The Legal Front
Security vs Privacy
BY BARBARA McISAAC
© 2012 FrontLine Security (Vol 7, No 2)

“He can either stand with us or with the Child Pornographers.” With those words, in response to a question from Liberal MP Francis Scarpaleggia, Public Safety Minister, Vic Toews may have put an end to Bill C-30, The Investigating and Preventing Criminal ­Electronic Communications Act. The short title of the bill, which no doubt gave rise to Toews comments, is the Protecting Children from Internet Predators Act. Also known as Lawful Access legislation (dubbed by some wags as “Awful” Access Legislation), the bill was intended to enhance the ability of law enforcement agencies to conduct electronic surveillance – much of which no doubt is linked to investigation of child pornography activities – by requiring telecommunications service providers to implement and maintain systems and methods to monitor and intercept communications as well as allow them to respond more quickly to requests from law enforcement agencies for basic subscriber information.

Many believe that the Bill is now dead, such was the outrage over Toews’ comments and the opposition to the Bill from privacy advocates, including Canada’s ­Privacy Commissioner and the Privacy Commissioners of Ontario and British Columbia. However, it is more likely that it will be allowed to die on the Order Paper when Parliament is prorogued (as is expected some time this Fall), and then re-introduced in a new form, with a new sponsor and a more coordinated effort to gain support from interested stake holders.

So what is all the fuss about? The Canadian Press reported that supporters of the legislation, such as CSIS Chief Richard Fadden, wrote to Minister Toews describing the powers given to law enforcement and security agencies as “vital” to protecting national security.

The Canadian Association of Chiefs of Police (CACP) has expressed support for the legislation. In a Press Release, Association President, Chief Dale McFee, stated: “The CACP has endorsed lawful access ­legislation since it was first introduced by government in 2002. Canadians more than understand the exponential growth in technology which has occurred over the last few decades. Yet, law enforcement is being asked to protect the communities we serve based on legislation introduced in 1975 – the days of the rotary phone.”

On the other hand, the Privacy Commissioner is concerned about the necessity of such legislative measures and their balance with privacy rights. In a release issued by her office shortly after the introduction of the legislation, she made the point that she is, “not necessarily opposed to legislation that modernizes police powers online – but it must demonstrably help protect the public, respect fundamental privacy principles established in Canadian law and be subject to proper oversight.”

Where to draw the line between security and privacy? This matter has received much attention over the past few years, and the answer is not yet evident. The issues are complex, and the technologies even more so.

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Barbara McIsaac of the Borden Ladner Gervais’ Defence and Security Industry Group, primarily practices in the areas of privacy and access to information law. She can be reached at bmcisaac@blg.com.
© FrontLine Security 2012

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