Masthead Editorials Critical of Canadian Surveillance Legislation

There’s a pair of editorials found in two major news outlets in Canada that are critical of the new surveillance legislation the Conservative government of Canada tables in parliament. Both seem to agree that the potential for abuse exists with the new “tools” that would be granted to police. We look at a number of international cases that show that the potential isn’t just some philosophical stance, but a reality.

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

There’s an international movement afoot to get ISPs to more closely monitor their networks and the traffic that flows through it. On the international stage, questions are being raised over ISP or DNS blacklists, ISP level surveillance and data retention. Since no human is perfect, does these new expansions in powers around the world also increase the potential for abuse as well?

The editorial in the National Post comments on the repeated themes on how legislation like warrantless wiretapping was pushed forward in the past. In Canada, it’s the repeated themes of how this is suppose to help save the children from online predators. In North America, there’s also that theme of how it’s suppose to somehow help fight terrorism. The editorial article comments on how such arguments are weak while defending the broadening of surveillance in Canada.

Meanwhile, the Ottawa Citizen echoed those sentiments and also notes how in any given gathering, there are those who are present for less than ideal reasons. Not only this, but also puts forth the question, since when do judges block a police investigation on a regular basis and prevents them from getting a warrant in the first place? The editorial suggests that apologists for the surveillance legislation has yet to provide such evidence and concludes that given another Conservative member had issues with the Google van taking pictures around neighbourhoods for their Street View project (they were definitely questioned in committee over privacy concerns) and given that the Safety Minister is pushing for surveillance legislation that would diminish privacy much more severely than any fleet of vans with 360 degree cameras ever could, the party that argues for small government is sending mixed messages to the public.

There was another theme both editorials conveyed which has been an underlying issue ever since the legislation was tabled, the fact that the minister who tabled the legislation was the same minister who, in a different time, promised to not expand surveillance powers and have such surveillance laws forgo the need of a warrant. Was this part of the political deal when Canadians saw their election postponed to at least the Fall? Who knows. At the very least, though, a backtrack is a backtrack and for the months leading up to the tabling of the legislation, the Liberal party has continually pushed to have surveillance legislation tabled in the House of Commons (Just use Google to search through the Hansard for things like ‘modernization’, ‘2008’, ‘2009’ and ‘investigation techniques’) With support from both the Liberal party and the Conservative party, the legislation is pretty much guaranteed to pass save for another election.

But what of the fears that this opens the floodgates for abuse? The legislation does, indeed, call for the installation of surveillance technology on the ISPs in Canada. We’ve looked through Bill C-46 and Bill C-47 to find that out. While the editorials have pointed to evidence in Canada that police are actually prone to doing less than legal things (one pointed to unauthorized plate checking for one) However, we also know that, internationally speaking, when things like ISP level wiretapping occur, not only has it opened the floodgates for abuse in the legal and law enforcement sphere, but it also opened the floodgates for abuse in the commercial sphere as well.

We begin our look at the country that is geographically closest to Canada. The neighbours to the south. The United States where it has appeared that the debate on such things looks as though security trumps privacy, an ironic turn of events considering that famous quote from Benjamin Franklin that rings true today, which says “He who sacrifices freedom for security deserves neither”, actually comes from the United States in the first place. The NYTimes unearthed quite a lot recently about the Bush promoted AT&T wiretapping program recently. Among the evidence was commentary on how, probably millions of, Americans were wiretapped that went far beyond the legal restraints surrounding such activity. One of those Americans who was illegally wiretapped? Former president Bill Clinton. One can get the impression that the unauthorized wiretapping is starting to get out of control.

It is important to note the differences between the case in the United States. In Canada, the proposed legislation would grant eavesdropping to police without a warrant. In the United States, the eavesdropping permits a copy of the traffic flowing through ISPs like AT&T and connects that information directly to organizations such as the NSA. While an important difference, when it comes to privacy concerns for many, that is little more than a clerical difference rather than a significant difference. In the end, police obtained unfettered access to details of your activity online.

Of course, an increase in state powers have gained the interest of commercial entities as well. The most vivid also happening to be the most recent. Austria is a member of the European Union. In the European Union, there is a law that makes ISPs retain data of all of it’s users – also known as Data Retention. While there was a movement to stop the data retention directive, data retention ultimately became law. It appears that an organization of Austrian newspapers have been eyeing that data retention and have called upon the government to use data retention to enforce copyright. There was a stunning quote from the organization that seemed to cap off this attempt which says, “Privacy should not be used as a cover for rights abused.” Forget child abuse. Forget the terrorists. Forget identity thieves. The debate, judging by that development, has shifted to whether or not commercial entities should have access to that data retention for their commercial interests. The real question is, where do these surveillance demands end? What interests should be brought up to the level of access enjoyed by entities interested in, say, national security? As we’ve noticed, this kind of thing isn’t an isolated incident either in Europe.

Last year, in Germany, Deutsche Telekom was raided over spying allegations. In essence, the telecommunications company was worried that insiders were leaking information to reporters, so they monitored their employees – illegally. Since the Canadian case is about installing surveillance infrastructure, it’s important to note how installing such technology would open up potential abuse precisely like this. Legal or not, the potential is there.

Recently, Germany passed legislation that would bring in mandatory censorship legislation. While not wiretapping or surveillance, it does force ISPs to grant new powers over the internet – in this case, blocking a whole list of websites. Isn’t it interesting that just three months earlier, German book publishers wanted to add Rapidshare to that blacklist?

Even further back into January of this year, there were things that happened that forced the German government to say that data retention is for terrorists, not copyright infringers. In response, the IFPI said that it would be contradictory for the government to not hand over all the information over to them for copyright legal pursuits.

What about free speech? A government mandated blacklist in many countries is said to stop child pornography. Australians know all too well how web censorship like that can go too far after the ACMA blacklist leak showed perfectly legal sites on them. While the governing body denied the authenticity of the leaked list, there have been suggestions that the blacklist did come from an ISP in the first place and some of those sites have been added on there because of commercial reasons. Over in Britain, a similar incident happened where British ISPs blocked Wikipedia.

Going further, these aren’t the only cases where new surveillance or censorship measures were attempted to be used for reasons beyond what the legislation was promoted to be stopping in the first place. Already, the copyright industry, along with a few other companies, have tried multiple times to use surveillance or censorship for commercial gains or interests. Legal websites have been put on national blacklists in the past in other countries. The question many Canadians should be asking over top of other questions that have already been raised is where would these intrusions on internet users rights end? Is this legislation in Canada merely an update or modernization and that would be the end of it or would further demands be raised if the currently proposed legislation is passed? All this given multiple international examples.

It certainly, from this standpoint, that this surveillance legislation is not only bad for users privacy, but also the tip of the iceberg as well.

[Hat Tip: Michael Geist 1 and 2]

Drew Wilson on Twitter: @icecube85 and Google+.

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