EDITORIAL: Thought that text message was private? New federal legislation could hamper online privacy

Andrew Zwicker
By Andrew Zwicker
November 3rd, 2010

Just how private should our communications be in this country? While it’s not touted as often in Canada as in the United States, we do live in a supposedly free country. At the end of a decade in which freedoms and privacy have been under attack, it seems, as much as terrorism (particularly In the United States with the introduction of the Patriot Act and Homeland Security divisions) governments and policing agencies have direct access into our private lives. In the name of national security we’ve seen rights to private information and communication slashed.

  While there are likely few people today who still believe they can truly exist anonymously on the web, a string of recent events have drilled that point home and made clear some of the rules of the road when it comes to anonymity, slander and “private” communication online.   In Halifax recently, a lawsuit was brought forward by a group of firemen who felt they had been victims of slander in an online newspaper commenting section via several anonymous posts. Seeking a court ruling that would force the online newspaper The Coast to deliver the identities of the anonymous posters (as well as their entire online history on the site to the court) the newspaper agreed fully.     After the newspaper agreed to give up the anonymous commenter, the court ruled that newspapers are not responsible for slanderous posts. A similar case in New Brunswick this past summer yielded the same result. It would seem now that the precedent has been set in Canada that people commenting to news stories online are not truly anonymous.   That is one aspect of online privacy, and I suspect most would agree that if you are actively posting comments in a public forum you should be held accountable for your own words if they cross a legal line.   What about when you’re not posting in a public forum, however? What if you’re sending personal messages, let’s say from your blackberry to your friends blackberry via BBM, instant message, SMS or what have you? In that case, should you be able to expect that there is no Big Brother out there watching your every mouse click? It would be reasonable to expect in most cases that government agencies would not be allowed, without our knowledge, to intercept those communications.   I think most would agree that in the case of criminal activity and if there was suspicions that warranted such actions, that we would be okay with police acquiring warrants to view such personal online messaging.   Where is the line, however, between getting a warrant for this activity based on real suspicions and simply negating everyone’s privacy for fears that there could be criminal activity going on or being facilitated through “private” online communication? At what point can you say it’s in the interest of public safety that police have unfettered access to our private online communication?   This week the federal Conservative party reintroduced legislation that died on the floor last year to “modernize Canada’s legal framework and ensure that all communications between suspected criminals can eventually be intercepted by police,” according to a Conservative Party media release.   The legislation, titled the “Investigating and Preventing Criminal Electronic Communications Act” is said to be aimed at “safe havens” technology that could potentially allow criminal activities to take place in online situations that are currently invisible to police.   If adopted, according to the president of the Canadian Association of Chiefs of Police, this act would give offices access to communications such as encrypted Blackberry PIN messages.   However, after Prime Minister Steven Harper commented that “it’s time to modernize Canada’s legal framework and ensure that all communications between suspected criminals can eventually be intercepted by police,” one has to wonder what it takes to consider someone a suspected criminal, how much this act would be used, and just how ethical it is to allow access to police to intercept personal online messages if there is suspected criminal behaviour.   We all know–or should know–that there is no such thing as privacy or anonymity on the web, but how far is too far when the government and police begin gaining unfettered access to our supposedly private communications? These days, it would seem that if you want to truly stay away from prying eyes perhaps it’s best to ditch your Blackberry or your iPhone and attach a piece of string between two cans.   Who knows though? At the rate we’re going, there could be a new bylaw just around the corner allowing police to tap into our tin can phone lines too.

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