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In the spring, the Government of Canada introduced two pieces of legislation that would greatly expand the power of the state to monitor its citizens online activity. The legislation, known as the Investigative Powers for the 21st Century (IP21C) Act, would force Internet Service Providers (ISPs) to install costly surveillance systems on their networks and give police wide ranging new powers that do away with judicial oversight.
According to University of Ottawa law professor Michael Geist, the legislation would create additional requirements for ISPs and expand police powers. These ISP requirements can be broken down into two components. First, ISPs will be required to install costly surveillance equipment on their networks. Part of the cost will fall to taxpayers while the remainder will be carried by the companies themselves. Some smaller ISPs will be exempt from this requirement for a period of three years, creating an unfair burden on the larger, more successful companies. Second, the legislation would require that all ISPs give personal information to the government, including the names of their customers, as well as their IP, e-mail, and mailing addresses—on demand and without any judicial oversight.
Police will also gain expanded powers under this legislation. First, they will be able to obtain information about Internet-based messaging, including tracking what sites people are visiting and who they are communicating with. This information will be subject to a judicial order. Second, police will be able to order ISPs to preserve data on their customers. Third, police will be able to obtain a warrant to remotely activate tracking devices in technologies such as cellular telephones. Fourth, the legislation also deals with computer viruses and makes it easier for the government to coordinate its efforts with international governments.
There are numerous problems with the proposed legislation that should be alarming to freedom loving Canadians. It forces private business to not only be complicit in the government's attempt to spy on its citizens, it also forces them to shoulder much of the financial responsibility for the new policy. As such, some ISPs may be forced out of business. In addition, the legislation gives law enforcement officials unprecedented access to private communications and forces ISPs to preserve private data and disclose subscribers identities. "This is now a formal way in which the government will determine who you're in contact with, how often and for what purpose. If identified that someone or some area you're in contact with as being a danger, you're then connected to that," said UBC professor and civil libertarian Richard Rosenberg in an interview with Vancouver's News1130. Moreover, the legislation does away with the principles of judicial review, probable cause, and our constitutional right "to be secure against unreasonable search or seizure."
Currently, police can obtain subscriber information by getting a warrant from the courts. Under the new law, however, police would no longer require the permission of a judge to obtain such information. This represents a reversal of the pledge by Stockwell Day, the government's previous Public Safety Minister, that the government would not seek "extra powers to police to pursue items without a warrant."
It is bad enough that the government will expand its powers of surveillance. What's worse is that it will circumvent the courts, the one institution with the power to place limits on the state's ability to use its agents as tools of coercion, oppression, and censorship. With parliament out of session, however, Canadians will have the summer to debate these issues.
One of the arguments we will undoubtedly hear is something to the effect of, "I don't do anything illegal on the Internet, so I have nothing to worry about." I reject this argument wholeheartedly. If this legislation is passed, the slow degradation of our rights to privacy and freedom of speech will be sped up considerably. The right to free speech and free expression is essential to democratic governance, since democracy is based on the idea that government is ultimately controlled by the people. In this regard, it is important that there is a free flow of ideas within society—no matter how controversial those ideas are—so that the people have the necessary information to make informed decisions. It is also important that people be allowed to speak out against their government in order to prevent tyranny and ensure that the state is making decisions that are in society's best interests.
There are already many legal restrictions on speech, such as laws against sedition, defamation, and hate speech. Moreover, we have seen governments across the country use Human Rights Commissions to impede freedom of speech and freedom of the press. Bureaucrats from the Canadian Human Rights Commission have even been known to pose as neo-Nazis on the Internet in order to nab people for hate speech. The commission has also gone after mainstream magazine and newspaper columnists, including former Western Standard publisher Ezra Levant (more information on how Human Rights Commissions trample on free speech can be found in Levant's new book Shakedown: How Our Government is Undermining Democracy in the Name of Human Rights).
It is essential that people have the ability to publish their opinions and ideas anonymously to prevent government censorship and allow a free flow of information in the marketplace of ideas. The proposed legislation would make it easier for the government to monitor online communication and obtain the identities of those who wish to express themselves on the Internet. With the amount of information people send over the Internet increasing all the time, this issue becomes even more important. Anyone who thinks they have nothing to lose by giving big brother the right to watch them at all times is sorely mistaken. This is not 2009 folks, it's New Year's Eve, 1984.
So what can be done to prevent the state from using this Soviet-style legislation to watch our every move? The legislation will not be passed before the fall, so Canadians have all summer to lobby their MPs. The best-case scenario is that these bills never see the light of day. There are also a number of steps that can be taken in order to prevent government spying and censorship on the Internet, which I explore in my column entitled How to thwart government surveillance and censorship online.