Privacy watchdog reiterates lawful access concerns

Canada's privacy commissioner says she has "deep concerns" about potential legislation that would boost police surveillance powers and access to private information.

Canada's privacy commissioner says she has "deep concerns" about potential legislation that would boost police surveillance powers and access to private information.

In an open letter to Public Safety Minister Vic Toews on Wednesday, Jennifer Stoddart reiterated her criticisms of "lawful access" legislation introduced in the last session, and said she felt it was important to set them out again before the government reintroduces such provisions.

The previous lawful access bills — C-50, C-51 and C-52 — "would have had a significant impact on our privacy rights," Stoddart wrote.

"These bills went far beyond simply maintaining investigative capacity or modernizing search powers. Rather, they added significant new capabilities for investigators to track, and search and seize digital information about individuals."

Stoddart expressed particular concerns about a proposal in the previous legislation that would have required internet service providers to give subscriber data to police and national security agencies without a warrant, including names, unlisted phone numbers and IP addresses.

Stoddart said that amounts to "circumventing the courts to obtain personal information."

The subscriber data that could be obtained would allow investigators to link people's identities to their online activities, such as posts in online forums where people feel they can anonymously express political dissent or share highly personal information, some privacy experts have warned.

"Only prior court authorization provides the rigorous privacy protection Canadians expect," Stoddart wrote.

Toews confirmed earlier in October month that the government is "going to move ahead on lawful access legislation." The Conservative Party also promised in its campaign platform leading up to the May 2010 election to "give law enforcement and national security agencies up-to-date tools to fight crime in today's high-tech telecommunications environment."

When asked to respond to Stoddart's letter, Toews said in a statement, "As technology evolves, many criminal activities – such as the distribution of child pornography — become much easier. We are proposing measures to bring our laws into the 21st century and provide police with the tools they need to do their job."

The statement added that the government believes its approach "strikes an appropriate balance between the investigative powers used to protect public safety and the necessity to safeguard the privacy of Canadians."

However, Stoddart wrote that "no systematic case has yet been made to justify the extent of the new investigative capabilities" proposed and show that less "privacy invasive" alternatives won't work.

Nor has there been any evidence provided that police can't perform their duties under existing law, she said.

"If the concern of law enforcement agencies is that it is difficult to obtain warrants or judicial authorization in a timely way," she added, "these administrative challenges should be addressed by administrative solutions rather than by weakening long-standing legal principles that uphold Canadians’ fundamental freedoms."

If Parliament does pass legislation that allows police to get personal information without a warrant, "we believe the oversight and reporting safeguards must be significantly strengthened," Stoddart said.

In addition to the provision allowing police to obtain internet subscriber information without a warrant, the previous lawful access bills also would have:

  • Forced internet providers and other makers of technology to provide a "back door" to make communications accessible to police.
  • Allowed police to get warrants to obtain information transmitted over the internet and data related to its transmission, including locations of individuals and transactions.
  • Allowed courts to compel other parties to preserve electronic evidence.

Anticipating the reintroduction of lawful access legislation, many privacy and consumer advocates and opposition politicians have been speaking out and lobbying against the proposals in recent months.

Stoddart and the provincial and territorial privacy commissioners had previously written to express their concerns about lawful access legislation to the government in 2009 and in 2011.