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Van Loan's Misleading Claims: Case for Lawful Access Not Closed

By Michael Geist

The push for new Internet surveillance capabilities - dubbed the "lawful access" initiative - dates back to 1999, when government officials began crafting proposals to institute new surveillance technologies within Canadian networks along with additional legal powers to access surveillance and subscriber information.  Over the past decade, lawful access has stalled despite public consultations, bills that have died on the order paper, and even a promise from former public safety minister Stockwell Day to avoid mandatory disclosure of personal information without court oversight. Last June, current Public Safety Minister Peter Van Loan tabled the latest lawful access legislative package.  Much like its predecessors, the bill establishes new surveillance requirements for Internet service providers. In an about-face from the Day commitment however, it also features mandatory disclosure of customer information, including name, address, IP address, and email address upon request and without court oversight.

My weekly technology law column (Toronto Star version, Ottawa Citizen version, homepage version) notes that lawful access has long faced at least two significant barriers.  The first involves ISP costs associated with installing new equipment and responding to disclosure requests.  The government has attempted to address those concerns by promising to help pay the bills.  It plans to provide some funding for new equipment and, in a little noticed provision, has opened the door to paying ISPs for providing customer name and address information to law enforcement authorities.  

The second barrier involves lingering questions about the need for lawful access.  Critics have pointed to the fact that Canadian law enforcement has successfully used the Internet in hundreds of investigations, including a high-profile Toronto terrorism case. Moreover, the law already grants ISPs the options to disclose customer name and address information.

Van Loan argues that the changes are long overdue, pointing to a kidnapping case in Vancouver earlier this year as evidence of the need for legislative change.  In several interviews, he has described witnessing an emergency situation in which Vancouver police waited 36 hours to get the information they needed in order to obtain a warrant for customer name and address information.

While that makes for a powerful example, a more detailed investigation into the specifics of the case reveals that Van Loan's rendition leaves out some important details.  Over the summer, I launched Access to Information requests with the Ministry of Public Safety, the RCMP, and the Vancouver Police Department, seeking further information on the kidnapping case.

Both Public Safety and the RCMP responded that they had no additional information to provide other than the transcripts of the minister's interviews.  The Vancouver Police identified the case as a February kidnapping (not March as suggested by Van Loan).  The suspect was ultimately arrested and the case is currently before the courts, therefore limiting the department's ability to provide much detailed information.  

However, in an admission that goes to the heart of Van Loan's claims, a legal adviser disclosed that no ISP records were sought during the investigation.  In other words, the case the minister of public safety has presented as evidence of the need for mandatory disclosure of ISP customer records never involved a request for such records and yielded an arrest using the current law.

Without a doubt, society needs to ensure that police have the ability to deal with serious crime.  Yet, public concern about lawful access comes directly from privacy fears and the absence of compelling evidence that the current system has created serious barriers to police investigations.  The latest reliance on a case that did not even involve ISP records should only heighten skepticism about the government's proposed lawful access reforms.

Full post as published by Michael Geist on September 29, 2009 (boomark / email).