Lawful access law sleeping, but not dead, experts say

A lack of movement on the government's lawful access legislation doesn’t necessarily mean the bill will be scrapped, experts and opponents of the legislation say. "I know the summer break starts soon, but I think the legislation is still on the table,” Tamir Israel, staff lawyer with the Canadian Internet Policy and Public Interest Clinic (CIPPIC), said in an interview. “If they plan on making changes to it, it wouldn't be a reintroduction, it would be working from the same legislation and trying to fix it in some sort of committee,” he said. Bill C-30, the lawful access bill formally entitled the Protecting Children from Internet Predators Act, was tabled in the House on Feb. 14 after similar bills died on the order paper due to elections or prorogations under the minority Conservative government. If passed, the law would require Internet and mobile providers to disclose customer information without court-ordered warrants—such as names, addresses, phone numbers, email addresses, Internet protocol addresses, and device identification numbers—as requested by law enforcement authorities. On Feb. 15, Government House Leader Peter Van Loan responded to criticism and privacy concerns with a declaration that the bill would be sent to a House committee for study before second reading, providing for significant changes to the bill. Fraser Malcolm, a spokesman for Van Loan, reiterated that plan in an interview last week. “We said that we would put it to committee prior to second reading to deal with the broader issue of protecting Canadians, and respecting privacy at the same time, and how best to do that, but at this time there has been no debate scheduled,” Malcolm said. The government has not yet formed a committee to study the bill or said which committee it would be sent to. Ned Franks, retired professor at Queen's University and parliamentary process expert, said in an interview with The Wire Report that the government has four options to proceed with the bill. Those are withdrawing the bill outright; allowing it to die on the order paper at the end of the parliamentary session; establishing a special committee to examine the bill’s contents and issue a report; or establishing a commission to investigate the bill and related issues independently. “They could say, ‘OK, we're going to let it drop, but we'll set up a commission of investigation to go into this and report back,” Franks said. Of those options, Franks said he believes the government should establish a joint committee comprised of senators and MPs to study the bill. “What I would like to see them do is to set up a special joint committee of the Senate and the House of Commons, and refer the subject matter of the bill to them and then invite the committee to offer its thoughts,” he said. “Is the scope of the bill appropriate? Does it give the right investigative powers to the officials? Does it ensure freedom of speech and access to information, and so on? Then have them report back,” Franks said. He said the issue of telecommunications monitoring is “far too important a subject” for the government to “ram” the legislation through Parliament. “In effect, it's like legislating cellphone conversations, legislating content of mail, and what's in newspapers and on television, all at once,” he said. Israel, who has followed the lawful access debate since previous incarnations were introduced in earlier Parliaments, said he believes the government will continue to work on legislation in one capacity or another. “They seem to be behind it, so I wouldn't expect for it to just disappear, even in spite of the adverse reaction that the bill received in the public,” he said. Israel said he believes some aspects of the bill are “innocuous,” while others could be fixed. Some provisions would be difficult to fix, he said, such as proposed rules requiring telecom companies to comply with mandatory technical upgrades. “I think it just goes too far in the powers it grants. It doesn't allow for enough safeties, and I think that might be a difficult one because there are so many parts to it,” he said. Following the tabling of the bill in February, critics called it a “wide open” surveillance bill that would give appointed inspectors access to telecom providers' facilities and data centres. NDP MP and digital issues critic Charmaine Borg said she expects the government to scrap Bill C-30 and to reintroduce a similar one in its place. “I wouldn't be surprised if the government comes back with a new bill,” she said. “I'm almost half expecting that, but nothing's for sure right now.” Timothy Smith, a spokesman for the Canadian Association of Chiefs of Police (CACP), said his organization would like to see the government proceed with Bill C-30. "We're interested in continuing the dialogue to continue the conversation with both sides of this issue in order to reach something that's best that balances the law enforcement's concerns with those privacy groups," Smith said in an interview. Don Boudria, senior counselor of parliamentary affairs at Hill and Knowlton Strategies and a former Liberal government House leader, told The Wire Report that C-30 "fits the perfect profile" of a bill that would die on the order paper because of the controversy around it. "When I was government House leader, if I had a controversial bill like that, you usually put it on the back burner. Then you put it more on the back burner, and then you put it on the back burner a little bit more, and then, whoops, prorogation occurs, and the bill dies on the order paper," Boudria said. Boudria said that there are three outcomes for the bill: the government proceeds with it, drops it, or revises it after prorogation to produce a new bill. “I don't know if they will have a revised bill, and I don't know if they will have no bill at all, but if I was a betting man, I would say the least likely scenario is that they'll proceed with the present bill,” he said. —With files from Asha Hingorani news@thewirereport.ca

Lawful access law sleeping, but not dead, experts say

News | May 9, 2012

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