Originally Podcast Feb 7, 2012
Privacy Commissioner Ann Cavoukian and host Jesse Brown critique the government’s online surveillance bill into a pile of smoking ruin and ask that everyone write their MPs urgently.
Search Engine Podcast #123: Privacy Commissioner Ann Cavoukian on Lawful Access
AUDIO RUNS ~ 13 mins
Jesse Brown: Well, before I say anything else, I want to start by thanking the Ontario police. Quite sincerely – as I speak it’s just been announced that there’s just been a major bust of child pornographers. 60 people have been arrested, including a daycare worker, and 8940 IP addresses were tracked in this investigation of people who were somehow affiliated with this child porn ring. The details are just coming out, I don’t know too much about it but it does seem like this was a case where actual children were being hurt and this wasn’t just a question of sharing existing material but creating child pornography.
And what a heinous crime, what an awful and despicable thing and thank god that there are police who are dedicating resources to bringing these people to justice. And thank god that they were able to do it with our existing laws and they did not need to spy on us without any court oversight whatsoever in order to pursue this investigation and to arrest these people. And that’s why I found it so strange when our Public Safety Minister Vic Toews tweeted  that “Recent child porn busts show that police need right tools to fight online crime”. Well, doesn’t this recent child porn bust that you’re referring to show the police have the right tools to fight online crime? How does it show that? What are you talking about?
Listen, I’m a little frustrated by this because this came on the heels of a revelation that the group Open Media leaked a letter from the police chief’s association , basically an internal letter to fellow police officers saying, “Do you have any examples where we needed lawful access to pursue a case, because we don’t have any good examples, and it would really help us in getting this legislation if any cops out there could point to some. And even urged them to do this even if it jeopardized ongoing investigations. They did this with taxpayer money trying to find these examples.
They have yet to procure one good example of a case that has not gone through, I mean wouldn’t that be the Vic Toews tweet; “we were *unable* to bring 60 pornographers to justice because we *don’t have* the appropriate law enforcement tools because law enforcement needs surveillance powers”?. His tweet just doesn’t make any sense at all to me, I have invited him on to this program to prove how exactly this case proves the need for ‘Lawful Access’, it’s the second time I’ve asked him on to this program, I have yet to receive a reply. His predecessors in the office of Public Safety Minister, Peter Van Loan and before him Stockwell Day, they both have come on to this program to talk about ‘Lawful Access’ and I trust that Mr. Vic Toews will do the same. His public comments and the police chiefs indicate very strongly that ‘Lawful Access’ is upon us, this legislation is imminent, we should be facing it any day now and that’s why I think it’s crucial that he comes and answers some questions about it.
Now, with or without the Minister’s participation this program will be focusing on the issue, we’ve focused on it a lot in the past, we’re going to be drilling down on it continuously throughout this month. Once the police get these powers, it will be next to impossible for these powers to be revoked. So this is a crucial moment for people to become informed about this and I’m going to be doing my best to shine some light on it. And with that in mind I attended a recent symposium on privacy and surveillance  that was thrown by our Privacy Commissioner here in Ontario, Ann Cavoukian, and the Commissioner was good enough to give me a brief interview following the symposium is here is what that sounded like.
Jesse Brown: Hello Commissioner Cavoukian.
Ann Cavoukian: Hello Jesse, it’s a pleasure.
JB: Nice to have you back on Search Engine.
AC: Thank you so much.
JB: Lawful Access is upon us, from what we heard today it seems like trying to get this thing killed entirely might not even be an option. Does that sound right to you?
AC: I think getting it killed entirely would be extremely difficult. My hope is that we will at least be able to influence it enough that we can have some amendments that will prevent the encroachment of surveillance as it is presently configured in the bill.
JB: How can this thing possibly be amended, I mean it seems like there’s these two aspects of it, warrantless access to subscriber information, and maybe even more alarmingly just the burden on ISPs to collect this stuff about everyone in the first place. So if either of those things are intact then you know…
AC: I am the eternal optimist. Why can’t we get rid of warrantless access? I mean, there has yet be one convincing case presented by the Canadian Association of Chiefs of Police and that’s very telling. Not one real case has been brought forward as to why they need this. So given the lack of evidence, there’s no credible evidence – why do we need this? And on the other side, the downside, the harm is significant. In terms of not just the financial costs to the telcos and ISPs – they’re going to have to reconfigure all their systems to accommodate this, but you won’t know the breadth of the access, you won’t know if it’s appropriate or not… and honestly as I said, the people that I know in law enforcement, the Chiefs of Police in Toronto, Ottawa, they’re wonderful I would trust them completely. I’m not worried about them. But you won’t know who might access it for an unauthorized reason. You won’t know what police officers are accessing it. And we know (especially in BC there’ve been a couple of examples) of police officers accessing databases, information not on an authorized basis. So the creep into accessing information that may or may not have been granted if you sought a warrant, we know that will expand, and it will expand beyond people that are in breach of the law or suspected of wrongdoing. It will expand to you and I. It will expand to everyone. This is wrong.
JB: Where are the telcos and ISPs on this? We know that they don’t want to spend the money, and we know they don’t want to spy on their own customers, so why aren’t they here today, and why aren’t they fighting this as forcefully as you are?
AC: You know, that’s a very good question. I don’t know if they just don’t want to get on the wrong side of law enforcement or, I don’t want to speak for them. I know that they’re not excited about doing this by any means, it’s going to cost them, they’re going to have to reconfigure their systems. The small telcos, we have heard from them at another conference, it could put them out of business entirely. And what I tell the business community is, don’t think it’s going to stop at the telcos. ISPs, anyone involved in communicating information online could potentially be subjected to the same requirements. So speak up, for god’s sakes, do it now – we’re trying to do this on the part of citizens.
