Harper’s promise: a warrantless online surveillance state

Why ’lawful access’ legislation is on its way and why that should worry you

“We are not in any way shape or form wanting extra powers for police to pursue [information online] without warrants.”

That was Stockwell Day, speaking to me in 2007. He was the Harper government’s public safety minister at the time, and his office came into controversy when consultation documents surfaced suggesting that the Conservatives were drafting a “lawful access” crime bill that would greatly expand the powers of police to obtain personal information about Canadians from their Internet service providers without court oversight.

If such a bill were to become law, cops would no longer need a warrant to trace, say, an Internet comment to a citizen’s name, IP address, email address, home address, and cell phone number. In fact, as long as the police had any one of the above, they could request the rest of the info from ISPs without a judge ever considering the need for such disclosure.

But Minister Day was emphatic—my concerns were misplaced, the controversy unnecessary. He had no intention of proposing any such bill. He claimed that the leaked document was a leftover from the previous Liberal administration. He later told the Ottawa Citizen that though such powers would help the police, they were an affront to “our expectation of rights to privacy.”

And warrantless web tracing?

“That is not the path we’re walking down at all, ” said Day.

Two years later, the Conservatives walked down that path.

After a cabinet shuffle, the public safety minister in June 2009 was Peter Van Loan, and he sang a very different tune to me about the need for expanded police powers.

Van Loan tabled a ‘lawful access’ bill that would give police exactly the powers Stockwell Day told me they wouldn’t need. The new minister saw this as no big deal—Canadians, he told me, had “no reasonable expectation of privacy” when it came to this information. In other words, when you leave a comment on this website under a pseudonym, it is unreasonable for you to expect that the police will not be able to trace it to your name, cell number, home address, email address, and other web activity, by linking it to your I.P. address. Such information, he told me, is just like a listing in the phone book.

Others begged to differ. The Ottawa Citizen called the ‘lawful access’ bill “out of balance,” Colby Cosh called it “a bogus, ill-advised expansion of State power,” and the Montreal Gazette called it “unnecessary” and, more to the point, “bad”.

Last month, Canada’s privacy commissioner, Jennifer Stoddart, along with every provincial privacy commissioner in the country, sent Public Safety Canada a letter expressing their concerns about the lawful access bill. Namely, they didn’t see any need for it—ISPs already hand over whatever information police ask for, without a warrant, when the cops claim there is immediate danger or child endangerment. They called the bill “problematic”  and wrote that there was “insufficient justification” for the new powers, suggesting “less intrusive” ways for law enforcement to fight crime.

For years, lawful access has been bouncing around, awaiting debate and modification as yet another cabinet shuffle brought Vic Toews into the public safety minister’s office.  Now the Harper campaign promises us that all their outstanding crime bills will be bundled together and shoved through Parliament within 100 days of a Conservative victory.

It’s a promise to do significant damage to the civil liberties of every Canadian, and one Harper’s opponents would do well to pounce on.