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Canada’s Digital Privacy Laws – Make Your Voice Heard

4 December 2016 433 views No Comment

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The Government of Canada is currently seeking public opinion concerning the potential tightening of digital surveillance on its own citizens. This post on Toms Hardware does a fairly good job of breaking down what is being asked of Canadians, but to summarize:

– The government is seeking backdoors into existing encryptions technologies that would allow law enforcement to access any data it wanted to.

– Barring that, the government is seeking the ability to compel service providers as well as individuals to decrypt any data they were asked to.

– The government is also asking for the right to obtain what it terms ‘basic subscriber information’ from any online service operating in Canada, without a warrant. This includes identifying information such as IP address, home address, email address, phone number, etc.

– Finally, the government wants to mandate a period of records storage for each digital service or internet service provider, and that these records be available to law enforcement.

These are alarming demands that clearly herald the beginning of a digital surveillance apparatus that could, over time, gradually extend into every facet of the lives of Canadians. Similar examples can be found all over the world, most notably in England, as noted by Toms Hardware, where recent similar legislation has been successfully passed.

It also points to the fundamental disconnect that drives these types of surveillance initiatives: the idea that as technology progresses, it’s somehow reasonable to expect law enforcement to be given the ability to circumvent it, for our own safety and protection, of course, rather than learn to deal with it within the existing legal framework that defines Canadian society.

Fortunately, your voice can be heard. Click here to give the Canadian government your opinion during this period of public consultation. Let the people who represent us know how you feel about digital privacy, digital surveillance, and your rights as a citizen.

I’ve reprinted the questions asked by the consultation below in bold, with my own answers beneath each point.

Data Retention

How can the Government address challenges to law enforcement and national security investigations posed by the evolving technological landscape in a manner that is consistent with Canadian values, including respect for privacy, provision of security and the protection of economic interests?

It would be helpful for law enforcement agencies to stop treating each new technological development as an open invitation to subvert existing privacy protections and the rights of Canadian citizens. When Canadians started driving cars, police officers didn’t ask for devices that disabled cars so that they could only drive as quickly as a horse could follow. They simply bought cars themselves and began to use them. Similarly, there is no logical argument to be made that encryption technology be permanently weakened and rendered useless by backdoors simply because it allows citizens to draw the curtains in their digital homes. Law enforcement simply needs to realize that it is a part of society – one of its organs – and not a guiding force that gets to decide which technologies are adopted by citizens, and which ones are not.

In the physical world, if the police obtain a search warrant from a judge to enter your home to conduct an investigation, they are authorized to access your home. Should investigative agencies operate any differently in the digital world?

No, no differently.  I find the way this position has been presented above to be alarming and disingenuous.  For example, the quote “Some other countries allow police and intelligence agencies to obtain basic subscriber information without going to court.” Some countries also have public executions, stone people to death, and don’t allow women to hold basic human rights. Is the solution to determining what’s best for Canada to look outside of our borders? No, the solution is to continue to make policies that are consistent with Canadian legal precedents and laws.

It comes down to the consideration that, like my home, my digital assets are also my property, subject to the same protections that any physical assets would have as well. To take a position that is counter to this would be to significantly inhibit Canada’s ability – and the abilities of its citizens – to participate in the digital economy in a meaningful way.

Currently, investigative agencies have tools in the digital world similar to those in the physical world. As this document shows, there is concern that these tools may not be as effective in the digital world as in the physical world. Should the Government update these tools to better support digital/online investigations?

This question is worded so poorly as to be laughable. To answer no is absurd, because clearly up to date tools are required in ANY facet of modern enterprise, including law enforcement, or medicine, or education. To say yes is to allow the person who answers to be lead to a straw man argument that updated tools by default means backdoors into encrypted systems and total surveillance.

Is your expectation of privacy different in the digital world than in the physical world?

I expect 100 percent privacy from government and law enforcement intrusion into either, absent a legal warrant or a defensible legal pretext (example, entering a home because someone screams for help inside).

