The seemingly dead debate surrounding lawful access is potentially making a return with a case currently before the Supreme Court.
When law enforcement suspects unlawful activity, do they need a warrant to unmask the identity behind that IP address? This is a question that is at the heart of a number of privacy debates over the years. In Canada, one of the biggest debates of old surrounded a concept called “lawful access”. For most readers today, this is probably a very foreign concept, but if you have followed my coverage from the very beginning, this concept might ring a vague bell. Don’t worry if you don’t remember this, though, this goes back a very long way.
In the mid-2000’s, during the Paul Martin Liberal government (yes, that far back), the Canadian government introduced surveillance legislation known as Bill C-74. The bill brought forward this concept of “lawful access” where police shouldn’t need a warrant to unmask individuals behind an IP address. Obviously, an IP address really isn’t sufficient evidence to point to a physical person given the well known issue of multiple people using the same IP address, authorized or otherwise. Still, police and the security establishment were demanding that seeking a warrant was just too much darn work and they really need to be catching the bad guys. Therefore, they shouldn’t need a warrant to unmask the identities of people behind IP addresses.
This push to erode personal privacy was met with fierce resistance, not only from well established digital and civil rights organizations, but also new organizations willing to take up the cause as well. It was one of many reasons that Canadians ended up being fed up with the Liberal party. In 2005, after many delays due to the growing opposition, Bill C-74 died when the election was called.
This, of course, gave rise to a government that was certainly no better: the Harper Conservative government. While a number of experts were hoping that the Conservatives would be different and bring in change as promised, no change, at least, as far as the lawful access debate was concerned, was forthcoming. Harper did a quick copy and paste job of the lawful access legislation and picked up where the Liberals left off in pushing such an awful piece of legislation (one organization called it “(l)awful access”). This, obviously, led to more opposition from the same organizations and individuals. Fortunately, that ugly piece of legislation died when the election was called.
When Harper won the subsequent election, the government re-introduced the legislation, determined to give the middle finger to Canadians and push to destroy the basic civil right of personal privacy. After a significant push from the government and significant pushback from civil society, not to mention from the general public, the legislation ultimately died on the order paper when the next election was called.
With both parties pushing to destroy the Canadian Charter of Rights and Freedoms in this manner, it seemed like this would be a continual cycle until a sufficiently dictatorial government finally took power and fully rammed the bill through despite the universal condemnation. In 2017, however, a committee recommended against pushing lawful access. This renewed hope that the governments war on the Canadian people will finally end with the people winning out. We kept an eye out for developments in this area, but non were forthcoming. Through attrition, it seemed that the people had won and the debate finally went dormant.
Now, imagine my disgust when, 7 years later, it’s possible that this debate might actually get resurrected yet again. It isn’t through a new push by the government, but rather, a particularly dark turn in a court case that is currently headed to the Supreme Court of Canada. From the National Post:
The Supreme Court of Canada will hear arguments Tuesday on whether police need a court order to obtain an individual’s IP address, in a case civil liberties groups say has Canadians’ online privacy at stake.
“As more of our lives move online, now is a reasonable time to think through what should be the constraints on state power when it comes to watching what we do online. At its core, this case is about that,” Brenda McPhail, the director of privacy, technology and surveillance at the Canadian Civil Liberties Association, said in an interview.
The CCLA argued in court documents that “people expect to access the internet without police obtaining a record of their access without warrant. They expect to be free from police post-hoc surveillance unless warranted.”
The case in front of the Supreme Court, R v Bykovets, centres around an Alberta man convicted of using unauthorized credit card data to buy gift cards online, and then using those gift cards to make purchases in store.
It’s already established law that police need a production order to obtain subscriber information from telecom companies. The issue in front of the Supreme Court now is whether law enforcement should also have to go to court in order to obtain the IP address.
The article further notes that the Canadian courts have been reluctant in the past to just hand over personal information without a warrant. After all, there is the requirement of a production order that is in place now. What’s more, it sounds like civil liberties organizations have a strong case to say that a warrant is, in fact, needed to obtain such personal information. So, there is reason to be optimistic that things will turn out well, here.
If a ruling were to somehow go sour, though, this opens up the possibility that Canada could find itself plunged into another round of the lawful access debate. This is something that, whether they know it or not, Canadians really do not want. After reporting on the previous rounds of debate, I can say first hand that such debates get extremely ugly. Add in today’s climate of political extremism and you have the very real possibility of this debate being even worse than before. So, here’s hoping that there will be a positive ruling and this debate can stay dormant. It would be in everyone’s interest that this be the outcome.
(Via @Pagmenzies)
Drew Wilson on Twitter: @icecube85 and Facebook.
