Should telecom network companies and Internet service providers function as arms of law enforcement and national security? Yes, according to the Investigative Powers for the 21st Century Act (Bill C-51), a bill that was introduced in the last Parliament and set to be reintroduced in the new Government omnibus crime bill soon.
The bill would make it mandatory for telecom providers, ISPs and search engines to monitor, store, retain and not disclose e-mail, Internet and telephone communications at the request of law and security officials. No warrant necessary.
It won't take a lot to implement this bill. The government plans to tuck it into its "super Crime Bill." This is telecom, internet and privacy policy by stealth. It will be easy to impose, because concentrated media markets are easy to regulate.
The big six ISPs that dominate Internet access in Canada – Bell, Shaw, Rogers, Telus, Quebecor and Cogeco – have been relatively quiet about their views on the subject. Hitting the big six would cover three quarters of the population with the new regime of surveillance and security and would be relatively easy, especially if ISPs remain quiescent.
Furthermore, since the search engine Google accounts for eighty per cent or more of all online searches in Canada, it would be an easy target, too.
In some ways, Bill C-51 would seem to make good sense. Who could be against modernizing our laws for the digital age? ISPs, telephones and search engines have become the electronic crossroads of the world, facilitating commerce and communication in some incredible ways. They also enable some extremely nasty things too: kiddie porn, copyright infringement, hacking, identity fraud, espionage – a veritable swamp of murky stuff.
Who could be against controlling that? Nobody, really.
In fact, communication networks are and always have been subject to government, law enforcement and military demands. They have also had to balance such needs with those of commerce and communication.
The first telegraphs in this country linked Toronto and Montreal with Buffalo and New York City in the 1840s; submarine cables after 1866 linked us further into an even larger trans-Atlantic circuit of commerce, culture, diplomacy and strategy between Ottawa, New York, London and Europe.
From 911 operators to the Distant Early Warning system in the 1950s, the fact that Canada's communication networks have been intertwined with municipal emergency services and the military is the norm, not the exception. The DEW line was Canada and NATO's electronic front line in the Cold War. Monopoly telcos from Bell to Sasktel and the predecessors of Telus were funded well, if not lavishly; Bell Northern Labs cut its teeth on leading edge technology, the military's iron-fist behind the rise of Nortel before it collapsed in the great telecom crash of 2000.
All the while, gold-plated networks were built and along with the Scandinavians, we were the most connected people around and the envy of the world. National security, in other words, subsidized the transformation of communications from personal luxuries to among the necessities of the modern age.
The Internet is not a wild, wild west in need of civilizing, as French President Sarkozy told the gathered digerati before the G8 meetings a few weeks ago. The Criminal Code of Canada is used to fight child pornography, pedophilia, copyright infringement, hacking, identity fraud, espionage, hate speech and lots of other detestable stuff. It is not clear why we need a new Investigative Powers act at all.
Besides, in many instances, ISPs and telecom providers already co-operate with law enforcement officials. Project Cleanfeed, for instance, involves ISPs working hand-in-hand with police to identify and block problematic URLs, mostly for the purposes of blocking access to child pornography. I know people involved in this project, and it is nasty stuff indeed.
The RCMP works hand-in-hand with the Immigration and Customs Enforcement (ICE) in the U.S. and with thirty similar agencies worldwide to discover and disable connections to websites aiding in the exchange of pirated and counterfeited goods. The end result is domain name seizures, websites that go dark and criminals prosecuted. Along the way, however, ISPs, search engines, Facebook, Paypal, Visa and Twitter have been roped into the battle against more dubious foes, such as Wikileaks – another "evil" lurking about the dark corners of cyberspace in the eyes of some folks in the law and order crowd.
The lines between crime and communication grow fuzzy indeed, and thus the great clash of security and censorship. One virtue of the Bill C-51 is that it will bring things that are already happening out into the open and make things more transparent.
But beyond these considerable problems, there's more. First, there is no demonstrated need for a new law if the Criminal Code is working fine, as it seems to be in this instance.
Second, this will cost a lot, and we will pay for it. Since official policy is to let the market rip, this means that we won't even get the benefit of gold-plated networks but rather the golden handcuffs that come along with a secretive network surveillance regime that is implemented and operated at the behest of the state, but carried out on the backs of private enterprise – telephone companies, ISPs, and search engines – and at the possible expense of people's rights and liberties.
Third, gateways – which ISPs and search engines are – should not be gatekeepers. Full stop. Except, perhaps, if there is a warrant and just cause, but the last version of the bill contained no such provisions.
Finally, the anticipated new regime of network control and surveillance would not, on its own, be the straw that broke the camel's back. However, it would be a heavy burden to carry alongside existing efforts to enroll ISPs and search engines in the copyright wars, the ISPs' own moves to transform the Internet into a pay-per model through usage-based billing and bandwidth caps and the fact that all the major ISPs (except Telus) are already vertically integrated into a handful of sprawling telecom-media giants that seem intent on using them as a front line of defence for their television business.
Seen in the context of the copyright wars, usage-based billing and vertical integration, the Investigative Powers has the potential of posing a great threat to personal privacy in the name of security. Each measure on its own chips away at the ideals of an open Internet. If left to stand, the combined force of all four measures could transform the Internet into one of the most regulated media spaces ever known.
Dwayne Winseck is a communications professor at the School of Journalism and Communication, Carleton University in Ottawa. Prof. Winseck been researching and writing about media, telecoms and the Internet in one way or another for nearly 20 years. You can read more comment on his blog, Mediamorphis . His column will appear every second Tuesday.