Advocacy Group Says Canadian ISPs Should Be Required To Hand Over Subscriber Data Without A Warrant

from the unintended-consequences,-anyone? dept

Rob Hyndman points us to the news that a Canadian "victims advocacy group" called Victims of Crime has put out a report on how the government should deal with "internet-facilitated child sexual abuse." You should recognize that the recommendations are ridiculous by the way they describe the problem: "internet-facilitated child sexual abuse." Notice that they're including the internet as a part of the problem, rather than just a tool that's being used. The report starts off by making a bad assumption: that the internet is responsible for an increase in child sexual abuse by stating: "internet-facilitated child sexual abuse is growing at an alarming rate. Between 1998 and 2003, the number of charges for production or distribution of child pornography increased by 900 percent...." Now, that could mean that there has been an increase... or it could mean that more resources have been put towards lawsuits or (perhaps) that the internet has enabled law enforcement to collect more evidence to bring charges. In other words, you could easily interpret that evidence to mean that the internet has been an amazing help in bringing justice to those involved in such evil acts.

But where the report gets really troubling is the suggestions on what the government should do:
  • introducing legislation to make it mandatory for Internet service providers to give law enforcement basic customer name and address information upon request;
  • requiring internet service providers to keep data and internet surfing records for longer periods to ensure that evidence is not destroyed; and
  • making it a criminal offence to refuse to give law enforcement a password or encryption information during an investigation.
In other words, throw all privacy rights out the window, don't require any evidence of wrongdoing or a court warrant and massively increase the costs for ISPs. And do they not think such laws would be abused? If police can simply request detailed information with no oversight, how quickly will it be abused to seek out anonymous detractors? Law enforcement and politicians have tried to seek out anonymous commenters many times, but usually a court is there to try to protect the right to anonymity and privacy. Yes, it's no doubt that child sexual abuse is a horrific crime and we're all for law enforcement doing whatever they can to crack down on it. But throwing out all privacy rights or due process is likely to have many, many, many negative unintended consequences.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    :Lobo Santo (profile), Jun 4th, 2009 @ 1:59pm

    ...Facilitated...

    Hey, "motor-vehicle-facilitated child sexual abuse" or maybe "video-camera-facilitated child sexual abuse" deserve just as much recognition!

    They should put a GPS in every vehicle, and have the reports immediately available to the police, plus, they should have every video ever recorded with a camera backed up in the camera for police use later. And don't get me started about "vision-facilitated child sexual abuse" because they'd need to start poking out eyes (for the children, of course), too!!

    /sarcasm

     

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  2.  
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    Glaze, Jun 4th, 2009 @ 2:44pm

    This is like saying "Guns don't kill people, people kill people..." only twisted. the internet just doesn't post content itself... well i guess with the exception of bots... people post it.

     

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  3.  
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    Him ThatIs, Jun 4th, 2009 @ 2:45pm

    1989: Ice-T releases "The Iceberg/Freedom of Speech... Just Watch What You Say ". The intro "Shut Up, Be Happy" consists of a spoken word performance by Jello Biafra. This comes to mind whenever I read something like this.

     

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  4.  
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    Anonymous Coward, Jun 4th, 2009 @ 2:48pm

    Mike, lesson 1: Privacy rights outside the US are not based on or subject to US laws. It applies to all laws, court rulings, and all those other things that happen in the US - they apply to the US.

    So now, let's rip apart your concerns.

    "introducing legislation to make it mandatory for Internet service providers to give law enforcement basic customer name and address information upon request; "

    Is there any reason an ISP shouldn't do this? The phone company will do it on normal basis. Heck, I worked for a car rental agency, and we would gladly provide the police information on who the renter was on a given date. In fact, it was disclosed in the T&C of the rental contract that this could happen. Why should this be any different?

