Lawful Access is Dead (For Now): Government Kills Bill C-30

Justice Minister Rob Nicholson announced yesterday that the government will not be proceeding with Bill C-30, the lawful access/Internet surveillance legislation:

We will not be proceeding with Bill C-30 and any attempts that we
will continue to have to modernize the Criminal Code will not contain
the measures contained in C-30, including the warrantless mandatory
disclosure of basic subscriber information or the requirement for
telecommunications service providers to build intercept capability
within their systems. We’ve listened to the concerns of Canadians who
have been very clear on this and responding to that.

This shift in policy is remarkable, particularly for a majority
government that has used crime as a legislative wedge issue. Almost one
year ago to the day – on February 13, 2012, Public Safety Minister Vic
Toews infamously told
the House of Commons that critics of his forthcoming bill could stand
with the government or with the child pornographers. Bill C-30 was
introduced the following day, but within two weeks, a massive public
outcry – much of it online – forced the government to quietly suspend
the bill and now a year later openly acknowledge that it is dead.

I think there are at least four takeaways from the lawful access
failure of 2012-13.  The first is that bad policy is hard to
defend.  Successive governments (both Liberal and Conservative)
have introduced lawful access legislation and consistently struggled
to identify actual examples where the current laws are inadequate.
Moreover, the rationale for these laws has constantly shifted – from
terrorism to spam to child pornography to (most recently)
cyber-bullying. The public can sense a failed policy and the current
version of lawful access – with no real attempt to address
legitimate privacy and oversight concerns as well as silence on who
was going to pay the hundreds of millions in surveillance technology
costs – was so bad that even supporters were forced to admit its
overreach. In fact, even as the bill was declared dead, the director
of CSIS acknowledged
“it’s not absolutely critical for us to do our work.”

Second, the lawful access experience in Canada becomes part of the
growing number of Internet advocacy success stories. From the massive
on usage based billing that spurred the government to
effectively order the CRTC to reconsider the issue, to the gradual
shift in copyright reform
that resulted in more user-oriented
provision than any comparable law in the world, Canadians have
demonstrated that they are concerned with digital policies and will
not hesitate to use social media and the Internet to speak out. To
the government’s credit, it paid attention to the lawful access
backlash as Nicholson acknowledged the strong public opposition and
the decision to respond to it.

Third, even with Bill C-30 dead, there is a problem with the current
system of voluntary disclosure of customer information by ISPs. The
lawful access debate placed the spotlight on the fact that ISPs disclose
customer information
tens of thousands of times every year
without court oversight. The law permits these disclosures, but
there are no reporting requirements or accountability mechanisms
built into the process. Those are needed and the government should
move swiftly to add this to the law, either within Bill C-12 (the
PIPEDA reform bill) or Bill C-55, which was introduced yesterday.

Fourth, Bill C-30 may be dead, but lawful access surely is
not.  On the same day the government put the bill out its
misery, it introduced Bill C-55 on warrantless wiretapping. Although
the bill is ostensibly a response to last year’s R v. Tse
from the Supreme Court of Canada, much of the bill is
lifted directly from Bill C-30.  Moreover, there will be other
ways to revive the more troublesome Internet surveillance
provisions. Christopher Parsons points
lawful intercept requirements in the forthcoming spectrum
auction, while many others have discussed
Bill C-12, which includes provisions that encourage personal
information disclosure without court oversight.  Of course,
cynics might also point to the 2007
e from then-Public Safety Minister Stockwell Day
to not introduce mandatory disclosure of personal information
without a warrant. That position was dropped soon after Peter Van
Loan took over the portfolio. 

Lawful access opponents should rightly celebrate the defeat of Bill
C-30 and the government’s recognition that it was a bad bill that
was poorly justified. That said, lawful access will return. Law
enforcement will continue to lobby for the reforms and Public Safety
officials, who have shown little pretense of balance on this issue,
will keep the file alive in the hope that it can be revived. Perhaps
it will come as a single bill, though more likely the policies will
be found in smaller pieces of legislation or non-legislative
policies that are more difficult to identify and oppose.  Bill
C-30 is dead, but the fight over Internet surveillance and
foundational privacy principles such as court oversight for
mandatory disclosure of personal information will continue for the
foreseeable future.

via Michael Geist Blog

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