CBA Denounces Surveillance Bill

Canada’s Bill C-60, also known as the Copyright Reform Bill, was perhaps one of the better known pieces of Internet legislation. There’s another well known Internet bill.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

This was Bill C-74 which was known as the Canadian surveillance bill. Of course, these were bills of a previous parliamentary session. Now that the bills have died, Canada now operates with a clean slate. While many concerns have been raised over what was in Bill C-60, concerns are starting to surface over what was specifically in Bill C-74. These concerns come from the CBA (Canadian Bar Association).

Not be confused with Garth Brooks’ “American Honkey Tonk Bar Association”, the CBA “…is the essential ally and advocate of all members of the legal profession; it is the voice for all members of the profession and its primary purpose is to serve its members; it is the premier provider of personal and professional development and support to all members of the legal profession; it promotes fair justice systems, facilitates effective law reform, promotes equality in the legal profession and is devoted to the elimination of discrimination” So, in a nutshell, they are a representative of employees involved in the legal profession in Canada.

This issue is not necessarily of concern to intellectual property unlike what was seen – in part or in whole – in June’s swarm of letters. Therefore, this was more appropriately addressed to a different list of ministers. The CBA’s open letter was addressed to Vic Toews, Minister of Justice and Attorney General, Stockwell Day, Minister of Public Safety, and Maxine Bernier, Minister of Industry. Maxine appears to be the only one in this list that also received a bulk of the last wave of open letters.

Privacy is an issue and it relates to Bill C-74, but what is the fuss about? According to the open letter, there was a concern over “a trend by internet service providers (ISPs) to monitor or investigate their customers’ communications, similar to proposals in Bill C-74 from the 38th session of Parliament, the Modernization of Investigative Techniques Act (the Bill).”

One recent article states, “One of Canada’s largest Internet service providers is warning its customers that Big Brother is lurking online, with the federal government expected to revive an Internet surveillance bill.

If the legislation is reintroduced, it could allow police unfettered access to personal information without a warrant, experts warn.”

So where does this idea of this “trend” coming from? Most recently, there was the Comcast story where Comcast said that they would be changing their policy for keeping records from 31 to 180 days. It is believed that Comcast is recording what IP address belonged to which user for those 180 days.

Another news article stated, “Gonzales and FBI Director Robert Mueller privately met with representatives of AOL, Comcast, Google, Microsoft and Verizon last week and said that Internet providers–and perhaps search engines–must retain data for two years to aid in anti-terrorism prosecutions, according to multiple sources familiar with the discussion who spoke on condition of anonymity on Tuesday.”

Going further back, there was a report that said, “The regulation of ISPs in the UK was originally a matter for a voluntary Code of Practice, established back in 2003 presumably as a mechanism to allow the Echelon eavesdropping project time to catch up with intensifying internet usage.

It included a requirement for ISPs to maintain comprehensive records of customer activities for 12 months, with the stark warning that if ISPs refused to comply, then the law would be changed and they would be forced to.”

Perhaps these four may have been a factor in determining that there was a trend of ISP’s ‘monitoring or investigating customers’ communications’ Maybe there were many other indications that a trend was building.

The open letter continued, “The CBA is concerned that ISPs are amending their service agreements with customers to announce that they will “monitor or investigate” how customers user their services, and will “disclose any information necessary to satisfy any laws, regulations or other government request from applicable jurisdiction.” This seems to be introducing a corporate or industry content monitoring scheme, without the necessity of prior authorization or oversight.”

While this portion appears to go in-line with what was said in the Bell story as well as the Comcast policy change story, Comcast isn’t necessarily a big provider in Canada. AT&T (in Canada, widely also known as Telus) on the other hand, is a major DSL provider. Coincidently, AT&T was under fire by the EFF (Electronics Frontier Foundation) for allegedly “illegally spying on millions of Americans” in the USA.

What is known was the position of Telus during Canada’s first case of the recording industry going after alleged file-sharing copyright infringers. The case was documented on CIPPIC’s (Canadian Internet Policy and Public Interest Clinic) website. Telus said in their court documents (PDF) that obtaining evidence against an alleged copyright infringer would be difficult, especially after 30 days. It appeared, though, that if there was compensation for the paid hours needed to obtain the information of the alleged copyright infringer, then such a request would be fulfilled.

The CBA continues in their open letter, “This initiative appears significantly more intrusive than the previous legislative proposal.” So, perhaps this was the result of the Comcast policy change, but perhaps fuelled by other ISP initiatives as demonstrated by AT&T.

The open letter then goes into a more general issue that is being talked about recently. “In consultations about so-called “lawful access”, government officials characterized proposals as simply updating current law enforcement powers to recognize technological realities. The CBA voiced strong concerns about the scope and potential impact of the various proposals.”

This “Lawful Access” has been an issue for many experts who study the internet phenomenon. CIPPIC offers a wide range of resources concerning this. Included in their FAQ, “Lawful access” is a term the Canadian federal government uses to mean the interception of communications and search and seizure of information carried out by law enforcement agencies pursuant to legal authority under the Criminal Code, CSIS Act, Competition Act, and other federal legislation.”

Lawful access was also a part of Bill C-74. Bill C-74 stated, “A police officer may request a telecommunications service provider to provide to the officer the information […] (b) the officer believes on reasonable grounds that the information requested is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and

(c) the information directly concerns either the person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm.

The police officer shall inform the telecommunications service provider of his or her name, rank, badge number and the agency in which he or she is employed and state that the request is being made in exceptional circumstances and under the authority of this subsection.

(2) The telecommunications service provider shall provide the information to the police officer as if the request were made by a designated person”

Online Rights Canada “Opposes Unwarranted Surveillance.” As part of their opposition when the bill was on the order paper, they posted a petition. The petition states, “3. Searches and surveillance should require a warrant, and exceptions to this rule must be narrowly limited, subject to strict conditions and safeguards, and should not be expanded to subscriber data;” The petition has gained 649 signatures out of 1000 to send to Ottawa as of this writing.

Michael Geist followed issues of Lawful access in depth. He’s noted many news headlines this one where current laws over internet surveillance foiled an alleged terror plot via the internet in Canada.

Going back to the CBA open letter, “Our concerns focus on the profound impact on the privacy of individual Canadians, and particularly on the potential to destroy solicitor client privilege by seizing communications between lawyers and clients. Solicitor client privilege is a cornerstone of democracy and the Canadian legal system. It allows individuals to seek legal advice knowing that communications with their counsel will remain private.”

Clearly, one use of the internet is obtaining legal advice privately with the barriers of geography would otherwise not permit. While this is only one use, it appears that this one use will affect many uses should privacy over this kind of information be granted and protected under law.

The open letter then closes with the following, “In our view, a ‘lawful access’ measures must be defined to conform with legal protections and guarantees that safeguard Canadians’ rights and freedoms, and be closely monitored to ensure that conformity […] We urge you to ensure that Canadians’ private information remains privately protected, and that any privilege accorded to communications between lawyers and clients remains inviolate.”

Drew Wilson on Twitter: @icecube85 and Google+.

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