Mr. Speaker, I will be splitting my time with the member for Vernon—Lake Country—Monashee.
To the viewers at home, the Liberals are coming to regulate the Internet.
This is a very serious moment. The Liberals have introduced a piece of legislation that looks to police activity on the Internet and prosecute crime using the Internet. Obviously, this is going to give rise to a lot of questions about privacy, law and execution. I propose to have a professional discussion about how the Liberals are going to police the Internet while preserving basic charter rights, because we all agree that we must preserve charter rights.
Conservatives support giving law enforcement the tools they need to combat crime and keep communities safe, particularly as threats become more sophisticated in the digital age. At the same time, these powers must be accompanied by strong safeguards, clear limits and independent oversight to protect Canadians' rights and freedoms. Conservatives will always continue to stand for individual freedom, privacy and safety.
Let us begin by talking about some laws. The Liberals want to know if Jane Doe is a customer of Telus. They want law enforcement to have the right to call up an Internet service provider and simply ask if Jane Smith is its customer, without a warrant. I must say that I do not object to that. It is probably public information, and in the interest of security, providers could probably move their privacy policy in a direction where that would be allowable.
I see that my friend from Winnipeg North agrees. I am happy.
I would like to put another proposition to him. Telus or Rogers knows that Jane Smith is a customer, and the police want to seize additional records on Jane Smith, some basic information such as IP address, location, etc. Now we are talking about personal information contained within the records of the company. Like my friend from Winnipeg North says, they are going to go see a judge, hallelujah.
The problem is that, to obtain a warrant, typically a police officer would have to swear to a reasonable belief that criminal activity may have occurred. “Reasonable belief” is an important technical term because it commits the police officer to an affidavit, to a subjective belief that he must swear to. However, in this bill, the Liberals are proposing to lower that threshold to reasonable suspicion.
If a police officer says that they reasonably suspect a crime has occurred, then that would be enough to satisfy the conditions of the warrant and disclose Jane Smith's additional information. We will think about this at committee, and I will want to hear some testimony, but I am not sure that it is prudent to be lowering the threshold of search and seizure, so this is a very problematic provision.
Second, the Liberals are asking Internet service providers to co-operate with them in creating various systems that will help them prosecute crime and find offenders. I do not disagree that that is a noble and necessary goal. They are asking Internet service providers to create systems for the retention of data, back doors where the government would be able to enter encrypted communications and other means to help law enforcement. What is important is that those companies would not be asked by virtue of a court warrant, because a crime has been committed, to say that they now need to create a system.
It would be done by a ministerial order, signed off by the commissioner of intelligence pre-emptively. In other words, while we would not be alleging that any crime has been committed, the minister would now come to the private sector and say that they want it to create a system.
That is fine, but even if that were to happen, the problem is the definition of an electronic service provider, because this order may be very wide. According to the legislation, an electronic service provider “means a person that, individually or as part of a group, provides an electronic service, including for the purpose of enabling communications, and that...provides the service to persons in Canada [and] carries on...its business...in Canada.”
If it is Telus, Sprint and Rogers, I understand, but I say to my friend from Winnipeg and to my friend from Mount Royal, who just spoke to this, that I would like to understand very clearly whether this could this also apply to a law firm. Could it apply to an accounting firm? Could it apply to an educational institution? All these folks meet the definition of an electronic service provider as presently articulated by the legislation.
That is a concern on my part. I ask that we study it very carefully at committee. I am sure that even members on the other side of the aisle who lean to the left agree that we have to set some reasonable limits, that we cannot be coming to a law firm and saying that a minister, without a court order, would secretly order them to create a retention system and a back door to look at their clients, with no court order, no judge and no right of appeal. Please, let us be very careful with this.
That brings me to the final point on what is difficult about the bill, and that is the fact that the public safety minister would order the retention of metadata, of all the data, essentially, that goes through an electronic service provider's infrastructure, and they would be mandated to keep it for 365 days. That engages an interesting question about section 8, on arbitrary search and seizure, because the Internet service provider would be ordered by the minister, not by the court, to keep all our data for 365 days, without a warrant. A person may not have committed any offence, but the minister would want the Internet service provider to keep the data in the event that they have committed an offence. That is not how our legal system works.
People will say that it would not be the government seizing the data. That does not matter. If the government were to order another institution, in this case an Internet service provider, to seize it, that Internet service provider would become an agent of the government. The effect is the same, which is a breach of section 8 in that it would be an arbitrary seizure. We need to think about this very carefully. I think I have made a prima facie case that this would violate the charter.
It is important to distinguish this from Snowden. I want to talk about Snowden a little bit. He blew the lid off this in 2013 and said that the government was collecting all sorts of metadata. It was collecting all of it. In order to collect that metadata, one had to go to the FISA court. Even though there are some questions about the FISA court and its efficacy, there was still a court. According to the bill, there would be no court. We would just seize it all.
In fairness to my friends the Liberals, the government would not be able to see the information seized without a court order, without a warrant. The Internet service provider would hold on to all this stuff. If the government wants it, it would get a court order. Nonetheless, the seizure would still happen.
That brings me to my last point: security. It is very clear. According to The Globe and Mail, we are not prepared. We do not have the systems in place to order this sort of metadata catch-all and to create back doors. The article says, “experts are warning that the lawful access regime could allow hackers to exploit architecture inserted into electronic systems”. That is exactly what happened to the United States. The Salt Typhoon hackers out of China, who allegedly have been working for the Chinese state, exploited lawful intercept infrastructure that the U.S. telecoms were required by law to build. They were actually able to breach the White House. Their systems are considerably more advanced than Canadian systems.
We understand the need for lawful access, but we need to make sure we draw the appropriate lines and safeguard civil liberties. The government has a problem with civil liberties.