How lawful access may backfire

The buzz I've been hearing suggests that the Harper Government will be tabling its omnibus crime legislation tomorrow (September 20, 2011). There's still some uncertainty about whether the most offensive provisions will be in there, but in case they are I'd like to add a thought about how allowing warrantless access to customer information may backfire.

I've done my fair share of sleuthing on behalf of clients to track down people who use the supposed cloak of anonymity to harm others and, almost universally, the miscreants do not take any steps to cover their tracks. (Anyone with an interest in doing so, a general knowledge of how the net works and how these things are investigated can easily make investigations very, very difficult.)

But if it becomes common knowledge that the police can put all the pieces of your online meanderings together without any warrant or any suspicion of wrong-doing, more people will take steps to cover their tracks online. Not because they have something to hide, but out of fear of abuse of this new police power. And the more that people routinely cover their tracks, the greater the likelihood that people who are doing Bad Things will routinely use very easily obtained technologies and easily adopted practices to effectively disappear.

The power to connect someone's online actions to their real-word identity should be used sparingly and only when an impartial judge determines that the public interest in a real criminal investigation overrides the individual's privacy interests. The police cannot be counted on to make that determination and this much coveted power may backfire.