    "requiring internet service providers to keep data and internet surfing records for longer periods to ensure that evidence is not destroyed; and"

    This one is probably what has you the most concerned. ISPs only tend to monitor your logon and logoff times (for purposes of billing, etc), bandwidth usage, and such. I think that all this is attempting to do is to make sure that they retain these records long enough so that evidence isn't lost (after all, if you want to know who was on a given IP address last week, it is sort of hard if the records weren't retained)

    "making it a criminal offence to refuse to give law enforcement a password or encryption information during an investigation. "

    See the first point - why wouldn't you do this? Obviously the refusal to provide a password or encryption code would be enough to raise probably cause, they are just asking to make this ALSO an offence, not just an obstruction.

    You also didn't quote the good stuff:


    " * increase the capacity of the RCMP's National Child Exploitation Coordination Centre to identify and rescue the child victims in the images;
    * support research into the impact of internet-facilitated child sexual abuse on children; and
    * more effectively help victimized children through special child-friendly multi-disciplinary child advocacy centres. "

    But hey, knock yourself out. I guess only if the internet is entirely absolutely and utterly without records can your "free" universe truly work out.

     

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  5.  
    identicon
    Anonymous Coward, Jun 4th, 2009 @ 2:54pm

    1984 was not an instruction manual.

     

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  6.  
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    Anonymous Coward, Jun 4th, 2009 @ 3:43pm

    "Between 1998 and 2003, the number of charges for production or distribution of child pornography increased by 900 percent...."

    I suspect that number isn't far off, but it's only meaningful when compared with legal pornography. The internet has been a boon to pornography in general.

    And even then, you still have to account for the increased availability of evidence to prosecutors as well.

     

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  7.  
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    Esahc (profile), Jun 4th, 2009 @ 3:45pm

    Apparently, some people think it was.

     

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  8.  
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    Xanthir, FCD (profile), Jun 4th, 2009 @ 3:53pm

    Re:

    "introducing legislation to make it mandatory for Internet service providers to give law enforcement basic customer name and address information upon request; "

    Is there any reason an ISP shouldn't do this? The phone company will do it on normal basis. Heck, I worked for a car rental agency, and we would gladly provide the police information on who the renter was on a given date. In fact, it was disclosed in the T&C of the rental contract that this could happen. Why should this be any different?

    Well, for one, warrants are pretty standard and not difficult to obtain. This would make it so that ISPs must hand over information *without* a warrant. Seriously, it's *not* hard to go get a judge to sign up a warrant for something, and doing so ensures that there's at least a modicum of sensibility and transparency in the request.

    For two, your internet records can be considerably more damning than the fact that you rented a car (and presumably mileage information, etc.). Even if you're completely innocent of a crime, your personal, private browsing can be used against you in dishonest ways. It's astonishingly easy to make even mundane activities sound threatening if you don't have a conscience.

    "requiring internet service providers to keep data and internet surfing records for longer periods to ensure that evidence is not destroyed; and"

    This one is probably what has you the most concerned. ISPs only tend to monitor your logon and logoff times (for purposes of billing, etc), bandwidth usage, and such. I think that all this is attempting to do is to make sure that they retain these records long enough so that evidence isn't lost (after all, if you want to know who was on a given IP address last week, it is sort of hard if the records weren't retained)

    Indeed. It's attempting to force ISPs to keep large quantities of data in storage for extended periods of time. This can be a considerable expense, and carries with it a *gigantic* risk of data breaches exposing confidential information to non-law enforcement.

    In addition, time and time again we've seen that (1) increasing the *amount* of data doesn't always increase the *usefulness* of the data (too much, and it actually hampers legitimate investigation), and (2) given large databases of personal information, abuse almost inevitably occurs. Mike gives examples of what can happen, and all of these are well-attested in actual events.

    "making it a criminal offence to refuse to give law enforcement a password or encryption information during an investigation. "

    See the first point - why wouldn't you do this? Obviously the refusal to provide a password or encryption code would be enough to raise probably cause, they are just asking to make this ALSO an offence, not just an obstruction.

