Not many answers but lots and lots of questions!!!

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Monday, November 07, 2005

Internet Blind Spot Reappears in Lawful Access Discussion 

It seems neither the lawmakers nor anyone else involved in the debate around lawful access laws - the proposed legislation to force ISP's to build wiretap capabilities into the Internet - is standing far enough back to see the big picture. This is not new. For whatever reason, people see the Internet communications as fundamentally different from other forms of communication. Take the dot.com boom for instance. Whole swaths of smart people believed that the 'net would be some sort of business miracle - that we could suspend tried and true economic principles simply and solely because we were using computers instead of faxes, phones, paper or clay tablets to do business. With the exception of those that have been frozen in ice the last several years we all know how that came out.

So it begins again. The law enforcement agencies have asked the government for new Internet wiretap legislation and the privacy intelligentsia's knees are jerking in response. All based on the precept that the Internet is a special case requiring special legislation and powers. If we step back and consider the big picture it's apparent they're all haring off in the wrong direction. We need to take it back to first principles.

What is a principle? If we AskOxford we find out a principle is a fundamental truth or proposition serving as the foundation for belief or action.

There are several fundamental truths here:

We need to protect ourselves from those that would use modern communications capapbilities (of whatever type) to do us harm.

Governments are responsible for producing effective legislation to counter this and the law enforcement agencies for informing the government of their needs and using those laws to the best of their abilities without trampling the rights of the citizens.

Citizens are responsible for ensuring that our freedoms and democratic principles are not compromised in the process.

Another truth is that, as anyone who has spent any amount of time studying and/or working with Canada's telecommunications laws can tell you (journalists for instance), the current set of laws are a confusing crazy quilt made of pieces that either overlap or leave holes. Various governments have patched, band-aided, piano-wired and chewing gummed various pieces of legislation into place at various times. Now here comes the Internet and the whole thing has gotten issue cancer.

Irwin Kotler, Canada's federal justice minister has got one thing right when he says in Government of Canada to Review Lawful Access Laws "Legislation governing lawful access was originally designed for rotary telephones — not e-mail or the Internet," said Minister MacAulay. "Dated laws allow criminals and terrorists to use technology to hide their illicit activities."

Unfortunately I have to say that (despite the considerable respect that is his due) Michael Geist gets it wrong in - Canada's Big Brother Plan to Reshape the Internet: "Lawful access would also provide law enforcement authorities with a wide range of new powers. For example, authorities could apply for new “production orders” with which they could compel disclosure of tracking data such as cell phone usage as well as transmission data, including telecommunications and Internet usage information."

Neither the capabilities nor the powers contemplated here are new. In terms of privacy and principle, a law enforcement agent reviewing Internet activities is not different from listening to (and recording) telephone conversation (cellular or otherwise) or reading paper-based communications (think snail mail or business records). The only difference is the medium. They have long had this capability and nobody in their right mind would argue they shouldn't.

We don't need special Internet laws or special checks and balances what we need is comprehensive, interlocking privacy and communications legislation with appropriate checks and balances built-in.

I don't envy the Kotlers or the Geists of the world their task.


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