Friday, November 04, 2011

What's the justification for warrantless access to customer data in "lawful access"

The Public Safety Minister and various police folks are arguing that telecom operators should have to hand over any and all of the following information without a warrant and without an underlying criminal investigation: name, address, telephone number and electronic mail address, Internet protocol address, mobile identification number, electronic serial number, local service provider identifier, international mobile equipment identity number, international mobile subscriber identity number and subscriber identity module card number that are associated with the subscriber’s service and equipment.

None of them have come up with any shred of a justification for such measures, other than empty platitudes that come down to "think of the children" and broken analogies that liken the above information to what you'd find in a phone book. Since both of these supposed justifications are--on their face--worthless, let's speculate about what the real justification might be and whether they can be properly addressed.

  1. Police need this information to get bad guys but often can't convince a judge that they should get a search warrant or a production order for this information. - The answer is that if you can't convince a judge that the public interest in the police obtaining this information outweighs the individual right of privacy, then you should not be getting it. By definition, it would be an unconstitutional invasion of privacy.
  2. Police need this information to get bad guys but it takes too long to get a warrant or a production order. - This is a resources or a procedures issue. Frankly, I want it to take some time and effort on the part of the police to be able to pry into the private lives of Canadians. But if it really takes too long, streamline the processes and appoint more judges and justices of the peace. Don't sacrifice individual privacy on the altar of cost-cutting.
  3. Police URGENTLY need this information to get bad guys and there are lives hanging in the balance. - That's why we have telewarrants and exigent circumstances. Don't use a non-problem to justify stripping away individual rights from Canadians. Every Canadian telco I've spoken to on the topic tells me they will provide this information if a police officer says that the circumstances are exigent.

Maybe I'm missing something here and there is an adequate justification that I just haven't heard yet. If you've got one, leave it in the comments. I'd like to hear it.


David Canton said...

I agree completely.

Sharon said...

I've asked several high-ranking members of law enforcement how they'll feel when their own emails, texts, web browsing history, etc., are available/revealed upon request, without judicial scrutiny. None of them has ventured any remarks that could be construed as out-of-step with the position of the Canadian Association of Chiefs of Police -- which is in favor of (l)awful access. Sadly, more than one cop (and several private sector folk) said that they're not allowed to express their own views if those differ from department/company policy; and that the inevitable retribution would, of course, have nothing to do with them expressing personal opinions. (It would seem that Charter rights are easily limited when one works in some large organizations.)

Media coverage, discussion, and petitions are certainly valuable. But it might be a very interesting and productive exercise if a flurry of access requests were to arrive in Ottawa, seeking information about various aspects of (l)awful access. A sudden influx of requests would no doubt burden federal ATIPs left to deal with the requests a timely manner; but it would send a very clear message to the government that the electorate really does give a damn and wants to know what the government is doing and why.

Anonymous said...

I can't reconcile this legislation which is supposed to be "anti-crime" related with the decision to discontinue the Long Gun Registry. It appears gun owners don't want their information to be available to law enforcement agencies while computer owners have no privacy and personal information protection. The Province of Quebec has requested the Gun Registry information but the Federal Government said it would infringe on the gun owners' privacy....

Anonymous said...

Totally agree with the article and comments. This does come across as being instigated by others and being un-Canadian. The battle against any for un fundalmentalism, can not sacrifice the freedoms we have! I prreech openness with a balanced and justified privacy intrusion.

Sure hope that this is NOT a fait acompli.

83bj60 said...

Excellent post that articulates very, very well what I (and every other person I have talked to) have been thinking all along.

This is such a blatant move towards a police state I cannot believe this has NOT originated from the fascist hardliners (I'm not kidding when I use the term - history IS repeating itself) that have taken over government south of the border.

Fact of the matter is, those in power, who have had it easy until recently to keep citizens in ignorance, are seriously threatened by the direct access to information the internet has given everyone and the abuses it has exposed (remember Cablegate and the criminal incitement to murder, from people in government such as Tom Flanagan here, a key adviser to Stephen Harper, for which any ordinary person who have landed in prison), that they are becoming really scared that what happened in Arab states this year will spread worldwide with demands for true democracy, which can only be guaranteed by the protection of anonymity.

Ergo, if, as a Government, you can't keep your actions hidden from the constituents you are supposed to serve, make sure privacy is killed so that you can easily threaten them into silence.

If that is not clear and obvious enough for all to see that it is a fundamental move to repress basic human rights we have gained in the past two or three hundred years, and we do nothing about it, we are all doomed.