Aug 23, 2005
Re: Canada's Big Brother Plan to Reshape the Internet
I think we should be clear that although terrorism is being touted as the reason for these new powers, the intent is to employ them much more broadly, to counteract organized crime generally. I don't think it's a losing proposition to be open about this - the people who support their use against terrorism are likely to support their use against drug smuggling and racketeering. And I think that there is a value in being open, as the significant concern is not the use of these powers against crime and terrorism but rather their use for political purposes or on people engaged in lawful activities. The covert actions of the RCMP during the FLQ crisis remain within living memory, and the excesses of McCarthyism a decade or so earlier also.
For this reason, as Michael Geist observes, the lack of judicial oversight is troubling. The judiciary has the responsibility not only of protecting society from certain of its citizens, but also of protecting citizens from certain sectors of society. In a rights-based democracy, independent defense of those rights is essential, as a separate and over-riding function, as otherwise the demands of politics and economy will accord them secondary importance. Our grasp on our rights is already tenuous, applicable only in the civil sphere, and abrogated on a day-to-day basis in the workplace and the domain of private enterprise. The arbitrary shut-down by Telus of its union website should be at least as troubling as the proposed legislation, and hence a combination of government surveillance with that very enterprise ought to be approached only with caution and oversight.
Moreover, the management of the surveillance system is a matter of concern. By requiring that ISPs collect and store information, the civil authorities would be off-loading a significant part of the workload to these ISPs. At a minimum, such requirements impose a certain overhead on them, requiring excess storage and retrieval capacity, the production of reports, the acquisition of surveillance technology, and more. But even were this workload compensated, it is arguable that it nonetheless remains in the wrong hands. It is not the business of the private sector to take part in the conduct of criminal investigations, and the private sector is governed by a set of rules and liabilities quite different from the civil sector. It is very likely that records thus stored would be more likely to be open to abuse and disclosure. Moreover, since all information - not merely that judicially warranted - is retained, the commercial value of disclosure is likely to exceed any penalties, making such abuse virtually certain. Finally, ISPs are not motivated by any sense of protecting the right, and therefore, are likely to take only the minimum care and attention required to data security.
I am not advocating a sort of information anarchy here. The chaos that can be caused on the network, for example by spammers and virus writers, and in society, by terrorists and organized crime, is sufficient to argue for some sort of constraint. Therefore I support a certain level of powers of surveillance and circumvention. But my warrant is based on the presumption that such powers constitute the exception, rather than the norm, and that interception and surveillance constitute unusual activities, and are not a default that applies to every communication. And such activities ought to be carried out only by civil authorities, answerable to the lawfully elected government, and at cost to that government, and that the primary objective of such activities ought to be the protection, and not the usurpation, of our rights and freedoms.
I think we should be clear that although terrorism is being touted as the reason for these new powers, the intent is to employ them much more broadly, to counteract organized crime generally. I don't think it's a losing proposition to be open about this - the people who support their use against terrorism are likely to support their use against drug smuggling and racketeering. And I think that there is a value in being open, as the significant concern is not the use of these powers against crime and terrorism but rather their use for political purposes or on people engaged in lawful activities. The covert actions of the RCMP during the FLQ crisis remain within living memory, and the excesses of McCarthyism a decade or so earlier also.
For this reason, as Michael Geist observes, the lack of judicial oversight is troubling. The judiciary has the responsibility not only of protecting society from certain of its citizens, but also of protecting citizens from certain sectors of society. In a rights-based democracy, independent defense of those rights is essential, as a separate and over-riding function, as otherwise the demands of politics and economy will accord them secondary importance. Our grasp on our rights is already tenuous, applicable only in the civil sphere, and abrogated on a day-to-day basis in the workplace and the domain of private enterprise. The arbitrary shut-down by Telus of its union website should be at least as troubling as the proposed legislation, and hence a combination of government surveillance with that very enterprise ought to be approached only with caution and oversight.
Moreover, the management of the surveillance system is a matter of concern. By requiring that ISPs collect and store information, the civil authorities would be off-loading a significant part of the workload to these ISPs. At a minimum, such requirements impose a certain overhead on them, requiring excess storage and retrieval capacity, the production of reports, the acquisition of surveillance technology, and more. But even were this workload compensated, it is arguable that it nonetheless remains in the wrong hands. It is not the business of the private sector to take part in the conduct of criminal investigations, and the private sector is governed by a set of rules and liabilities quite different from the civil sector. It is very likely that records thus stored would be more likely to be open to abuse and disclosure. Moreover, since all information - not merely that judicially warranted - is retained, the commercial value of disclosure is likely to exceed any penalties, making such abuse virtually certain. Finally, ISPs are not motivated by any sense of protecting the right, and therefore, are likely to take only the minimum care and attention required to data security.
I am not advocating a sort of information anarchy here. The chaos that can be caused on the network, for example by spammers and virus writers, and in society, by terrorists and organized crime, is sufficient to argue for some sort of constraint. Therefore I support a certain level of powers of surveillance and circumvention. But my warrant is based on the presumption that such powers constitute the exception, rather than the norm, and that interception and surveillance constitute unusual activities, and are not a default that applies to every communication. And such activities ought to be carried out only by civil authorities, answerable to the lawfully elected government, and at cost to that government, and that the primary objective of such activities ought to be the protection, and not the usurpation, of our rights and freedoms.
