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Pleading the Case: How the RCMP Fails to Justify Calls for New Investigatory Powers

The powers that the government is proposing in its national security consultation — that all communications made by all Canadians be retained regardless of guilt, that all communications be accessible to state agencies on the basis that any Canadian could potentially commit a crime, that security of communications infrastructure should be secondary to government access to communications — are deeply disproportionate to the challenges government agencies are facing. The cases chosen by authorities to be selectively revealed to journalists do not reveal a crisis of policing but that authorities continue to face the ever-present challenges of how to prioritize cases, how to assign resources, and how to pursue investigations to conclusion. Authorities have never had a perfect view into the private lives of citizens and that is likely to continue to be the case, but they presently have a far better view into the lives of most citizens, using existing powers, than ever before in history.

The powers discussed in its consultation, and that the RCMP has implicitly argued for by revealing these cases, presume that all communications in Canada ought to be accessible to government agencies upon their demand. Implementing the powers outlined in the national security consultation would require private businesses to assume significant costs in order to intercept and retain any Canadian’s communications. And such powers would threaten the security of all Canadians — by introducing backdoors into Canada’s communications ecosystem — in order to potentially collect evidence pursuant to a small number of cases, while simultaneously exposing all Canadians to the prospect of criminals or foreign governments exploiting the backdoors the RCMP is implicitly calling for.

While the government routinely frames lawful interception, mandated decryption, and other investigatory powers as principally a ‘privacy-vs-security’ debate, the debate can be framed as one of ‘security-or-less-security’. Do Canadians want to endanger their daily communications and become less secure in their routine activities so that the RCMP and our security services can better intercept data they cannot read, or retain information they cannot process? Or do Canadians want the strongest security possible so that their businesses, personal relationships, religious observations, and other aspects of their daily life are kept safe from third-persons who want to capture and exploit their sensitive and oftentimes confidential information? Do we want to be more safe from cybercriminals, or more likely to be victimized by them by providing powers to government agencies?