JB: There’s a young hacker and security activist you may be aware of, Christopher Schoen
AC: Oh yes. We’re both Armenian, I know Chris [laughs]
JB: Okay. So I was speaking to him and he told me something very alarming that made me change how I though about this entirely, and what he told me about this was, in the United States, Sprint was facing all these requests from law enforcement for GPS data of cellphone subscribers. And it became such a burden on them to handle these manually one by one that they created a web portal so the cops could just…
AC: Aw, jeeze [sighs]
JB: …get online and look up somebody’s GPS coordinates. The number of requests made – and this isn’t even a question of court oversight, Sprint was happy to hand over this information – as are ISPs are already having to hand over information, if cops come to ISPs and ask for the information the ISPs hand them over. But the automated nature in the case of Sprint led to 8 million requests  …
AC: Oh god.
JB: …for GPS data it was up by, you know, an order of magnitude. So is that not the real threat here?
AC: This is what terrifies me. It will become the norm. It will just be that of course the police will access information on everybody because they can and why not? That’s wrong, that is fundamentally wrong, it flies in the face of freedom and liberty. We live, arguably, in a free and democratic society. Hopefully. Still. And freedom isn’t based on “the state accesses whatever information they want on it’s citizens” – NO! They’re supposed to have a reason, and their collection of information from citizens is supposed to be limited and for particular purposes that are specifically identified to individuals. I always say this – it’s not about having something to hide, and people say “Well, if you have nothing to hide…” It’s ridiculous, it’s not about secrecy, it’s about control. Free societies; it means you don’t have to give the state whatever it wants just because it feels like accessing that information. They have to have a reason. That’s why we want them to go to a judge, and we also want the standard in seeking the warrant to be one of “reasonable grounds to believe” some wrongdoing, not just I’ve got “reasonable suspicion”, I’ve got a hunch. It’s ridiculous.
We have to speak up now in order to ensure that freedom continues strongly in our country. Instead of this – as I always taught, bit by bit we’re losing it, the encroachment of surveillance into our daily lives, like that boiling frog story where the frog’s in that hot water and before he knows it he’s dead because he can’t tell how hot the water’s getting.
JB: So if the specific compromise or amendment that you’re seeking is to put back court oversight, I mean, one would wonder then why [laughs] a lawful access bill with court oversight, you know why do we need the bill at all, but…
AC: Which is not a bad question, in and of itself…
JB: Are there any other specific amendments that you’re seeking.
AC: We want to ensure that even with court oversight we elevate the standard of proof required in terms of a “reasonable grounds to believe” as opposed to a suspicion base. We also want to ensure that there is somebody watching that process. Like CSIS has CIRC. They are the oversight body a specific body that oversees their activities and can bring them to account. It’s all about accountability. So if you have the time take a look at the measures we identified in our twenty-two page letter to the ministers involved. There’s about three or four things in addition to this that we’re seeking but those are the major things. If we could get either of those things, I mean obviously we want to get warrants. But if we could get warrants and a “reasonable grounds to believe” standard, that would be huge.
JB: Let me finally ask you, just a – I hate to kind of project into the future some sort of a sci-fi scenario but it’s not that far off to imagine the magnitude of data sets that could be collected and then, through regression analysis there’s all kinds of number crunching you can do but if there’s no terms set into the span of information being collected or what is available to cops it’s entirely possible to apply predictive models to crime fighting, the same that have been [applied] to you know stock markets, or any number of I mean gammification  is all the rage in any other discipline so…
JB: …what is to stop law enforcement from trying to get some predictive power over crimefighting, and we’re getting into some Phillip K. Dick stuff here, trying to predict crimes before they happen, but it’s actually not that far from where technology is at now.
AC: Oh there’s nothing to stop that.
JB: Is there any kind of limitation on the time span of data that…
AC: Let me point to one recent development and it was just, this just came out earlier this week in the EU, the European Directive on Data Protection which was introduced in 1995 has recently been revised and strengthened. They have specifically included a right to be forgotten, first time ever. The right to be forgotten is precisely, given all the amount of data that’s out there about us, surely someone should have the ability to say, “cut!” to some of that data, especially in the early years, later on you’re trying to get a job, and you want to forget some of that stuff you did as a teenager or University kid, whatever. They’re instituting a right to be forgotten and they’re applying to to private sector as well as government agencies. Now we have yet to see if it will be successful but it is the first time they are formally requiring it as a requirement of all, what was it, 27 EU countries. So stay tuned, that’s one to watch.
JB: Is this something you’re going to be asking for with this bill specifically?
AC: I would love to ask for it but I think it is such a long shot. If we get warrants and we get a reasonable standard of belief, I would be very happy. That in itself is a long shot I assure you.
JB: Commissioner Cavoukian, thank you very much once again.
AC: And can I add just one thing, please tell your members, people who listen to you to write their MPs, if they go to our website, RealPrivacy.ca there’s a write your MP tool, it’s real easy won’t even take five minutes, we need everyone to speak up. This is a call to action.
Jesse Brown: Search Engine is produced by me with the help of a community of listeners I’ve never thought of as my ‘members’. Ew. Email me at firstname.lastname@example.org, check out the blog at searchengine.tvo.org. The videos go up at youtube.com/tvosearchengine, and I am on Twitter @jessebrown. This program is released with a Creative Commons license and therefore has waived its right to be forgotten. The next podcast will be up on Tuesday.
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