Stop hiding behind the phone book, Mr. Toews

Canada’s federal Privacy Commissioner, along with her provincial and territorial counterparts, has serious concerns regarding the federal government’s proposed lawful access legislation. These include the fact that the government has provided no evidence for the necessity of this expansion of state surveillance powers or why it requires departures from the standards of judicial oversight we usually apply when the police want access to private information. Public Safety Minister Vic Toews has responded by throwing the phone book at them, including in a recent letter to The Globe.

Usually, if the state wants access to private information, our Constitution requires prior judicial authorization (a warrant) on a standard of reasonable and probable grounds. The point is not to prevent state access but to ensure that such access occurs within a framework of accountability and oversight. Some departures from this are tolerated, such as when the state interest goes beyond routine law enforcement or where there is a diminished expectation of privacy in the information.

What Mr. Toews seems to have in mind with his phone-book analogy is something like the following: The police can get access to the content of your telephone calls through a special warrant that receives our highest level of protection. The police can also get access to your incoming and outgoing telephone numbers by getting a warrant on a much lower standard of reasonable suspicion. Finally, the police can match people’s names and addresses to particular telephone numbers by using the phone book (ignore for a moment the fact that one can request an unlisted number).

The lawful access legislation largely replicates this: strong protection for the content of communications, weaker protection for traffic data (who communicates with your computer and whom your computer communicates with, when, for how long) and no protection for subscriber information (name, address, IP address, mobile identification number) that is really just like the phone book. Just as we tolerate departures from our standards for judicial oversight in relation to telephone numbers, we should tolerate it in relation to their Internet analogs because the privacy implications are the same.

The problem is that using the Internet is not like using a telephone.

What did I do online this week? I corresponded with colleagues, students, professional contacts, family and friends and checked out some online discussion forums. I did research for work and for personal projects, reading many Web pages, downloading articles and purchasing books. I shopped and downloaded music and movies. Other aspects of my life are stored online, including my calendar, my task list and many of my work files. I access this from work, from home, from my smartphone and from my tablet.

What did I do on the phone? I talked to my mom and some telemarketers.

Mr. Toews is welcome to know my mom’s number and even figure out how often I phone home. Heck, he can call her if he likes, although he might get an earful. But getting access to the numbers I dial or opening the phone book to match these to a particular name and address is simply not the same thing as getting access to my Internet traffic data and subscriber information. The Internet is not a specific means of communication – it is the basic platform through which I engage in many of my most important professional and personal tasks.

This is why the digital trail I leave, the one Mr. Toews wants access to, is highly revealing, even if he never reads the content of my e-mail. This is private information and deserves protection through our existing standards of oversight and accountability, not something less.

The government needs to stop hiding behind the phone book. Canadians require a reasoned response that shows us the evidence for why the new Internet surveillance powers are both necessary and minimally invasive.

In the meantime, perhaps somebody should buy Mr. Toews a smartphone.

Origin
Source: Globe&Mail