A federal bill that aims to protect children from Internet predators has reignited a debate of public safety versus a citizen’s rights and freedoms.
The Canadian Charter of Rights and Freedoms states everyone has the right to be secure against unreasonable search or seizure. But some defence attorneys worry that very civil liberty could be in jeopardy if the lawful access legislation – Bill C-30, proposed by the federal government last month by Public Safety Minister Vic Toews – becomes law.
The bill, called the Protecting Children from Internet Predators Act, would allow police to gain subscriber information, including names, addresses, telephone numbers and IP addresses, from Internet service providers without a warrant.
“Everybody in Canada has a constitutional guarantee to be free from unreasonable search,” says local criminal defense lawyer Neil McCartney.
“If the police kick in your door without a search warrant and dig around then they’ve infringed on that civil liberty. I think the same goes, for example, your Internet subscriber information.”
While police can argue their reasons for why they deemed a warrant to be unnecessary, a court will approach it assuming it infringed on the civil liberty.
The onus is on the Crown to prove it didn’t.
McCartney says any time the issue of police opening up private information without a warrant comes up, there is a concern about civil liberties because of the principal in the law that says unreasonable search equals search without a warrant.
“If there is a warrant requirement taken off the table, we should be taking a close look at whether that’s OK.”
A warrant is a guarantee that power won’t be abused, that police won’t be lightly poking into people’s private information, McCartney adds.
Bill C-30 aims to fight cyber crime, particularly to aid police in tracking online child pornography.
Shortly after introducing the proposed legislation, Toews said anyone opposed to the bill stood with the child pornographers.
The Lawful Access bill has been met with its fair share of criticism. Toews has been the target of much of the backlash, including a Twitter account under the name @Vikileaks30 that displayed details of the minister’s divorce file.
While McCartney doesn’t agree with the Vikileaks idea, he said it highlighted the fact there are things people wish to keep private other than child pornography and other crimes.
“Maybe your spouse beats you up. Maybe you’re gay and you haven’t told anybody yet. Maybe you suffered some kind of abuse and you haven’t told anyone about it. I think there are people talking about that online and getting support online but they’re doing it on an anonymous basis,” he says.
“There is the concern that if their identities as the source of those communications were available just on request to the Internet service provider, people may not be able to engage in that kind of thing as freely anymore.”
Lakehead University’s Gary Genosko, a Canada Research Chair in techno-culture, says the Lawful Access bill is essentially a snooping bill that promotes an intrusive form of government.
The bill states that any police officer can orally request subscriber information under exceptional circumstances, which can be anything.
“What the concern is that police organizations will go on fishing expeditions for information because it will be so easy to get that information that they’ll just use it constantly for unjustified reasons,” he says.
“There doesn’t seem to be any control over that.”
Bill C-30 does call for an audit or record of all information requests, which could show if there were any abuses of the system. However, Genosko says it would probably take a freedom of information request to obtain that information.
He also finds it puzzling the government feels there is a need for the Lawful Access bill when the country already has the Personal Information Protection and Electronic Documents Act that requires any business in Canada to give up personal information of customers if a legitimate authority asks for it.
“We already have that provision, so it’s really not clear why C-30 is necessary,” he says.
But MP Greg Rickford (Con., Kenora) says the predator act is in response to concerns from across the country, particularly from police departments, about protecting children against online child exploitation and other kinds of online criminal activity.
“There is no question I stand firmly by the principle that this has to be looked at and we have to be able to create some protection for children with respect to online sexual predators,” says the Kenora Riding MP, adding the government has come to understand that in the today’s society, much of the pedophilia activity starts on the Internet.
However, the bill has been sent to committee for full examination and potential amendments to “achieve the best possible results in terms of balancing the public safety interest of protecting children online and of course the implications for privacy in terms of Internet use,” Rickford says.
The lawful access legislation also does not allow the police to monitor emails, phone calls or Internet surfing without a warrant.
There still remains the issue of tracking IP addresses and that’s why the bill is back in committee, said Rickford.
“We’re looking at the options available to us. This is not unlike someone’s license plate on a car and so we have to identify the most responsible way to proceed with this,” he said. “We have all the confidence in the world that the committee will take a look at this and we’re certainly open to input from different stakeholders and obviously the opposition and we’ll go from there.”
Opposition MP John Rafferty (NDP, Thunder Bay-Rainy River) says the bill needs to be reworked so that it makes sense.
The Internet is a changing place and there are many issues to deal with, but it has to be done with proper consultation.
“It needs a major reworking,” Rafferty says, citing the bill needs more safeguards to protect people’s privacy rights.
“I don’t think people mind if police forces are looking for bad guys, but I don’t think you should open up everything without any sort of controls on police or on government,” he says.
“If police are interested in someone because they think they are a child pornographer, this isn’t a spur of the moment thing,” Rafferty added. “They’ve probably been following this person for a week or two weeks. Surely that’s enough time to convince a judge that they should have permission to do this.”
It’s an intrusive bill and is an issue Canadians should be concerned about, Rafferty adds.
