Privacy czar tries to broker Internet surveillance bill solution

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A woman uses her computer key board to type while surfing the internet in North Vancovuer, B.C., on Wednesday, December, 19, 2012. The federal privacy watchdog is trying to help the Conservative government find a compromise in its contentious bid to bolster Internet surveillance powers. THE CANADIAN PRESS/Jonathan Hayward

OTTAWA - The federal privacy watchdog is trying to help the Conservative government find a compromise in its contentious bid to bolster Internet surveillance powers.

A blueprint solicited by the privacy commissioner's office proposes new procedures to give police and spies key information about Internet users while retaining the principle of judicial oversight, a memo obtained under the Access to Information Act shows.

The internal memo reveals assistant privacy commissioner Chantal Bernier asked University of Montreal law professor Karim Benyekhlef to come up with the proposal — "to help find a middle ground between security and privacy" — following intense public outcry about the government's planned approach in Bill C-30.

The federal legislation would allow police, intelligence and Competition Bureau officers access to Internet subscriber information — including name, address, telephone number, email address and Internet protocol address — without a warrant. An IP address is the numeric label assigned to a computer on the Internet.

Currently, release of such data, held by Internet service providers, is voluntary.

Opponents of the bill say allowing authorities access to Internet subscriber information without a court-approved warrant would be a dangerous infringement of privacy because even that limited data can be revealing.

The bill would also require telecommunication service providers to have the technical capability to enable police and spies to intercept messages and conversations.

The government indicated the bill would go directly to a House of Commons committee, skipping the usual second reading, to allow for amendments. But it has not yet resurfaced.

The internal memo — prepared last July for Bernier, Privacy Commissioner Jennifer Stoddart, and the office's senior lawyer — brands Benyekhlef's plan a "warrant light" approach to judicial authorization.

Benyekhlef, a former federal prosecutor who is now director of the university's Centre de Recherche en Droit Public, concludes that the federal bill is inconsistent with the Charter of Rights because it allows warrantless access to subscriber information.

"There is tradition in Canadian law that the state must have a warrant before exercising its search or seizure powers," Benyekhlef said in an interview.

He proposes a five-step process in which the authorities would first apply to a court for an order seeking subscriber data. This could be done in person, by paper or on the phone.

A judge or justice of the peace would review the application to ensure it sets out "reasonable suspicion" that the Criminal Code or other federal law has been breached and that the information sought relates to the alleged offence.

If the application conditions are met, a signed order would be provided to the investigator, who could then present it to the legal division of an Internet provider. The provider would then be required to hand the investigator the data and maintain a record of the transaction.

The privacy commissioner's analysis of the proposal points out its similarity to the production order powers currently available to authorities seeking financial and commercial information, in place since 2004.

The memo notes this power allows police, after receiving court approval, to present a financial institution or other commercial firm with an individual's name. The firm must then produce account numbers, date of birth and current and previous addresses.

The privacy commissioner's office understands the challenges faced by law enforcement in fighting online crime "at a time of rapidly changing communications technologies and the need to modernize their tactics and tools accordingly," said Scott Hutchinson, a spokesman for the commissioner.

The office wanted to see whether there was a tool that would help authorities get judicial approval to obtain the information they want within desired time limits, he said in a written response to questions.

"Our office has thus far consulted with the Canadian Chiefs of Police on this document and we continue our analysis of this issue," Hutchinson said.

The privacy commissioner "continues to try and stay on top of developments" relating to the online surveillance bill and has kept the lines of communications open with the departments involved, he added.

"We await to see what the government’s intentions will be for this bill, and will be ready to share our observations and expertise to help ensure that the privacy rights of Canadians are protected."