    There is this thing. It is called the Fifth Amendment. Obviously that has no effect in Canada, but as we Americans obviously value it, we should decry laws in other countries that would violate it, were it in effect there.

    Making the refusal to provide a password a crime means that exercising one's American Constitutional rights is a crime. It also plays into the whole "just get a damned warrant" issue. If *any* demand by law enforcement for passwords must be obeyed under threat of punishment, then these demands *will* be abused. It is a fact of life.


    Also, seriously dude, quit hiding behind anonymity. I display a false name, but my actual personal details can be readily divined with a few minutes on a search engine. More importantly, though, I have a consistent identity across this site that one can learn about. As it stands, you're indistinguishable from every other AC. To use the rhetoric that people who make the arguments you do use, if you're not doing anything wrong, then what have you got to hide?

     

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  9.  
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    Beefcake, Jun 4th, 2009 @ 4:02pm

    Re: Re:

    Well responded, Xanthir.

     

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  10.  
    identicon
    Anonymous Coward, Jun 4th, 2009 @ 4:12pm

    Re: Re:

    Great answers, but:

    "Well, for one, warrants are pretty standard and not difficult to obtain. This would make it so that ISPs must hand over information *without* a warrant."

    No, it means that ISPs would be required to hand over this information to law enforcement, in the same manner that the phone company will tell police who is at a phone number (unlisted or not) without a warrant.

    "It's attempting to force ISPs to keep large quantities of data in storage for extended periods of time. This can be a considerable expense, and carries with it a *gigantic* risk of data breaches exposing confidential information to non-law enforcement."

    Umm, for purposes of billing and such, the ISPs have to keep data long enough to prove a customer's bill. This isn't recording your every keystroke and every page visited. Technically speaking, the ISP should have to retain this information at least 6 years to match record retention (it is backup to customer billing).

    "There is this thing. It is called the Fifth Amendment."

    You guys also have thing called a second amendment that allows any yahoo with half a brain and an inchy trigger finger to buy an arsenal of weapons. Your constitution isn't really that impressive at times.

    "Making the refusal to provide a password a crime means that exercising one's American Constitutional rights is a crime. It also plays into the whole "just get a damned warrant" issue"

    For your consideration. In the US, you are driving your car. You are stopped by a police officer for running a red light. When he comes to get your license and reg to check things out, he asks you in passing if it is okay that he searches your car. You get huffy and tell him to get a warrant. By being hinkey about it, you may have just created the probable cause.

    You need to consider to that if an officer is looking at an encoded file on your PC, I would have to say that they likely already got a warrant to look at your system.

    Put that in your 5th Amendment and smoke it.

    As for my name, who cares? Discuss ideas, not people.

     

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  11.  
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    Chris In Utah, Jun 4th, 2009 @ 6:12pm

    Funny.

    Occurs to me all this has to do with the 4th amendment not the 5th.

    We give the our right of privacy to the courts to determine probable cause.

    Exclusionary rule

    One way courts enforce the Fourth Amendment is with the exclusionary rule. The rule provides that evidence obtained through a violation of the Fourth Amendment is generally not admissible by the prosecution during the defendant's criminal trial.

    Though this seems like a expansion of government into your lives since:
    The Leon case applies only to search warrants. It remains unclear whether the "good faith" exception applies to warrantless seizures in other contexts. However, the Supreme Court held in Arizona v. Evans, 514 U.S. 1 (1995) and Herring v. United States (2009), that the exclusionary rule does not apply to evidence found due to negligence regarding a government database, as long as the arresting police officer relied on that database in "good faith".

    The Leon case applies only to search warrants. It remains unclear whether the "good faith" exception applies to warrantless seizures in other contexts. However, the Supreme Court held in Arizona v. Evans, 514 U.S. 1 (1995) and Herring v. United States (2009), that the exclusionary rule does not apply to evidence found due to negligence regarding a government database, as long as the arresting police officer relied on that database in "good faith".

