The Conservative Party of Canada has, ever since 2006, made several attempts to introduce new legislation geared towards increasing police powers in areas related to surveillance and evidence gathering for matters involving the internet and other similar technological networks. These attempts, however, have never caused such an uproar among citizens all across the country as bill C-30, titled “INVESTIGATING AND PREVENTING CRIMINAL ELECTRONIC COMMUNICATIONS ACT”, did in February of this year. Most of the credit for waking up the country can be given to Minister of Public Safety Vic Toews, but it is not his gaffe that is the most concerning – it is the continued insistence that society needs to give up its freedoms in order to solve a problem that in some ways doesn’t even exist.
The stated goal of the Conservative Party is a laudable one; most reasonable people could be convinced to agree that there are issues with the current state of affairs whereby police officers have trouble getting timely access to critical evidence required to either stop a suspected crime, or to catch somebody who already committed a crime by using technology. Supporters of this bill would be hard pressed, however, to convince these same people that they should give up their charter right to personal privacy so the government can snoop on them just to catch a few wrongdoers. “Big Brother” imagery comes up frequently when these laws are proposed. The bill, however, is in a state of limbo and may very well effectively be dead; but this is not the last we will see of such attempts to erode the public’s privacy. Laws are being introduced, and some even being passed, all around the world.
To analyze a Government’s act of instituting such a law, I will use Act Utilitarianism; an ethical theory which attempts to measure the net gain in happiness, or “utility” as a consequence of an action. The Principle of Utility states that “An action is right (or wrong) to the extent that it increases (or decreases) the total happiness of the affected parties.” (Quinn, 80) And since C-30 has not been passed, I will use analogous laws from other jurisdictions that have actually been passed. The law most analogous to C-30 right now is the US’s “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” (or Patriot) Act. Speedily enacted in October of 2001 after the terrorist attacks in New York, it received virtually no of being called un-patriotic and pro-terrorism. The stated goal of this law is not far from the one of C-30: It is designed to give police more powers so that they can properly stop terrorism from affecting US interests.
The moral question is “Would it be a good action for government lawmakers – with the intent of stopping the most heinous crimes – to take away the civil liberties of an entire population in order to facilitate the prevention of such crimes?” Framed in this way, most people would likely say no. But more often than not, this question is worded in such a way to invoke an emotional response in those reading it so that they’ll be coerced into saying yes due to the inclusion of “terrorism” and “child abuse” as explicit targets of the law. Nobody wants to be seen as soft on terrorism and child abuse, so people uneducated in the constitutional implications of creating these laws often support them in the name of the “greater good” without realizing the vast negative effects they have on law abiding citizens. This is what the Government of Canada was banking on when they titled their bill “Protecting Children from Internet Predators Act.”(Emphasis mine)
In order to answer this question, we need to look at the state of affairs before and after the laws are proposed or enacted.
The government of Canada, when trying to drum up support for C-30, claimed that Law Enforcement officials were running into barriers when trying to catch criminals or stop crimes where they need access to internet subscriber data. They say that there’s too much bureaucracy involved in obtaining the warrants they need, and as a result, the criminals often get away with their crime, or the crime that the police want to prevent often happens anyhow because they couldn’t get a warrant fast enough. They proposed to solve this problem by almost completely doing away with the requirement to obtain a warrant under certain circumstances, and by compelling internet service providers to comply with these law enforcement requests. Many professionals in this field, including Michael Geist, feel that these claims are unfounded at best.
Consider the biggest privacy concern with Bill C-30: the mandatory disclosure of subscriber information without court oversight. With ISPs and telecom companies complying with law enforcement requests roughly 95 percent of the time, at issue are a relatively small number of cases that to date have required warrants prior to any disclosure. I still think law enforcement has failed to produce a compelling series of examples where the current law has proven problematic. Further, it is not clear whether law enforcement was able to obtain the sought-after information through a warrant in the remaining five percent of cases, though anecdotal evidence suggests they typically were. Regardless, law enforcement wants greater assurances that the information will be available expeditiously in appropriate circumstances. (Geist, http://www.michaelgeist.ca/content/view/6324/125/)
A local source goes on to add the following:
But I think, just the broad power of access. I think that was the main problem. It didn’t even need to be a police officer anymore. Now it was a peace officer, which is a much bigger group of people. So, people who weren’t even police officers could somehow get a warrantless search, or get access, or require retention of data; which comes back to very basic principles of democracy and charter protection of rights that I think most people felt were being infringed. Like, OK. If someone wants to connect my ISP to my location, to say “this is where this person is accessing the internet from” because we think there’s a crime being committed, or someone is doing something illegal online, I think I should have the same right as I do when they haul me over in my car. So it needs to be a reasonable expectation that something has happened, or something is about to happen. But they’ve broadened it in a lot of cases to reasonable suspicion, which most people feel is not enough, that that could very easily be abused by peace officers and police officers in cases where they’re either really focused on a potential suspect that they may not have any good evidence, that they may not have enough to get a warrant; well, now we don’t need a warrant, and we can deal with the consequences later.
