NEW SNOOPING LAW: BIG BROTHER ON THE RIDEAU

WHAT HAS politics done to Irwin Cotler? A renowned lawyer and human-rights
activist, Cotler was recruited in 1999 as a star Liberal candidate for a
byelection in Pierre Trudeau's old riding of Mount Royal, in Montreal. By
2003, he was the federal justice minister and attorney general of Canada, a
job which makes him both Ottawa's lawyer and the guardian of the public's
legal interests.

Cotler's credentials were impeccable. He had represented prisoners of
conscience such as Andrei Sakharov and Nelson Mandela. He had taken on
cases touching every section of the Charter of Rights and Freedoms, arguing
for sometimes-unpopular positions on free speech, freedom of religion,
women's and prisoners' rights. He had travelled the world as a human-rights
campaigner and legal expert.

That's why it's so discouraging for anyone passionate about civil rights to
see Minister Cotler propose legislation giving the state vast new powers to
spy on citizens. The bill, expected this fall, will bring crime-fighting
into the Internet age. But it also will hand police and government agents
new tools that can be used to snoop, pry and potentially trample the
privacy rights of Canadians.

Cotler argues that current laws on wiretapping and surveillance were
designed in the 1970s, when the Internet, cellular phones and encrypted
communication didn't exist. The new measures, he suggests, will do no more
than bring Canadian law up to speed with the new environment.

But hard questions must be asked about whether police really need any new
powers and whether what Cotler proposes represents an unwarranted threat to
individual liberties. Let's not forget that the government already has
sweeping powers to intercept communications, search private homes and
computers and monitor people's behaviour. Warrants are required from a
judge, but it's pretty unusual to have a warrant denied when there's any
real evidence of a crime being contemplated or committed.

This so-called "lawful access" bill will give police and government
agencies new powers to eavesdrop, monitor computer and Internet use, mine
data from computer systems and tap into personal and business e-mails and
other forms of electronic communications.

It will also require telecommunications and Internet providers to keep
extensive records on their clients' online activities and set up what
amounts to an open window on their clients' private communications. Most
worrying of all, some of these new powers can be exercised without
warrants, stripping away a vital safeguard of both personal privacy and a
time-tested check on the powers of the state.

Michael Geist, a University of Ottawa law professor and expert on new media
issues, wrote recently that this provision gives cause for concern.

For instance, one provision would require Internet service providers to
disclose information on subscribers virtually on demand. Geist points out
that law enforcement agencies could make that demand "with only a phone
call under certain circumstances. No judicial oversight. No advance
paperwork. No privacy."

Geist sees little to like in a law that could be used for much more than
fighting terrorists.

"Not only does the proposal . . . create new surveillance powers, but it
actually reduces the level of privacy protection and oversight associated
with that surveillance," he wrote.

Canada's privacy commissioner, Jennifer Stoddart, also is deeply concerned
about the new law and questions whether it is needed at all. While
acknowledging that the government is proposing to build in some safeguards,
she argues they are not enough.

"Given the significance of this proposal, we do not think that the proposed
safeguards are adequate," she wrote in a submission to the justice
department in May.

Stoddart argues that a specific justification should be given for each
surveillance or interception request, and that only a limited number of
senior police officials be allowed to snoop on private communications.
Stoddart is not alone in her concerns about the proposed new bill. The
privacy commissioners of Ontario and British Columbia have both called for
measures to protect individual privacy and prevent abuses.

Everyone acknowledges that Canada's laws should keep pace with the times.
Government must have the means to combat terrorists and international crime
gangs. But that doesn't mean police agencies, tax collectors and federal
agents should be given an electronic carte blanche to stomp on basic
freedoms that every Canadian has the right to expect.