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There's a kind of glaring irony to the fact that the same government that opposed the long-gun registry and the long-form census on the grounds that they invade the privacy of Canadians is now proposing a law that would let police reach into ISPs to get Canadians' phone numbers, IP addresses, e-mail addresses and other information without a warrant. (Darryl Dyck/The Canadian Press)
There's a kind of glaring irony to the fact that the same government that opposed the long-gun registry and the long-form census on the grounds that they invade the privacy of Canadians is now proposing a law that would let police reach into ISPs to get Canadians' phone numbers, IP addresses, e-mail addresses and other information without a warrant. (Darryl Dyck/The Canadian Press)

Analysis

'Snoop and spy' bill could be costly overreach Add to ...

Vic Toews, Canada’s Public Safety Minister, has framed any debate of the Conservative government's new lawful access bill in the simplest terms: Canadians can either stand with the government, or with child pornographers.

Of course, the dichotomy is false. It is possible to oppose this bill without supporting child pornography. The federal and provincial privacy commissioners who have already spoken out against the proposed law didn't do so because they've fallen under the lobbying spell of Big Paedophilia.

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For the record, the new bill (dubbed The Protecting Children From Internet Predators Act) would give police the ability to demand personal customer information, such as names, phone numbers, IP addresses and other data, from Internet Service Providers without a warrant. It would also force those ISPs to install surveillance capability on their networks. With a warrant, police could monitor and collect detailed information on a user's online activity.

Proponents of similarly sweeping new Internet laws, including such heavily criticized pieces of legislation as the Stop Online Piracy Act (SOPA) in the United States, have long sought to portray critics of those proposed laws as insidious – the kind of people who don't want any law to impede their ability to do something immoral or illegal online. If you don't download copyrighted material, why oppose a strong new copyright law? If you don't download child pornography, why oppose a strong new lawful access bill? If you have nothing to hide, you have nothing to fear.

Ignore for a moment that travelling down that rhetorical road eventually leads to a police state, or that many of Canada's top privacy experts are opposed to the new lawful access bill for entirely legitimate reasons. There's another reason ordinary Canadians should be wary of this bill: It will likely cost them lots of money.

Behind the scenes, Canada's biggest ISPs are furious about a proposed law that would force them to install expensive new hardware and software to enable surveillance throughout their technical infrastructure. The ability to monitor and store data from multiple user intercepts isn't cheap. The government is expected to help with cost of installing these tools (which means you will help with those costs), but what about future technologies? What about cloud computing services? What about whatever new platforms and devices that come next? Eventually, ISPs will have to factor the surveillance premium into every new piece of technology they purchase. That likely means you'll start to see that surveillance premium on your bill.

So onerous is the cost of complying with this proposed law that the government will likely give smaller ISPs years-long grace periods to get their networks ready for surveillance – something criminals will no doubt take advantage of.

ISPs are now facing a very fine balance. If police greatly increase their basic information and surveillance requests under the new bill, service providers will have to dedicate more and more resources to snooping on their customers. If police don't increase the number of requests, then ISPs will have spent a lot of money on technical capacity that then sits idle.

The RCMP's own data shows that ISP's provide basic customer data voluntarily roughly 94 per cent of the time. That means a law compelling them to do so would either be mostly redundant, or that police anticipate making lots of requests in the future that ISPs are more likely to refuse.

The government has framed this bill as a necessary legislative tool to combat the most heinous and time-sensitive of crimes – predominantly, child pornography. But the sample uses trotted out in the speaking notes are, for the most part, stunningly bland. Officers want to use Protecting Children From Internet Predators Act to – among other things – find user information in cases where they have stolen property to return or next-of-kin to contact. Presumably such uses constitute the majority of the 6 per cent of cases where ISPs refuse to disclose information.

There's a kind of glaring irony to the fact that the same government that opposed the long-gun registry and the long-form census on the grounds that they invade the privacy of Canadians is now proposing a law that would give police access to Canadians' phone numbers, IP addresses, e-mail addresses and other information without a warrant. Nonetheless, police in this country are often hampered in their attempts to fight Internet-based crime. In a recent conversation, the founder of a Canadian web services provider recalled a case in which police believed they'd found the person responsible for a series of Web-based attacks on his company's servers. When they went to obtain a warrant, he said, the judge denied it, because he didn't understand the data police were showing him. And unlike the case with stiff new copyright laws, ordinary citizens are more likely to support legislation that alters the nature of the Internet if it's in the name of combating violent crime, rather than preserving the movie industry's bottom line.

The lawful access bill isn't all that difficult to fix. Making basic information requests subject to a lower-threshold warrant, explaining exactly how much the surveillance requirements will cost and where that money will come from, and providing detailed reports on warrantless information collection so Canadians can determine whether the proposed law ends up doing little more than enabling police fishing expeditions (which reports the police may end up providing anyway) would go a long way to placating critics.

But that would require compromise. And when the government's view on lawful access is “You're either with us or with the child pornographers,” compromise is unlikely.

Follow on Twitter: @omarelakkad

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