Democracy Gone Astray

Democracy, being a human construct, needs to be thought of as directionality rather than an object. As such, to understand it requires not so much a description of existing structures and/or other related phenomena but a declaration of intentionality.
This blog aims at creating labeled lists of published infringements of such intentionality, of points in time where democracy strays from its intended directionality. In addition to outright infringements, this blog also collects important contemporary information and/or discussions that impact our socio-political landscape.

All the posts here were published in the electronic media – main-stream as well as fringe, and maintain links to the original texts.

[NOTE: Due to changes I haven't caught on time in the blogging software, all of the 'Original Article' links were nullified between September 11, 2012 and December 11, 2012. My apologies.]

Wednesday, February 15, 2012

Bill aimed at internet predators empowers Big Brother government

Just before Christmas, I was given a very personal introduction to the dark side of the Internet.

Working as a talk-show host on the radio, I received an e-mail so deranged it could not be assigned to that ample stack of insults, barbs, and denunciations that are an everyday feature of the business. My habit was to answer garden-variety diatribes with two words, “Feel better”? Half the value of the format is therapeutic, letting people blow off steam. Still, this was different and I sought advice from Ottawa’s chief of police before deciding what to do. In the opinion of Vern White, the e-mail’s author had broken the criminal code and action was justified and advised. An investigation is now ongoing.

The excellent detective assigned to the case laid out my options. These included establishing the identity of the sender and giving them a notification – a formal letter from the police alerting them that what they had done was a crime and that authorities knew who they were. The officer informed me that in 99 percent of the cases that does the trick – you never hear from the person again.  

The other option was going the Full Monty, finding the person, and laying a charge. The advantage to that approach was that occasionally the police are able to get to a psychotic person in need of an intervention before they do harm – maybe to themselves, maybe to someone else. I was advised that this had already happened in the city in a similar threat to a broadcaster. That person’s stalker ended up in a mental institution. So the police said they were glad I was taking the situation seriously. The feeling was, and is, mutual. The Ottawa police have been superb.

And this is where a purely personal saga meets the public policy controversy raging in the House of Commons over the government’s new piece of legislation designed to increase the ability of police to carry out surveillance of electronic communications, the provocatively named Protecting Children From Internet Predators Act. 

In my case, the first step in the police work was finding the sender of the e-mail. So the detective asked my radio station if they could get the writer’s internet information, since our parent company was his internet provider. Get that and you’ve got your subject in jig time. If you don’t get it, the more time-consuming process of seeking a warrant based on the contents of the e-mail begins. My former company would not release the information without a warrant.

The company was absolutely right. Although that decision made the work of the police more difficult, and possibly exposed me to a deranged person for a longer period of time, the other side of the equation is the privacy rights of hundreds of thousands of subscribers of that same IP. They have the right to know that the police should not have the power to access their private communications with the silky-smooth cooperation of their internet provider on the basis of the suspected criminal activities of the few.

Nor should internet providers have to install back-door spy-ware so that they will always be in a position to pass that information along to the police. It is just plain bad policy to undermine the rights of millions of internet users and private companies in order to more easily investigate the misdeeds of hundreds.

The government has said that it isn’t giving the police any power in their new legislation that they don’t already have. If true, why change the law at all? The fact is that police and intelligence agencies will get a major new power with this legislation – the right to access the electronic communications of Canadians, including their telecommunications data, without a warrant. Dress it up as you will, Big Brother is blind-copied on everything we write if this bill passes.

While it is true that this bill offers less information to police than earlier versions of warrant-less wire-tap legislation that died on the order papers of minority parliaments, it still includes name, address, IP address, e-mail address and telephone number. In other words, my threatening e-mailer would be unmasked quite quickly under this legislation. But by forcing internet providers to reveal subscriber data to police without a warrant, everyone else’s data would also be compromised. 

How would anyone ever know if the authorities had been trolling through their communications and data based on nothing more substantial than a malicious tip? With a warrant, the target of the wire-tap has to be informed when the authorized interception comes to an end. Without one, none of us will ever know – unless the matter lands in court.