Basic Subscriber Information (BSI)

Since the Spencer decision, police and national security agencies have had difficulty obtaining BSI in a timely and efficient manner. This has limited their ability to carry out their mandates, including law enforcement’s investigation of crimes. If the Government developed legislation to respond to this problem, under what circumstances should BSI (such as name, address, telephone number and email address) be available to these agencies? For example, some circumstances may include, but are not limited to: emergency circumstances, to help find a missing person, if there is suspicion of a crime, to further an investigative lead, etc…

I expect law enforcement to obtain a warrant before accessing any of this information. That is the only circumstance I consider it acceptable. Any other ‘legislation’ to be ‘developed’ would be in no uncertain terms an end run around current legal protections for privacy. This eventuality is clearly presented in the question being asked, which specifically references a court decision that law enforcement wants to ignore. A brazen indication of intent.

Do you consider your basic identifying information identified through BSI (such as name, home address, phone number and email address) to be as private as the contents of your emails? your personal diary? your financial records? your medical records? Why or why not?

Yes. If we have laws protecting this information from disseminated to third parties looking to profit off of it for a long list of reasons and in may different forms and packages, then clearly it has value to Canadians. Therefore, it should be treated as valuable by the government as well.

Do you see a difference between the police having access to your name, home address and phone number, and the police having access to your Internet address, such as your IP address or email address?

Yes, because my home address doesn’t leave its property and roam all over the world.  My IP address is a clear way to track and maintain a log of my activities, which is a clear violation of my privacy. This would be similar to maintaining surveillance on someone’s movements without a court order, or outside the context of an investigation.

Look, here in Montreal we have had several high profile cases of the Montreal police monitoring the movements and phone records of journalists. Are you trying to tell me that my IP address would be treated any differently if it were widely available to law enforcement? You would be creating massive potential for abuse.

Interception Capability

The Government has made previous attempts to enact interception capability legislation. This legislation would have required domestic communications service providers to create and maintain networks that would be technically capable of intercepting communications if a court order authorized the interception. These legislative proposals were controversial with Canadians. Some were concerned about privacy intrusions. As well, the Canadian communications industry was concerned about how such laws might affect it.

You do realize that the above grouping of sentences was not a question – it was just a series of factual statements.

Why are you surprised that the attempt to create a vast, state-controlled surveillance apparatus would ALARM Canadian citizens accustomed to living in a free society? Many here remember what it was like to live to live in countries where exactly these types of systems existed – such as the Stasi – and are easily able to see the similarities, regardless of the differences in technologies and implementations.

Should Canada’s laws help to ensure that consistent interception capabilities are available through domestic communications service provider networks when a court order authorizing interception is granted by the courts?

No. Never. Occasionally, police officers have to pursue a suspect on a public road. Would you mandate that such a road be equipped with roadblocks at regular intervals to slow pursuers? Of course not. Would you install a device in every automobile that disabled it instantly in the event of a pursuit. No, you wouldn’t – even though this is currently technologically possible. It’s not society or business’s responsibility to facilitate government surveillance.

This statement is very telling: “some communications providers are unable to comply with court orders to cooperate because they do not maintain the technical capability to do so.” You know, it’s also impossible for law enforcement officers to stream a live video feed from my home because I do not maintain the technical capability for them to do so. Why is that? Because it’s not in my best interest, nor is it my responsibility, to allow for total government surveillance of my every waking – and sleeping – moment. The same is true for service providers and the digital activities of their customers.

Encryption

If the Government were to consider options to address the challenges encryption poses in law enforcement and national security investigations, in what circumstances, if any, should investigators have the ability to compel individuals or companies to assist with decryption?

No, because this erodes all trust in encryption. What is the use of an encryption technology if someone other than the owner has a key?

How can law enforcement and national security agencies reduce the effectiveness of encryption for individuals and organizations involved in crime or threats to the security of Canada, yet not limit the beneficial uses of encryption by those not involved in illegal activities?

You can’t, anymore than you can put a chip in a human being’s brain to know what they are thinking at any given time. There are limits to the powers of any law enforcement agency in a free society. Accept those limits and operate within them.

Going back to automobiles – you can’t prevent a criminal from using a getaway car in a bank robbery, can you? Yet cars are not equipped with instant kill-switch devices that render them immobile in the event of a police pursuit. Explain the difference to me, please.

Data Retention

Should the law require Canadian service providers to keep telecommunications data for a certain period to ensure that it is available if law enforcement and national security agencies need it for their investigations and a court authorizes access?

No. Again, creating a massive surveillance apparatus and digital information warehouse on its own citizens is the hallmark of a police state, not a free society.

If the Government of Canada were to enact a general data retention requirement, what type of data should be included or excluded? How long should this information be kept?

This requirement should never be enacted by any responsible government.

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