Ryan C Briggs

About a week and a half ago the new Conservative party introduced a bill to modernize police power and internet interception rules in Canada (see more here). The bill is based on the assumption that the internet is analogous the phone system. On the program Search Engine Minister of Public Safety Peter Van Loan said, “What we did is we […] tried to find a way of modernizing and updating out laws on intercept technologies of the police, and we tried to create a regime for the cyber world, the internet world, that parallels as much and as closely as possible that which existed in law for the old world of the analog telephone and the single telephone company. We think we have done that.” I also think they have done that, and I think that it is a horrible idea.

The basic problem is that the internet is not like the telephone, so any system that tries to apply the same logic to both is bound to be incoherent. The basic idea behind the new legislation is that internet communication consists of a stream of data between two points, just like the phone system. Under the new bill, the police would not need a warrant to gather information about either end of the transmission—who you are, where you live, your phone number, etc.—but would need a warrant to know the content of the transmission. The is broadly similar to how phones taps are legislated.

The problem is that the internet is composed of many systems, and they are not all analogous to the phone system. First, we have email and instant messaging. This system is essentially equivalent to phones. Policing emails and instant messages in the same way as phones makes sense. If the police do not need a warrant to gather information on who is phoning to who, but they need one to know what people are talking about, then the law is consistent across phones and the internet. People may disagree with the outcome of the law, but it is consistent and Conservative policy is sound.

Unfortunately, there are other systems at work on the internet that are nothing like phones. This is common sense, but it seems the Conservatives missed it. Besides point-to-point messages like emails, the internet also operates like a giant library. People access information on webpages, and leave their IP address behind in records. Allowing the police to attach these IP address back to names without a warrant is exactly equivalent to letting the police connect library card numbers to names without a warrant. This represents a large expansion of police power.

The third, and most unique system, is that the internet allows anyone to create easily accessible information with minimal effort or expense. There is no good analogy for this kind of system, as it is probably represents the biggest technological and social shift that any of us will ever experience. Legislating this new form of information production as if it were a rotary phone is madness. This system is unique, and part of what makes it special is that people can produce information with a degree of anonymity that other previous information dissemination technologies lacked. Currently the veil of anonymity can be punctured, and this is a good thing. If someone breaks the law—by posting child pornography, to use the Conservative’s favourite example—then the police can get a warrant and learn that person’s identity. The key is that they need a warrant. This judicial check on police power allows all law abiding citizens to create and share information free from government control and snooping. This should be a small government, pro-private sector party’s dream. Apparently it isn’t.

When I think about this bill, I am only left with two options. Either the Conservatives are intentionally trying to vastly increase police power in Canada, or they are so dumb that they actually think that the internet is like a big system of rotary phones. Honestly, I don’t know which one is worse.