Ottawa, said the personally identifiable information that would be obtainable without a warrant could be used to get far more.
"That information is the key to unlocking much of the very information that they would require a warrant for," he said.
Stooke noted that there are provisions in the bill to ensure that police use the information properly. They will have to make written requests explaining why they need the information, and those requests will be audited multiple times a year. The results will be reported to the federal and provincial privacy commissioner, and any concerns would be reported to the provincial attorney general.
Vonn said that system won't prevent police from violating people's privacy in the first place.
"We don't want the apology after the fact. We want the ability to protect privacy at the front end," she said.
Privacy Commissioner not consulted
Chantal Bernier, assistant privacy commissioner of Canada, said the Office of the Privacy Commissioner is currently examining the bill to determine what its role will be in oversight of the proposed legislation. The office also wants to know in more detail why law enforcement officials need the new powers and how those reasons justify the intrusion of privacy they entail, she said.
Finally, the office wants to ensure there are safeguards in the legislation to make sure the powers would only be used to investigate major crimes, as lesser crimes would not justify the same level of privacy invasion.
Bernier said her office will need some time, as it was not informed that the legislation was coming. Nor was it consulted on the bills, although it was consulted on similar legislation introduced by Stephen Harper's previous Conservative government and Paul Martin's Liberal government before that.
The government has said it had consulted widely before drafting the new legislation. Vonn confirmed that was the case, and said many groups such as hers had expressed disapproval about certain provisions in the bill during those consultations. However, they later ended up in the bill anyway.
The government also said that the proposed legislation is similar to that in many other countries.
Kerr agreed that the U.S. and many European countries do have similar legislation, based on a 1996 international treaty called the European Convention on Cybercrime.
But looking at what other countries are doing is not necessarily the best way to determine whether legislation is justified, he said, as those countries might be compelled for particular reasons or by particular interests.
"I think the better question to ask … is 'To what extent does a new bill like this give additional and expanding powers to police? And if it does, to what extent are those justified and on what basis?" Kerr said.