These professionals feel that the proposed solution goes far beyond what’s required to solve the problem.
Taking a look, now, at the aftereffects of passing a law such as this, let me direct your attention to the USA’s Patriot Act: Here we have a law that was created to obstruct terrorism by, again, giving law enforcement much more powers than constitutionally given to them because of the (more often than not) perceived threat of terrorism. The American Civil Liberties Union (ACLU) summarizes the biggest problem with this new law:
Section 215 allows the FBI to order any person or entity to turn over “any tangible things,” so long as the FBI “specif[ies]” that the order is “for an authorized investigation . . . to protect against international terrorism or clandestine intelligence activities. (ACLU, http://www.aclu.org/free-speech-national-security-technology-and-liberty/reform-patriot-act-section-215)
The problem is that the new law created – among many things – a secret court for granting search and seizure warrants. This process is often nicknamed a “215 order” because these new powers are outlined in section 215 of the bill. Under this section, the government doesn’t need to show probable cause, nor reasonable grounds to believe that their target is engaged in criminal activity. And the worst part of this provision it is the fact that once the order is served, the recipient is prohibited by law from ever disclosing to anybody that they even received the order, thus preventing the target from knowing that their privacy has been infringed upon, and from using this fact to mount a defense against the allegations made against them. Canadian law has some parallels to this law in PIPEDA, but C-30 tries to amend this by adding more cases where service providers are not allowed to divulge handing over data to law enforcement.
Another consequence of endorsing the mindset that civil liberties are less important than public safety has led to the current issue at hand in the US with regards to warrantless wiretapping by the NSA.
News reports in December 2005 first revealed that the National Security Agency (NSA) has been intercepting Americans’ phone calls and Internet communications. Those news reports plus a USA Today story in May 2006 and the statements of several members of Congress revealed that the NSA is also receiving wholesale copies of their telephone and other communications records. All of these surveillance activities are in violation of the privacy safeguards established by Congress and the U.S. Constitution.
The evidence also shows that the government did not act alone. EFF has obtained whistleblower evidence [PDF] from former AT&T technician Mark Klein showing that AT&T is cooperating with the illegal surveillance. The undisputed documents show that AT&T installed a fiberoptic splitter at its facility at 611 Folsom Street in San Francisco that makes copies of all emails web browsing and other Internet traffic to and from AT&T customers and provides those copies to the NSA. This copying includes both domestic and international Internet activities of AT&T customers. As one expert observed “this isn’t a wiretap it’s a country-tap.” (EFF, https://www.eff.org/nsa-spying)
This act has quite reasonably disgusted many people and has provoked a lawsuit from the EFF. Sadly, however, the Obama administration has granted AT&T immunity over this debacle, shutting down most avenues of appeal.
Following the 9/11 terrorist attacks, was the formation of the Department of Homeland Security (DHS) and the Transportation Security Administration (TSA). Both of these agencies are actively involved in denying and infringing upon basic constitutional rights in the name of preventing terrorism. DHS is, among many things, conducting warrantless searches of travelers’ laptops at the borders. The EFF is actively fighting against this breach of the US 4th amendment to the constitution, but in the interim, they have provided a few good tips on what to do if you’re entering the US with electronic devices.
The Ninth Circuit’s recent ruling (pdf) in United States v. Arnold allows border patrol agents to search your laptop or other digital device without limitation when you are entering the country. EFF and many civil liberties, travelers’ rights, immigration advocacy and professional organizations are concerned that unfettered laptop searches endanger trade secrets, attorney-client communications, and other private information. (EFF, https://www.eff.org/deeplinks/2008/05/protecting-yourself-suspicionless-searches-while-t)
The major common-sense argument against these practices (despite the government’s insistence that they’re necessary to stop the importation of things such as child pornography and copyright-infringing material) is that anybody wanting to import such material would be much better off just sending it over the internet where no intrusive border searches take place.
The TSA, on the other hand, is suffering from a much larger controversy – the use of at least 700 full body imaging scanners in 190 airports. This act has been dubbed “security theatre” by many people in the legal profession and the press as it is a huge invasion on travelers’ privacy while producing no results of attempted terrorist attacks. This has produced a large public outcry due to its very visible effect on travelling every day.
The Transportation Security Administration is feeling public heat these days over its combination of whole-body-image scanners and heavy-handed pat-down searches, and deservedly so. (EFF, https://www.eff.org/deeplinks/2010/11/common-sense-and-security-body-scanners)
Many travelers have staged very public protests against the TSA by slowing airport security to a crawl through mass refusals to enter the body scanners, thereby forcing a lengthy, and often publicly viewable, pat-down.
