'Lawful Access' Rhetoric Rings Hollow When The Facts Are Wrong
from the muddled-analogies dept
Ever since our Public Safety Minister made the infamous claim that his opponents were standing "with the child pornographers", support for Canada's proposed "lawful access" legislation—which would force ISPs to turn customer information over to police without a warrant, and install network surveillance equipment—has been characterized by two things: sensationalism and a lack of clarity. This is hardly surprising in a debate that opened with accusations of supporting child porn (a seeming corollary of Godwin's Law) and nowhere is it better exemplified than Lorna Dueck's tragically confused column in Friday's Globe and Mail.
[Full disclosure: I work for one of the Globe's main competitors, but not in an editorial capacity.]
Dueck makes the bizarre claim that what should be a discussion about protecting children was "transformed" into a debate about privacy, as though there is no room to consider both. She then attempts to brush off all concerns about the bill, claiming it is akin to driving your car:
The car is your private property and you know how to use it, but some people keep making the road dangerous. You appreciate the radar gun or spot checks at the side of the road, and you take down a licence-plate number when a driver needs to be reported. It's a public service that keeps us safe. That's how police see access to your IP address – it will help them to identify lawbreakers.
The metaphor fits for why Bill C-30 is applauded by those on the front lines of child protection. Like using a radar gun, hackers employed by the police have developed software that catches images of child sexual exploitation. It's illegal images that are being tracked. Police will take that digital evidence to ask who's trading this, and that leads to an IP address – the licence plate of your car, if you will.
Unfortunately, Dueck has things backwards. C-30 is not about making IP addresses more accessible. Although the text of the bill does include them as one of the pieces of information that ISPs must hand over without a warrant, that is rarely, if ever, how online investigations proceed. Rather, police monitor networks to collect IP addresses that are exchanging child pornography, then investigate those addresses. In a way, IP addresses already do work like license plates (including the fact that they are not enough to positively identify an individual user/driver).
Currently, only a warrant can compel an ISP to hand over information, but they can also choose to cooperate with police. There are conflicting accounts as to how this plays out: supporters of the bill (including some police) claim that criminals are going uncaught thanks to the difficulty of obtaining warrants, while opponents, like Ontario's Privacy Commissioner, claim that ISPs already comply with the vast majority of warrantless requests when child pornography is involved. The truth is probably somewhere in the middle.
Bill C-30 would force ISPs to hand over customer information without the warrant. Amusingly, Dueck's car analogy could have been more appropriate if she used it correctly, since the police do not need a warrant to trace a license plate back to its owner. But even this misses the key point that vehicles are publicly licensed by the government, while ISPs are private companies offering a service to private citizens. It's well-established that there is no right to drive anonymously, but C-30 legislates the end of anonymity online, and sets a disturbing precedent against the right to privacy when using any form of communication. Should the police be able to obtain customer information from printing shops without a warrant, just because some people distribute obscene or libelous flyers? That is a far more analogous question, and one that underlines the fundamental concept of privacy that C-30 violates.
We all want to prevent the exploitation of children, but the proposed methods for doing so would have unintended consequences, and that conversation can't be hidden behind emotionally charged rhetoric. An urgent goal does not justify a reckless solution—nor a reckless column that confuses the facts. Dueck calls the conflict over C-30 a "sideshow" and hopes to "elevate the debate", but in fact all she has done is join one of the existing sides—those who let the emotional resonance of child pornography override their sobriety, and believe that laudable motives excuse them from examining their methods or even understanding the details of the problem.