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Is the government trying to bring back the online spying bill?

This week, comments from Stephen Harper about police powers for investigating online crimes have privacy advocates worried that the government might exploit Canadians’ fears around cyberbullying to reboot its failed online spying program. Using language pulled directly from bill C-30 talking points, Harper noted that law enforcement encounters difficulties because “investigative tools for our police officers have not kept pace with the Internet age. That must change.” This is in spite of the fact that law enforcement has to date failed to provide factual evidence that the current framework is ineffective. This isn’t the first time we’ve seen sensitive issues used to justify an inappropriate response; in a failed attempt at positive spin the bill itself was renamed the “Protecting Children from Internet Predators Act.” In a much worse PR blunder, Safety Minister Vic Toews incited uproar from Canadians when he suggested that citizens and privacy commissioners who voiced concerns over the invasiveness of the bill were aligning themselves with criminals.

No one would disagree that police should have all the tools they need to effectively do their jobs and put a stop to criminal activity. But as Jesse Brown noted, it’s not at all clear, in the case Stephen Harper referenced in the House of Commons, that so-called ‘outdated’ investigative tools were the source of police difficulties. In fact, “[a]s the RCMP has itself documented, Internet providers require no warrants from police in [these kinds of] cases”.

In addition, the online spying bill was never about simply modernizing police powers to keep up with the challenges of new technology. As Privacy Commissioner of Canada Jennifer Stoddart noted, it “added significant new capabilities for investigators to track, and search and seize digital information about individuals.” The administrative challenge of obtaining warrants in a timely way, she argued, should be addressed with administrative solutions, “rather than by weakening long-standing legal principles that uphold Canadians’ fundamental freedoms.”

The issue is one of proportionality—giving law enforcement the tools it needs without sacrificing the privacy of law-abiding citizens. The online spying bill would have allowed a range of law enforcement officers to gain access to Canadians’ personal information without a warrant, and without effective oversight. It was invasive, costly, and poorly thought out, and therefore was not an appropriate tool for law enforcement.

The danger of frameworks like Toews’, which tell us we can have privacy or public safety, is that they throw out this idea of balance, and create the illusion that there are only two choices. But as Ottawa Law professor Michael Geist pointed out this week, there are in fact provisions in the government’s overarching cybersecurity strategy that could be used to tackle issues like cyberbullying without sacrificing the privacy of all Canadians.

The government’s widely unpopular spying bill has been beaten back so many times now. Canadians won’t be fooled by an attempt to exploit sensitive issues in order to justify a massive, costly, and inappropriate surveillance system.

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