While it’s clear that there are definite cases where law enforcement needs greater tools at their disposal to solve crimes, and to prevent especially bad ones from even happening – what’s also clear is that there are far too many cases of such measures going way too far. In researching this subject, I asked a local privacy lawyer what changes could be made to C-30 in order to preemptively put a stop to some of the sweeping problems as seen in the US today:
Narrowing the authorization. So that, instead of it being by a larger group of people in a larger group of circumstances, making that much more strictly controlled. So as part of the CBA preparations to make submissions on the bill, one of the talks about was saying – OK, it could be a smaller class of things, so exceptional circumstances. Dealing with exceptional circumstances very narrowly, and saying “Yup. There are some instances where… I don’t know, I think the example that most people used was ‘you intercepted some sort of online communication to indicate that there was a child in danger. So whether the child was being abused, or kidnapped, or whatever. You need to act quickly, and that’s totally reasonable. So there can no one against kind of figuring out where that’s going on now. But, in doing that, to again narrow it to only police – and not all peace officers – to narrow it to the minimum amount of information necessary, so they don’t have a right to everything – just the one piece of information they might need to get better evidence and find that out, and to again have that go before a judge as quickly as possible. So if you need to do that right away, then you’ve still only got a day or two days or whatever, to get before a judge and still make sure that there’s someone making a ruling that what you were doing is proper. So – very exceptional circumstances, narrow group of people, quick amount of oversight.
So, in summary, child abuse and terrorism is bad. Nobody in their right mind will try to deny that. But we must ask ourselves if it is morally right to institute a law that forces everybody to forfeit their constitutional rights and freedoms for the “greater good”. In evaluating the ethics of the action, let’s look at the effects:
- Some might argue that as a result of the Patriot Act, and through the efforts of DHS and the TSA, it has become more difficult to commit terrorist acts on American soil. But there isn’t much (if any) evidence of the system actually working.
- A massive amount of inconvenience caused by the law, added to the fact that nearly no positive results have been produced to show its worth
- Many professionals and other intellectual people have demonstrated that many of the attempts by government to prevent terrorist acts are futile at best, and stupid at worst.
Take for example a debate between security expert Bruce Schneier and the former TSA boss Kip Hawley. Bruce summarizes the very real cost of the TSA’s security theater:
Kip Hawley doesn’t argue with the specifics of my criticisms, but instead provides anecdotes and asks us to trust that airport security—and the Transportation Security Administration (TSA) in particular—knows what it’s doing.
He wants us to trust that a 400-ml bottle of liquid is dangerous, but transferring it to four 100-ml bottles magically makes it safe. He wants us to trust that the butter knives given to first-class passengers are nevertheless too dangerous to be taken through a security checkpoint. He wants us to trust the no-fly list: 21,000 people so dangerous they’re not allowed to fly, yet so innocent they can’t be arrested. He wants us to trust that the deployment of expensive full-body scanners has nothing to do with the fact that the former secretary of homeland security, Michael Chertoff, lobbies for one of the companies that makes them. He wants us to trust that there’s a reason to confiscate a cupcake (Las Vegas), a 3-inch plastic toy gun (London Gatwick), a purse with an embroidered gun on it (Norfolk, VA), a T-shirt with a picture of a gun on it (London Heathrow) and a plastic lightsaber that’s really a flashlight with a long cone on top (Dallas/Fort Worth).
At this point, we don’t trust America’s TSA, Britain’s Department for Transport, or airport security in general. We don’t believe they’re acting in the best interests of passengers. We suspect their actions are the result of politicians and government appointees making decisions based on their concerns about the security of their own careers if they don’t act tough on terror, and capitulating to public demands that “something must be done”.
In 2004, the average extra waiting time due to TSA procedures was 19.5 minutes per person. That’s a total economic loss—in –America—of $10 billion per year, more than the TSA’s entire budget. The increased automobile deaths due to people deciding to drive instead of fly is 500 per year. Both of these numbers are for America only, and by themselves demonstrate that post-9/11 airport security has done more harm than good.
The current TSA measures create an even greater harm: loss of liberty. Airports are effectively rights-free zones. Security officers have enormous power over you as a passenger. You have limited rights to refuse a search. Your possessions can be confiscated. You cannot make jokes, or wear clothing, that airport security does not approve of. You cannot travel anonymously. (Remember when we would mock Soviet-style “show me your papers” societies? That we’ve become inured to the very practice is a harm.) And if you’re on a certain secret list, you cannot fly, and you enter a Kafkaesque world where you cannot face your accuser, protest your innocence, clear your name, or even get confirmation from the government that someone, somewhere, has judged you guilty. These police powers would be illegal anywhere but in an airport, and we are all harmed—individually and collectively—by their existence.
Based on the observations of the effects of the US’s Patriot Act, I have to conclude that under the theory of Act Utilitarianism, the introduction of such a law is immoral.