Federal Privacy Commissioner Expresses Concerns about Lawful Access Legislation

Public Safety Minister Vic Toews has confirmed in recent weeks that the Conservatives intend to revive legislation they did not manage to pass as a minority government – three bills that would give police new capabilities to conduct electronic surveillance in the Internet age.

Jennifer Stoddart, the Federal Privacy Commissioner, wrote the Harper government last week to express her “deep concerns” about these new surveillance powers and noted that the government has so far failed to demonstrate why this is the best course of action.

The changes pushed for by the Tories were intended to make it easier for police to monitor Canadian’s Internet and smartphone activity, and would also have given police greater power to obtain data gathered by Internet service providers.

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

The Conservatives have not specified whether they intend to bring back all three bills or amend their legislative plans in any way. Now that the Tories hold a majority of seats in the Commons – and control the Senate – they can pass any legislation they want.

One piece of legislation that will likely be revived, the Investigative Powers for the 21st Century Act, will require Internet service providers to install surveillance technology on their networks. It will also force mandatory disclosure of customer information on demand and without court oversight. This will oblige all ISPs to surrender customer details to the police including name, address, e-mail address as well as the IP address, being the unique identifier number that every computer connection to the Internet is assigned.

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

Stoddart says the oversight and reporting safeguards proposed by the government “must be significantly strengthened” should Parliament ultimately allow police and national security authorities to bypass the courts to obtain personal information.