Privacy advocates concerned about potential internet wiretapping law

Reports that the Conservative government is working on legislation that would grant law enforcement officials the ability to access information from internet service providers has privacy advocates concerned about how such a law might erode the rights of Canadians.

Public Safety Minister Peter Van Loan outlined the need to update the wiretapping laws on Wednesday before the House of Commons' Public Safety and National Security Committee, according to transcripts of the session.

Public Safety Canada could not be reached for comment.

The move would be yet another attempt to modernize Canada's wiretapping laws through legislation. Law enforcement officials have long argued the laws need to be updated to enable them to effectively fight criminals, who they say have increasingly shifted their communications from phones to online.

In 2005, the Liberal government at the time introduced similar legislation, but the bill died when the Liberals lost the subsequent election. Liberal MP Marlene Jennings also reintroduced a private member's bill last Wednesday that also called for broadening the reach of law enforcement officials.

People's rights a concern

Though the exact nature of the Conservative legislation isn't known, it is expected to require law enforcement officials to obtain a warrant before they can force internet service providers to give customer information. In 2007, former public safety minister Stockwell Day made a promise to include that requirement.

Privacy commissioner Jennifer Stoddart, speaking at a press conference Thursday in Ottawa, said she is most concerned that any such legislation might encroach on people's rights.

"To erode this is a very serious step forward toward mass surveillance," she said.

Stoddart said she's seen "no compelling argument" that such legislation is necessary. She acknowledged that police forces are faced with a technical challenge and need access to some electronic communication, but wants to see whether this is "the only way that this could be done."

The Personal Information Protection and Electronic Documents Act, or PIPEDA, already allows for internet service providers and other private companies to disclose personal information to law enforcement officials to comply with subpoenas or warrants, or in emergency situations where an individual's life, health or security is potentially threatened.

Canadian Internet Policy and Public Interest Clinic privacy lawyer  Kris Klein said the reason privacy advocates have resisted this kind of legislation in the past is that wiretapping electronic communications is fundamentally different from traditional phone taps.

With a phone wiretap, police would obtain a warrant from a judge giving them the right to listen in on conversations after the warrant is issued, and they needed to be listening to the communication while it was happening.

Powers would broaden

With the kind of electronic wiretap law enforcement officials are seeking, those powers would broaden, said Klein, since law enforcement officials could require internet service providers to provide access to months of older communications.

"This is going to recruit the private sector, whether it's Bell, Rogers or whoever, to become agents of the state," Klein told CBC News.

"They will be recording all the conversations people are having by email, text message or whatever and storing it so that when the police do come with the warrant, the police can retroactively look back at what people are saying," he said.

"I think that's a huge move towards the totalitarian state where everybody is eavesdropping on one another and handing over information to the police," he said.

Bell Canada spokeswoman Jacqueline Michelis said the company had some concerns about the costs that would be incurred for ISPs to comply with the legislation being discussed, as well as concerns about protecting customers' privacy.

Klein said one way to mitigate these concerns would be to only allow law enforcement officials to access electronic information from the time a warrant is issued, as with phone surveillance.