    Though all this is determined by a jury of your peers apparently. And if your privacy is not important to you go find a socialist state.
    The landmark case Katz v. United States 389 U.S. 347 (1967) nonetheless established a two-part test for what constitutes a search within the meaning of the Fourth Amendment. The relevant criteria are "first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable." Under this “new” analysis of the Fourth Amendment, privacy expectations deemed unreasonable by society cannot be validated by any steps taken by the defendant to shield the area from view.
    Though my ISP is defiantly not my employer if you wanted to use United States v. Ziegler argument.

    Your looking to piss people off that your "nothing to hide" mentality.
    Personal story: When DCFS or CPS comes knocking on your door every other month, takes pictures of your house then talk to me about feeling violated.

    Question for since our gov is looking for complete transparency between your ISP & Gov Database where do we draw the line on socialism?

     

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  12.  
    identicon
    Anonymous Coward, Jun 4th, 2009 @ 6:24pm

    Re: Funny.

    When the 4th amendment applies in Canada, give me a call so I can re-read your post.

    otherwise, learn Canadian law and try again!

     

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  13.  
    identicon
    BillH, Jun 4th, 2009 @ 7:06pm

    Since AC has an obvious interest in spinning & obscuring Canadian privacy rights to benefit his own POV, here is a link that may shine some light on how others in Canada see the situation & is probably a good starting point on getting a broader view of privacy & the law in Canada.

    As for AC's "Discuss ideas, not people" comment, it's a bit disingenuous to tell us we shouldn't worry about a loss of privacy while hiding behind the AC moniker. Even tho you're huff'n & puff'n about the US Constitution, you belong down here. There's a big constituency here that you'd fit right into that would love to dump any privacy rights that admendments, legislation & court rulings have provided over time. You sound like a real Scalia man. It won't be socialism (even the mild Canadian kind) that that kills privacy; conservatives over the past 30 years have been working real hard on doing it all by themselves.

     

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  14.  
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    Mechwarrior, Jun 4th, 2009 @ 7:14pm

    Ahem, warrantless wiretaps? I mean, this is one step from it.

     

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  15.  
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    BillH, Jun 4th, 2009 @ 7:29pm

    Sorry -- here's the link I forgot to post re privacy in Canada: http://www.michaelgeist.ca/content/view/3757/135/

     

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  16.  
    identicon
    Dan, Jun 4th, 2009 @ 8:15pm

    By this logic we certainly must also ban electricity and water utilities, also roads and shoes. After all without shoes the abusers would have a much harder time finding and reaching children. Damn them shoes anyway.

     

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  17.  
    identicon
    Anonymous Coward, Jun 4th, 2009 @ 9:10pm

    Re:

    There is no spin. Canadian privacy laws are not at all like American laws, we don't deal in bizarre absolutes based on court rulings on a poorly written document called the US constitution.

    As noted in the Geist article you linked, most of the major ISPs in Canada already have disclosure notices in their user agreements. It is also true that few Canadians have much sympathy for child molesters trying to hide behind privacy blinds. We aren't quite so comfortable with people getting off on technicalities.

    As for the rest, well, whatever. The ideas are important, the names mean nothing. It isn't a question of "hiding", I just don't give a crap if you know who I am or not, it adds nothing to the discussion. If that is the best argument you have against my ideas, then I have to say that you must pretty much agree with me otherwise.

     

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  18.  
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    iyogi (profile), Jun 4th, 2009 @ 10:21pm

    RE:

    Throw all privacy rights out the window, don't require any evidence of wrongdoing or a court warrant and massively increase the costs for ISPs. And do they not think such laws would be abused?

     

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  19.  
    identicon
    Victor, Jun 5th, 2009 @ 3:36am

    Re: Re: Re:

    In Canada, refusing a search cannot be a basis for probable cause, that search will not be admissable in court.

     

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  20.  
    identicon
    Anonymous Coward, Jun 5th, 2009 @ 5:03am

    Note also: This is an advocacy group pushing for this, not the goverment lining up to pass it.

