In spite of some initial setbacks, Canada's long-dreaded 'warrantless wiretapping' legislation isn't dead yet.
Bill C-30, originally introduced in February by Public Safety Minister Vic Toews as the Lawful Access Act, has profoundly negative implications for social movements, democracy and an open internet. If passed, it will go a long way toward establishing a surveillance society in Canada. As Prof. David Murakami-Wood noted when I interviewed him last year, this legislation is "part of a wider campaign to control the internet" that is being waged in Canada, the US, Europe, Australia, China and elsewhere. Murakami-Wood is one in a long line of Canadian experts, including the government's own privacy commissioner, who have come out strongly against a Bill that was greeted with almost universal disdain. A mere hour after tabling it, C-30 was rebranded by Toews as the Protecting Children from Internet Predators Act (he must have figured we weren't going to fall for the old 'terrorism' bugaboo). The Act essentially makes Internet Service Providers (ISPs) the handmaidens of law enforcement, forcing them to disclose customers' personal information to police without a court order and mandating the installation of real-time surveillance technologies within their networks. This will allow law enforcement to associate a wealth of personal data with an IP address, building a profile of an individual's internet activity (if you think you have nothing to hide, you might want to consider how online chats about the zombie apocalypse were maliciously misrepresented by the State for political puposes). Although it has long been known that many ISPs already provide no-questions-asked warrantless access voluntarily (Bell Canada, for example, has never bothered denying it, and a source furnished this writer with an example of Shaw Communications doing the same), Bill C-30 would formalize this practice in law, with those unwilling or financially unable to cooperate essentially being forced out of business. Real-time surveillance of users may prove to be an untenable burden for some smaller ISPs. So, a secondary effect of the bill may well be to consolidate network providers. An Internet which is delivered to users by a few large conglomerates will be that much easier to monitor and control (doubters can consult Wu's seminal The Master Switch for context). Toews response to the bill's critics, which include...well, just about everybody, has been to draw a Dubya-like line in the sand, declaring that you're either with us, or you're with the terror--er, I mean, kiddie porn makers. Apart from a dazzling logic failure that equates privacy with child pornography, undermining democratic principles in the name of justice is a no-win proposition. A decade after going down that road, our southern neighbour has taken this to an extreme (readers may recall Obama, in the name of the permawar on terror, “regretfully” signing into law what amounts to a U.S. declaration of hostilities against the entire human race). The vigorous commitment with which the Conservatives have pursued Lawful Access indicates the key role it plays in the Party's law-and-order agenda. This isn't the first time they have pushed for expanded surveillance laws. Similar legislation, introduced by minority governments in 2006 and 2008, died on the order table. During the 2011 election campaign, the party indicated its intention to ram Lawful Access through Parliament if re-elected with a majority. The provisions were originally expected to be buried in the recently passed -and equally draconian - omnibus crime bill (which several provinces have refused to pay for). In fact, to understand the impetus for Lawful Access legislation, we have to look abroad for context. Similar bills have been drafted, and sometimes passed, in the UK, France, Australia and the United States (to name a few places), as part of a broad push by state actors to legitimize ubiquitous telecommunications monitoring. Canada is already involved in data sharing agreements with other countries, most notably the UKUSA agreement, whose roots ultimately lie in the dark crypto-annals of WWII. UKUSA is a framework for pervasive monitoring and sharing of data among the signals intelligence agencies of the major English-speaking countries, and has been a reality for well over half a century. Together, these agencies operate a large network of monitoring stations that eavesdrop on global communications. The captured signals flow into the vast storage mediums at their respective headquarters, of which NSA's 'Crypto City' at Fort Meade is the largest (until, that is, the NSA finishes building the new $2 billion 'Utah Data Center' sometime in 2013). Although these agencies are technically not supposed to perform domestic surveillance, they often do – with the cooperation of telecommunciations providers. Accountability and transparency in this unholy alliance of corporation and law enforcement is virtually nonexistent. When AT&T was publicly busted by a former engineer for its complicity in the Bush administration's warrantless wiretapping scandal, the U.S. Congress simply granted retroactive immunity from prosecution to those involved in what was admittedly an illegal operation. Meanwhile, the infrastructure, and the practice, remain. C-30, and its ilk, should be understood as another step in the process of publicly justifying what's already happening. Toews has been having a pretty hard time of it since the announcement. From the vikileaks hilarity to a spate of condemnatory editorials in the press, he has come off looking like a fool while his party has been vilified both at home and internationally. The widely unpopular bill has been sent back to committee before going to a second reading, which won't occur until the fall sitting. This will not change the fact that C-30 is likely to eventually become law in some form, so long as the Conservative Party can whip its caucus properly. As the current government has amply demonstrated, it can and will ignore public opinion with impunity. This unilateralism extends readily to law enforcement. If there is one thing that must be glaringly obvious to those in the intelligence community by now, it is that they can operate with almost no public scrutiny or oversight-- laws or no laws. We don't have to look ahead to a time in which we have given up our civil liberties. We're already there.
----- Justin Saunders recently co-produced a short documentary on surveillance and lawful access legislation in Canada.