And that leads straight to the issue of abuse of process. The only thing that separates a democratic state from a police state is the notion of accountability. Police powers are restrained under the due process of our judicial system to reflect the protection of basic freedoms like privacy and the gravity of a criminal investigation that could deprive someone of their liberty. Warrants don’t prevent the police from doing their investigations, they protect the integrity of the system. In order to get a warrant, the police have to demonstrate reasonable and probable cause that a crime is being committed by a particular person.  Remove that requirement and you end up with a system that could be driven by unprofessional hunches, misplaced zeal, idle curiosity, or malice.

The truth is that police in Canada have regularly resorted to warrant-less wire-taps under Section 184.4 of the Criminal Code. In emergency situations, that section allowed them to bypass the permission of a judge before intercepting a suspect’s communications. It also allowed them to conduct those wire-taps without informing the target that his communications had been intercepted once the operation was over.  There is one other major difference. Every year a report is submitted to parliament detailing how many legal wire-taps were conducted in the country. There is no reporting on how many warrant-less wiretaps police have conducted on their own.

This is not to say that the use of emergency, warrant-less wire-taps hasn’t produced happy outcomes. It has. By listening in on a band of key suspects in the kidnapping of Graham McMynn in British Columbia, Vancouver police gathered enough intelligence to rescue the young man eight days after his kidnapping back in 2006. On the other hand, the OPP’s decision to eavesdrop on the communications of Shawn Brant, a Mohawk protester from the Tyendinaga First Nation in 2007 was neither legal nor justified in the opinion of legal scholars. There was simply no evidence that Brant had threatened anyone with violence. 

Interestingly, the British Columbia Supreme Court struck down Section 184.4 as unconstitutional in 2008, citing the fact that its secrecy provisions violated Section 8 of the Canadian Charter of Rights and Freedoms. That section gives every Canadian constitutionally enforced privacy rights against the unreasonable intrusion of the state. It is difficult to see how the new legislation would be any more successful at withstanding a Charter case. But perhaps the strongest argument for not giving police extended powers of warrant-less wire-tapping is what they have occasionally done with wiretaps undertaken with proper authority from a judge.

In 2010, a major drug investigation into an alleged cocaine operation in Ontario called Project Omax was thrown out of court after defense lawyers caught a senior RCMP investigator hiding evidence that the Force was not complying with court orders. Sgt. John Roskam, who was in charge of the RCMP’s wire-tap unit in Ontario, wrote a fake memo designed to conceal the fact that at times no one was “live-monitoring” the legal wire-tap. Live monitoring is required in the event a non-target of the investigation comes on the line, at which time the RCMP monitor is legally obliged to hang up.

Was the Roskam example an aberration? Apparently not. The RCMP suspected that they may have had the same problem in 30 other cases.

This debate is not a matter of standing with the government or the child pornographers, as Canada’s Public Safety minister Vic Toews disgracefully suggested to his fellow parliamentarians. If it was, then all of Canada’s privacy commissioners would be standing with the child pornographers, as the NDP’s Charlie Angus pointed out.

It is about protecting the constitutional rights of Canadians and ascribing limits to the power of people in too much of a hurry to do things democratically or legally. The G-8 Legacy fiasco was the result of a government that said it didn’t have time to bring in new legislation to properly spend $50 million that somehow ended up in Tony Clement’s cottage country riding. 

The government now wants to “streamline” the environmental assessment period for the Northern Gateway Pipeline because the old review system takes too long. And now it is about to pass sweeping new police powers for surveillance of the internet because there isn’t time to seek a warrant to follow due process. Beware of politicians in a hurry.

As for me, I believe the police will find the guy who sent me that unwanted Christmas missive without having to bypass a judge or abridge the rights of other Canadians.

And one other thing: Vic, I think child pornographers belong in hell.

Original Article
Source: iPolitics 
Author: Michael Harris 

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