OTTAWA — The Conservative government isn't backing down from a plan to require telecommunications companies to hand over customer information to police without a court order despite strong objections from Canada's privacy watchdogs, Postmedia News has learned.
The so-called "lawful access" legislation, to be tabled in the House of Commons on Tuesday, means Internet service providers and cellphone companies won't be able to say no to law enforcement if they ask them to cough up the basic subscriber information of any of their customers.
This provision, contained in a previous bill that died when the federal election was called last year, resulted in a sustained campaign by the federal and provincial commissioners to get "warrantless access" to subscriber info scrapped from the bill before the Conservatives re-introduced it.
In addition to a name, address, phone number and email address, companies would also be required to hand over the Internet protocol address and a series of device identification numbers, allowing police to build a detailed profile on a person using their digital footprint and to facilitate the tracking of a person's movement through the location of their cellphone.
The bill, dubbed "online spying" by critics, is also expected to require ISPs and cellular phone companies to install equipment for real-time surveillance and create new police powers designed to obtain access to the surveillance data.
Some smaller changes are expected in the bill that could affect the oversight model and internal controls, but Public Safety Minister Vic Toews has stood firm on the broad strokes, saying new measures are needed to catch criminals in the 21st century, singling out child pornography cases.
Canada's privacy commissioners banded together last year to write an open letter to Toews, saying police shouldn't have unrestricted access to basic subscriber information held by telecommunications companies. This, along with other new powers, adds "significant new capabilities for investigators to track and search and seize digital information about individuals."
Jennifer Stoddart, Canada's privacy commissioner, and Ann Cavoukian, Ontario's privacy commissioner, followed up with two separate public pleadings last fall, reiterating their concerns.
At a minimum, the "untenable" proposal for warrantless access to subscriber information "should be withdrawn," Cavoukian argued.
Newly released information, released to Postmedia News under the access to information law, shows department officials said such a request was "not tenable."
That's because it "could limit the ability of police to access basic subscriber information in non-emergencies" and warrants are "generally granted for criminal investigations. Requiring a warrant would be problematic when police undertake non-criminal, general policing duties, such as contacting next-of-kin after a traffic accident or returning stolen property," the records state.
But senior departmental officials also criticized Toews, who previously served as attorney general of Canada and Manitoba, for failing to state in his public response to Cavoukian that there are provisions of the Criminal Code that allow police to read emails without a warrant in special cases.
In a letter to the editor, he wrote in part: "Let me be clear. No legislation proposed in the past, present or future by a Conservative government will create powers for police to read emails without a warrant."
"This is problematic because Section 184.4 of the Criminal Code currently provides for that," the director of national security technologies at Public Safety wrote to colleagues after reading the letter.
In addition, a previous bill introduced by the Conservatives enhanced the safeguards associated with that section, "without moving away from the authority to intercept in exceptional circumstances without judicial authorization. Therefore, given the government was amending the provision to add safeguards to it, it can be inferred that the government supports 'warrantless interceptions.' "
A few days earlier, the director general of national security operations at Public Safety flagged the same problem when parliamentary secretary Candace Hoeppner used the identical line in response to a question from the NDP during question period.
University of Ottawa law professor Michael Geist, who reviewed the records, said the government appears to want to have it both ways.
While Toews publicly says the bill is designed to go after users of child pornography, internal records refer to other issues, says Geist.
"You just can't be serious. On one hand, we'd got Vic Toews screaming about child pornography cases and on the other hand, it's pretty clear that one of their main justifications is that this has to do with non-emergency situations that aren't even criminal situations. To say that you're going to drop key privacy protections because you want to return a kid's bike is just absurd," Geist said.
The records also show that one of the cases flagged by the RCMP to help Public Safety build its case in favour of the bill, known as Operation Carole, involved images that did not meet the Criminal Code definition of child pornography. As a result, "production orders or search warrants could not be obtained," the RCMP summary states.
"The point here is that you're not supposed to get a warrant and access this information for content that isn't even illegal. What they're saying is, this is content that wasn't illegal and so that was why they couldn't get a warrant, so now they need to change the law on the mandatory basis to get that same information? That just invites fishing expeditions and other forays into personal information without proper justification," said Geist.
The records also said that to require the police to obtain a warrant to access basic subscriber information "would literally collapse an already over-burdened judicial system."
Information provided by the RCMP at the department's request shows about 94 per cent of requests for basic subscriber information is provided voluntarily by ISPs. The telecoms refuse in six per cent of the cases, RCMP statistics provided to the department state.
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