Respond to Minister Toews | Beware of "Surveillance by Design:" Standing Up for Freedom and Privacy

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Body: Minister Toews: Your response to my email related to Bill C-30 evoked several concerns. Accordingly, I have responded to each of your claims below: Minister Toews says it is a myth that: Lawful Access legislation infringes on the privacy of Canadians. Minister Toews claims that: Our Government puts a high priority on protecting the privacy of law-abiding Canadians. Current practices of accessing the actual content of communications with a legal authorization will not change. The Real Story: Bill C-30 introduces a highly invasive surveillance regime that undermines judicial safeguards and increases the frequency, scale and scope of state surveillance within Canada, thereby threatening to infringe the privacy rights of Canadians. For example, section 16 of Bill C-30 would permit designated employees of law enforcement agencies to compel telecommunications service providers to disclose names, addresses, telephone numbers, email addresses, local service provider numbers and IP addresses, upon a mere written request, for the purpose of assisting police with the performance of “any police duty or function.” In particular, section 16 of Bill C-30 was not drafted to address serious and immediate harms to persons or property. Section 16 has no urgency or harm requirements whatsoever. The power is not even confined to criminal investigations, let alone serious ones. Police employees, for example, will be able to use section 16 for the purpose of any function or duty of a police service under or in relation to, for example, the common law, municipal law, provincial law, federal law, or foreign law, including any of the largely unregulated intelligence and security functions performed by police. Privacy commissioners from across Canada, as well as leading experts in technology, privacy and the law are properly concerned that warrantless access to customers’ subscriber information presents a serious threat to Canadians’ privacy rights. Minister Toews says it is a myth that: Having access to basic subscriber information means that authorities can monitor personal communications and activities. Minister Toews claims that: This has nothing to do with monitoring emails or web browsing. Basic subscriber information would be limited to a customer’s name, address, telephone number, email address, Internet Protocol (IP) address, and the name of the telecommunications service provider. It absolutely does not include the content of emails, phones calls or online activities. The Real Story: It has long been acknowledged that Bill C-30 does not provide law enforcement with the authority to conduct live monitoring of the content of private communications without a warrant. It does, however, permit law enforcement to obtain names, addresses, telephone numbers, email addresses, local service provider numbers and IP addresses without any judicial supervision. A customer’s subscriber information may be easily linked to other personal information associated with one’s online and mobile activities and used to create a digital dossier that reveals the individuals you have communicated with, your anonymous online identities, when communications have taken place, the frequency of communications and, at times, your physical location. Minister Toews says it is a myth that: This legislation does not benefit average Canadians and only gives authorities more power. Minister Toews claims that: As a result of technological innovations, criminals and terrorists have found ways to hide their illegal activities. This legislation will keep Canadians safer by putting police on the same footing as those who seek to harm us. The Real Story: The government and law enforcement have yet to provide the public with any concrete information justifying the proposed powers or adequate explanation as to how the current law has barred law enforcement personnel from investigating and prosecuting serious wrong doing. Recently, Open Media obtained internal police documents seeking examples of why Bill C-30 was needed. The documents obtained acknowledged that previous efforts at justification “lacked a sufficient quantity of good examples” to justify why current laws have proved insufficient. In justifying proposed “lawful access” legislation in 2009, then-Public Safety Minister Peter Van Loan cited a 2009 kidnapping case in which police waited thirty-six hours to obtain information needed to obtain a warrant for customer name and address information. However, documents obtained under an access to information request indicated that no Internet provider records were actually sought during that investigation. Minister Toews says it is a myth that: Basic subscriber information is way beyond “phone book information.” Minister Toews claims that: The basic subscriber information described in the proposed legislation is the modern day equivalent of information that is in the phone book. Individuals frequently freely share this information online and in many cases it is searchable and quite public. The Real Story: This statement suggests that the government misunderstands how Canadians interact with new communications technologies and significantly underestimates the sensitivity of the personal information that may be collected under Bill C-30. A phone book lists the name, address and telephone number of an individual. Bill C-30 would permit the collection of the name, address, telephone number, email address, local service provider number and IP addresses of an individual without court oversight. Referring to the above as phone book information is misleading. Subscriber data goes well beyond names, addresses and telephone numbers found in a phone book. Rather than simply revealing where an individual resides, as in the case of a phone book, the information that can be obtained without a warrant under Bill C-30 may be linked to other personal information to create a digital biographical profile of the individual. Also, while individuals are provided with an opportunity to have their information excluded from a phone book, this is not the case with respect to the information that may be obtained without a warrant under Bill C-30. Minister Toews says it is a myth that: Police and telecommunications service providers will now be required to maintain databases with information collected on Canadians. Minister Toews claims that: This proposed legislation will not require either police or telecommunications service providers to create databases with information collected on Canadians. The Real Story: Given the information that may be collected under Bill C-30 will link the ongoing interactions of networks of users through unique identifying device numbers across time, location, activity and communities on the Internet, it would not be surprising that telecommunications service providers will be motivated to routinely retain more information about our digital activities in order to make responding to police demands more economical. These digital trails will paint a detailed and evolving picture that will vividly reflect upon who we are. Minister Toews says it is a myth that: “Warrantless access” to customer information will give police and government unregulated access to our personal information. Minister Toews claims that: Federal legislation already allows telecommunications service providers to voluntarily release basic subscriber information to authorities without a warrant. This Bill acts as a counterbalance by adding a number of checks and balances which do not exist today, and clearly lists which basic subscriber identifiers authorities can access. The Real Story: Stating that Bill C-30 adds more checks and balances is misleading. Bill C-30 creates a new vastly overbroad warrantless power to compel disclosure while imposing vague reporting requirements on police. In the meantime, police will continue to be able to ask telecommunications service providers and other companies for voluntary disclosures without any reporting requirements. A recent media report indicated that the RCMP alone obtained voluntary disclosures over 28,000 times in 2010. Bill C-30 relies too heavily on police agencies to assess themselves rather than provide for rigorous independent oversight. While internal police review is accompanied by an expectation that provincial and federal privacy commissioners will provide oversight, most privacy commissioners lack audit powers and the resources necessary to provide such oversight. The absence of independent audit of warrantless access presents another serious weakness in Bill C-30. Yours sincerely,
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