Tuesday, May 20, 2014

In Defence of Online Privacy

For advocates of online privacy, these are alarming times. In the wake of the revelation that the Canada's spy agency has been using airport wifi to track Canadians, came the news that Canadian  internet providers have been providing confidential information about their customers to Canadian government agencies at a rate that has been described as "staggering" and "jaw-dropping".  In 2011 alone, Canadian government agencies submitted over 1.2 million requests for confidential customer data, often without a warrant or even a clear reason or justification. In some cases, it is as simple as a government agent picking up the phone and requesting the data, with no written request required.

In spite of the apparent ease with which they can access private information, the Canadian government is proposing to make it even easier for a wide range of "public officers" to access information about your online activity. Bill C-13 contains a number of provisions that would make necessary updates to the law to deal with cyberbullying and cybercrime. However, the government has also tacked on a number of controversial provisions which don't directly relate to cybercrime, but which would expand the ability of government officials to access your online information, in some cases without a warrant, and without your consent or knowledge. That part of the Bill is basically the same cyber-spying legislation that Vic Toews tried unsuccessfully to get passed when he was Justice Minister. That legislation was killed, and with good reason. The law didn't sit well with privacy advocates, nor with some conservatives who have fought to protect citizens from unwarranted government intrusion in Canadians private lives.

There is no question our laws need to be updated to deal with the reality of online crime. The question is why it needs to be done without the usual safeguards that protect the rights of law-abiding Canadians to carry on their day to day lives without the constant threat of government surveillance. As the mother of cyber-bullying victim Amanda Todd has pointed out, violating people's privacy without valid justification creates more victims, not less. The answer to cybercrime is not to allow the government to violate its citizens rights with impunity. In fact, it's fairly clear some of these provisions have little to nothing to do with addressing cyberbullying.

Proponents of the Bill have advanced a number of arguments in favour of the cyber-spying provisions. I find some of them unconvincing, and some of them downright frightening.

First, it has been suggested that people should not be standing up for the privacy rights of cybercriminals. This is just basically a re-hash of Vic Toews' infamous statement that if you don't stand with the government, you stand with child pornographers. This is not about the privacy rights of criminals. This is about the privacy rights of all Canadians.

Second, it has been argued that if you have done nothing wrong, you have nothing to fear. But that is precisely the problem with warantless spying. To get a warrant, the police have to show some reasonable and probable grounds for believing you have committed a crime. If they don't need a warrant, they don't have to show any grounds to believe you have done something wrong. They can access your private online information for any reason they want.

Third, it has been argued that these are merely "tools" that will help the police solve more crimes. Of course they will. If the police knew what everyone was doing at every hour of the day, they would be able to solve every crime. But then we would be living in a police state. Likewise, this online surveillance is an unwarranted intrusion on the ability of Canadians to go about their daily lives with some degree of privacy.

Fourth, it has been argued that people already share a great deal of information online, often through social media sites such as Facebook, that in turn harvest and sell that information. However, that is different. While there are no doubt problems with the way sites like Facebook share information, when you share information on Facebook, you at least do so knowingly and voluntarily, and subject to the terms of your user agreement and the privacy laws that govern these sites.  In the case of online spying, it is being done without your consent or knowledge, and often with little or no obvious legal justification.

But the most pernicious argument is the suggestion that online privacy is a "myth" or an "oxymoron". That members of the public should have zero expectation of privacy when they go online. That somehow, everything we do online is and should be available to anyone else, including the police if they want it.

To me, this argument misunderstands both the nature of the internet and its importance to modern-day life, and sets us on a very dangerous path with respect to the relationship between police and private citizens. It is also a self-defeating argument for those who claim they are trying to protect our children from online bullying and crime.

For starters, I don't think many people would suggest that the government should be able to randomly open and read our mail, or have unrestricted access to listen in on our private phone calls. In fact, a those things are the very hallmarks of a police state. Yet this "no privacy" argument suggests that if you send an e-mail to a friend, you should expect the government to read it, and if you use skype to call the grandkids, then you should expect the government to be listening in. The internet is an important vehicle for private communication, and people using it should enjoy the same protection as those making a phone call or mailing a letter.

Similarly, unless you are doing something illegal, the government has no legitimate interest in knowing what you are reading, or what you buy at the supermarket. Yet the "no privacy" advocates are basically suggesting that if you do your reading or your shopping online, it is fair game for a warrantless police search.

The reality is that in this day and age, many of us spend a significant part of our day online. Some of that time is spent doing things that are shared with the public (like this blog post, or things said on twitter). Some of those things we reasonably expect to remain private and confidential (like online banking, online shopping or personal e-mails). Unless we are doing something illegal, the police quite frankly have no business knowing most of what we are up to online.

Citizens in democracies have fought hard for the rights to ensure that their lives are not the subject of unwarranted government oversight. Many around the world still do not enjoy these rights. These rights are now very much under assault by laws that seem well intentioned, but which ultimately undermine important democratic safeguards. It is time for Canadians to stand up for their rights to privacy, their rights to protect their personal information and personal lives and ultimately their right to live in a free and democratic society.

Further, given that most online crime involves a breach of the victim's online privacy, it is self-defeating to combat online crime by creating even less online privacy. The cyber-surveillance provisions can and should be removed from this bill, and the government, instead of once again tacking the same old bad laws onto another Bill, needs to go back to the drawing board on its whole approach to cyber-surveillance and online privacy and security. Whether they are living online or offline, law-abiding Canadians should be entitled to go about their day to day lives without having to look over their shoulder and wonder who is watching them.

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