This is a special edition of my public safety green paper consultation project. This time around, I’ll be focusing on just the questions dealing with digital investigations, encryption, etc. It’s all one section on the consultation website.
In contrast to many of the other sections, where I felt that the questions were leading in a positive direction, I’m deeply worried with where the government wants to go with digital investigative powers. I feel like there’s a fundamental disconnect between how the government thinks online security and encryption works and how they actually works. I hope that others who understand the value of encryption can join with me in voicing our fears to the government.
Investigative Capabilities in a Digital World
How can the Government address challenges to law enforcement and national security investigations posed by the evolving technological landscape in a manner that is consistent with Canadian values, including respect for privacy, provision of security and the protection of economic interests?
As long as almost all crimes that cause actual harm to someone must be undertaken in the physical world, it makes sense to value the privacy of Canadians and their economic interests (especially as Canada tries to become a leader in digital technology) more highly than simple investigatory convenience.
It is impossible to make encryption with a back-door only the government can use. It’s impossible to expect Canadian businesses to be competitive internationally if they’re crippled by the costs of maintaining more data than they need to for their own business operations or maintain expensive intercept capabilities. And maintaining subscriber data puts Canadians at much higher risk of embarrassment, extortion, or identity theft in the event of a data breach.
As things currently stand, privacy right and economic interests are too important to allow any significant compromises to them to be made.
In the physical world, if the police obtain a search warrant from a judge to enter your home to conduct an investigation, they are authorized to access your home. Should investigative agencies operate any differently in the digital world?
Not particularly. Requiring a judge to approve most requests – like subscriber information or intercept capability – is an equally useful norm in both the physical and digital worlds. With respect to encryption, encryption keys should fall under the general protection from self-incrimination that everyone enjoys under the charter.
Currently, investigative agencies have tools in the digital world similar to those in the physical world. As this document shows, there is concern that these tools may not be as effective in the digital world as in the physical world. Should the Government update these tools to better support digital/online investigations?
Any tools that would better support investigations must have their potential utility balanced against their real and significant privacy risks. In this document, the government has failed to explain how these tools would justify the substantial risk to privacy rights that they pose.
Is your expectation of privacy different in the digital world than in the physical world?
I wouldn’t say they’re different, precisely. It would be better to say that I believe that the digital world offers us, for the first time ever, adequate privacy. This is a precious thing and the rise of organizations like OpenMedia show how dedicated Canadians are to maintaining it.
Basic Subscriber Information (BSI)
Since the Spencer decision, police and national security agencies have had difficulty obtaining BSI in a timely and efficient manner. This has limited their ability to carry out their mandates, including law enforcement’s investigation of crimes. If the Government developed legislation to respond to this problem, under what circumstances should BSI (such as name, address, telephone number and email address) be available to these agencies? For example, some circumstances may include, but are not limited to: emergency circumstances, to help find a missing person, if there is suspicion of a crime, to further an investigative lead, etc…
Circumstances where authorities can obtain subscriber information without a warrant should be limited to those where the health or safety of the subscriber or others at that dwelling can be reasonably assumed to be at risk. Some examples: suicide threats where trained professionals believe there is probable cause to worry, a missing persons case being filed for the subscriber or there being reasonable grounds to suspect the subscriber is a missing person, posts on social media that cause family and child services to worry for the safety of children at the residence, or posting a ransom demand.
Do you consider your basic identifying information identified through BSI (such as name, home address, phone number and email address) to be as private as the contents of your emails? your personal diary? your financial records? your medical records? Why or why not?
I consider it to be approximately as private as the contents of my emails. While I conduct almost all of my online activities under my own name, it is occasionally useful for me to go incognito (for example, if I expect harassment or threats as a result of what I write). Because of this, I have expectations that my subscriber information will be kept private in almost all cases, as I would with my private emails.
Do you see a difference between the police having access to your name, home address and phone number, and the police having access to your Internet address, such as your IP address or email address?
Yes. Having access to a home address simply tells you where someone might be found. Having access to an IP address and an email allows you to develop a complete profile of someone. What sites they visit, who they interact with, and what they comment — all laid bare. It is much more invasive than having a mere physical address or a phone number (as few places keep records of what number they were called with, while almost all website keep record of what IPs visited them).
The Government has made previous attempts to enact interception capability legislation. This legislation would have required domestic communications service providers to create and maintain networks that would be technically capable of intercepting communications if a court order authorized the interception. These legislative proposals were controversial with Canadians. Some were concerned about privacy intrusions. As well, the Canadian communications industry was concerned about how such laws might affect it.
I agree with Canadians who expressed privacy concerns and the concerns of our communications industry.
Should Canada’s laws help to ensure that consistent interception capabilities are available through domestic communications service provider networks when a court order authorizing interception is granted by the courts?
Only if the fully cost is borne by the government and interception is only done after court orders are granted. Furthermore, the government should conduct thorough security audits of any intercept capability it develops. Bad actors using intercept capabilities would be devastating for any Canadians affected and seriously shake overall faith in law enforcement.
If the Government were to consider options to address the challenges encryption poses in law enforcement and national security investigations, in what circumstances, if any, should investigators have the ability to compel individuals or companies to assist with decryption?
There should be no circumstances under which individuals or companies are compelled to assist with decryption. Requiring companies to decrypt devices weakens security for all Canadians. It is impossible to build a backdoor that can’t be exploited and any weakening of security on commercial devices opens Canadians up to much higher risk of identity fraud or theft. Individuals should not be compelled to hand over their encryption keys for the same reasons they are not compelled to self-incriminate in testimony.
How can law enforcement and national security agencies reduce the effectiveness of encryption for individuals and organizations involved in crime or threats to the security of Canada, yet not limit the beneficial uses of encryption by those not involved in illegal activities?
This is impossible. You can’t simultaneously weaken and maintain security. Police must accept that encryption is here to stay. Without it, simple actions like shopping online would be impossible. Any effort to weaken encryption in Canada would be devastating to our technology sector and threaten the viability of the internet in Canada.
Should the law require Canadian service providers to keep telecommunications data for a certain period to ensure that it is available if law enforcement and national security agencies need it for their investigations and a court authorizes access?
Yes, but only if the period is reasonable. Forcing providers to keep data for longer than a month would quickly strain their infrastructural capabilities, increasing our already high internet costs to unacceptable levels.
If the Government of Canada were to enact a general data retention requirement, what type of data should be included or excluded? How long should this information be kept?
For the law to be any use at all, websites visited would have to be tracked. This could be balanced with privacy concerns by only recording the domain name and leaving out specifics of which pages were visited. Information should be kept for at most one month. Beyond that, law enforcement can’t claim it urgently needs the data. This strikes the right balance between the usefulness and the cost of maintaining this type of record.