Imagine that, because you're pressed for time, you take a cab to the library. The cab driver is obliged by law to install a device that will monitor where he takes you. While in the cab, you call your friend to talk about your day. The phone company is obliged to track whom you talk to and for how long.
At the library, you speak to a librarian, who jots down your query, because legally he must. He directs you to a specific shelf, and notes that too; each book you open will be recorded as well. Later, you see a film. The theatre notes which one, as it has to.
Now imagine that you're that cab driver, phone company or movie theatre. You're a private business, yet you're obliged, in order to avoid a fine or even imprisonment, to store this information about any of your clients (at your own expense) if a peace officer requests that you do so.
That officer needs only a “preservation demand” for this, and getting one is easy. It doesn't involve a warrant – he just needs to be curious.
A judge is required if the officer wants to make the company turn over that stored information. However, it's also perfectly legal for a company to hand over their clients' personal information voluntarily. And, of course, requests to do things that are perfectly legal that come from police officers aren't the first requests most of us challenge. The information is right there, anyway, so why not make things easy?
Finally, the cost of collecting this data is passed along to the people these businesses are spying on. Consider it a surveillance tax.
Most Canadians would be outraged about this situation, unless someone explained to them that all these actions – the visiting, conversing, research, commerce and movie watching – were conducted on the Internet. Substitute search engines for libraries and cabs, and telecommunications companies for the theatre, and lots of people quiet down.
We're encouraged to be afraid of the Internet: It will weaken our morals, make us trivial. It will create a generation that possesses information but no knowledge. Oh, wait a second, that last bit was Socrates on the written word.
The government is set to reintroduce Bill C-51, the deceptively progressive-sounding Investigative Powers for the 21st Century Act, as part of its Dickensian pro-prison omnibus crime bill.
Among other things (Bill C-51 also could make using a false name on the Internet a crime; likewise, potentially, linking to any website where hate material is posted), the legislation allows the police to demand that telecommunications service providers (TSPs) preserve data on specified users for 21 days, without a warrant.
The logic behind this is that data can be deleted and therefore this holding period is needed while an order to disclose the data is obtained from a judge (they're also just free to hand it over).
This is pretty murky: Lots of other kinds of evidence can be destroyed. Drugs can be flushed. And yet there's no pre-warrant state in which the police are allowed to demand that your landlord stand around your house for 21 days, on his own dime, while the police get a warrant, in case you destroy potential evidence they have an inkling might be there.
Telecom companies and Internet service providers (ISPs) already co-operate with law enforcement in the fight against serious Internet crimes, such as child pornography. They tend to focus on taking down illegal websites – to police what people are putting on the Internet more than what people are watching on the Internet. This approach offers a pretty good balance between our security and our privacy.
Bill C-51 seems to indicate a shift. It makes accessing our most private data easier by essentially conscripting telecom companies and ISPs into operating more sophisticated version of warrantless wiretaps.
At the same time, it allows the private companies that have a virtual lock on the market – a situation that our supposedly pro-competition government seems to be remarkably at peace with, and one that does, coincidentally, make this monitoring relatively simple – to recoup those costs as they see fit.
Perhaps as a result, there has been little opposition to Bill C-51 from the big six ISPs.
It feels a bit like a lighter version of the Stasi, only privatized. The spies send you a monthly bill, but they're endlessly happy to talk to you about bundling.