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Can Conservatives resurrect the Internet surveillance bill?

Justice Minister Rob Nicholson announced new measures Monday to get even tougher on crime. But the Conservatives appear to have given up entirely on getting tough on crime over the Internet.

Valentine's Day marks the one-year anniversary of Bill C-30, the so-called Internet surveillance legislation. This is the bill that caused Public Safety Minister Vic Toews to infamously declare that critics "can either stand with us or with the child pornographers."

Since then, "we haven't heard a peep," said Chantal Bernier, the federal assistant privacy commissioner.

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It wasn't simply the Public Safety Minister's poor choice of words. Many analysts believe that the bill violates federal privacy laws and the Charter of Rights and Freedoms, by giving police and federal authorities the power to compel Internet service providers to hand over information about individual subscribers without a warrant.

The bill was to be sent to a parliamentary committee for study, but that hasn't happened, leading many to suspect the government will let it die quietly whenever Prime Minister Stephen Harper has Parliament prorogued.

That's the fate Michael Geist predicts. The Canada Research Chair in Internet and E-Commerce at the University of Ottawa hears rumbles that the Tories may split the bill, sending the less controversial parts forward – including requiring Internet service providers to save information on what their users are doing – while stripping out the warrantless search provisions.

But he said in an interview that he suspects Mr. Toews "is so damaged on this particular file that it's hard to see how they're going to, not just resuscitate the bill, but resuscitate him as the salesperson for this thing."

Julie Carmichael, spokeswoman for Mr. Toews, said in an e-mail that his schedule did not permit an interview.

But "our Government is thoroughly reviewing this legislation," she said. "At all times we will strike an appropriate balance between protecting privacy and giving police the tools they need to do their job."

Meanwhile, the folks at the Office of the Privacy Commissioner of Canada are examining how the bill might be improved, if and when the government asks for their advice.

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The commission had Karim Benyekhlef, a professor of law at Université de Montreal who specializes in privacy issues, examine C-30. He proposed a way to secure judicial approval for a search that didn't impose unreasonable delays on law-enforcement officials attempting to track a cyber crime.

The commission is also researching what can actually be done with the information that the bill would allow authorities to acquire. That study should be completed, and will be publicly released, in a few weeks.

Ontario Privacy Commissioner Ann Couvukian was an early and vocal opponent of the bill, though she defers to her federal colleagues in how it should be amended.

But she added this caveat in an interview: If the Conservatives are mulling the possibility of compelling Internet service providers to save data on their customers, even without moving forward on permitting warrantless requests for information, "you're creating a huge database that will attract law enforcement to go fishing in it." Any such database, she believes "must be accompanied by controls on the manner in which law enforcement is permitted to access this new pot of gold that's been created."

One of the candidates for the Liberal leadership, George Takach, has made digital privacy rights the centrepiece of his campaign. Mr. Takach, a lawyer who specializes in information technology, would legislate a Digital Bill of Rights that would ensure all Canadians are "free from surveillance not authorized by a court of law."

Bill C-30 "is completely unprecedented," he said in an interview. "...It is very high on my agenda that we not have warrantless searches."

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And we won't, it would appear, unless and until the Conservatives can craft a bill that would survive a Charter challenge and allay the fears of Canadians who don't want the government looking over their shoulder while they troll the Net.

Who will deliver and defend that bill we may not know until after the next cabinet shuffle.

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About the Author
Writer-at-large

John Ibbitson started at The Globe in 1999 and has been Queen's Park columnist and Ottawa political affairs correspondent.Most recently, he was a correspondent and columnist in Washington, where he wrote Open and Shut: Why America has Barack Obama and Canada has Stephen Harper. He returned to Ottawa as bureau chief in 2009. More

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