    Imagine it like a car designed by Ralph Nader. Ugly!

     

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  21.  
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    btr1701 (profile), Jun 5th, 2009 @ 8:33am

    Re: Searches

    > "making it a criminal offence to refuse to
    > give law enforcement a password or encryption
    > information during an investigation. "

    > Why wouldn't you do this?

    Oh, I don't know... maybe because I'm innocent until proven guilty and don't necessarily want strangers poking around in my private life?

    When the cops come knocking at my door, I don't have to let them search my house just because they ask. Why should I have to give them the keys to my laptop merely because they ask?

    And as a practical matter, they can't put you in prison for forgetting your password...

     

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  22.  
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    btr1701 (profile), Jun 5th, 2009 @ 8:47am

    Re: Re: Re:

    > it means that ISPs would be required to hand
    > over this information to law enforcement, in
    > the same manner that the phone company will
    > tell police who is at a phone number
    > (unlisted or not) without a warrant.

    Well, I don't know how it works in Canada, but I'm a law enforcement officer in the USA and if I want subscription information from a phone company, I *do* have to get at least a subpoena, if not a warrant.

    > Your constitution isn't really that impressive at times.

    More impressive than a country which tells its citizens they have to rely on the government for protection when they're in fear for their lives.

    > You get huffy and tell him to get a warrant. By
    > being hinkey about it, you may have just
    > created the probable cause.

    That's absolutely false. Merely asserting your 4th Amendment rights has *never* been held to give rise to probable cause sufficient to sustain a warrant. The Supreme Court decided that long ago and has only strengthened that protection over the years. The warrant requirement is meaningless if refusing a search gives rise to probable cause to get a warrant.

    Likewise, refusal to provide a computer password would never pass constitutional muster as the basis for a probable cause warrant. Any cop who tried to make that case would be laughed out of court and if, by some random chance, the cop convinced the judge to issue a warrant on such patent false reasoning, the warrant and any fruits of the subsequent search based on the warrant would be thrown out on appeal.

    > Put that in your 5th Amendment and smoke it.

    Search and seizure is actually covered by the 4th Amendment. Your condescending attitude might be a little more effective if you bothered to get stuff like that right.

    As for passwords, the federal courts in America have held that a person can't be compelled to provide them to law enforcement, even with a warrant, because doing so violates a person's right to be free from self-incrimination.

    So put that up your maple leaf and smoke it.

     

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  23.  
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    nasch (profile), Jun 5th, 2009 @ 9:42am

    Re: Funny.

    And if your privacy is not important to you go find a socialist state.

    Question for since our gov is looking for complete transparency between your ISP & Gov Database where do we draw the line on socialism?

    What does socialism have to do with privacy rights?

     

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  24.  
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    Tgeigs (profile), Jun 5th, 2009 @ 11:06am

    Re: Re:

    "There is no spin. Canadian privacy laws are not at all like American laws, we don't deal in bizarre absolutes based on court rulings on a poorly written document called the US constitution."

    Right. I don't know Canadian law, so I can't speak on its merit, but I've never actually heard anyone refer to the US Constitution as a poorly writtern document. It's malleability and the ease with which it remains relevant as we move forward has been revered by even detractors of our country. In other words, you're an absolute retard.

    "It is also true that few Canadians have much sympathy for child molesters trying to hide behind privacy blinds. We aren't quite so comfortable with people getting off on technicalities."

    First, it sounds like you think we have sympathy for child molestors, which would be more idiocy. And BTW, we aren't comfortably with people getting off on technicalities either, we simply would rather let a few guilty go free rather than fall under the thumb of a rampant government that's out of control. If you know anything about the formation of America you already know where that distrust of government comes from.

     

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  25.  
    identicon
    Donkey Punch, Jun 6th, 2009 @ 5:14pm

    An excuse for police state

    They always use "protect the children" as the excuse to erode civil liberties and increase police powers.

    Welcome to 1984.

     

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