We get upset when governments outside of North America insist on being able to monitor internet based communications.   But we shouldn’t get too smug about it, as the same thing happens in North America.  See these posts that talk about a new attempt to legislate backdoor internet access in the US, why its a problem, and links to other commentary.  CircleID       Techdirt

The three strikes concept just won’t go away either.  Basically it allows or requires sites or internet access to be shut down based on unproven allegations they are used for infringement.  A new proposed US bill would do that.  See the CircleID link above for their take on that.

Mike Masnick of Techdirt puts that bill in perspective by saying that the same logic used by the proponents of the bill would have in the past banned Hollywood itself, the recording industry, radio, the DVR, and other ubiquitous things.

UPDATE: Also see the EFF take on the backdoor bill.

That’s the title of my Slaw post for today.  It reads as follows.

There has been a lot of press over the latest countries that don’t want Blackberries in their country unless they can get access to monitor user communications.  See, for example, the Washington Post, Techdirt, Engadget.

RIM designed Blackberry communications so they would be secure, in a way that RIM itself can’t even access them.  That’s a great feature that makes privacy advocates, corporate users, and individual users very happy. 

But it also makes some governments very unhappy – particularly those who believe they need to spy on communications.   Some to the extent that they threaten to ban use in their countries unless they get the access they want.   Those countries feel the need to monitor for illegal activity, or for anti-government sentiment that we in North America would consider basic free speech.   And the threat to ban irks governments like the US, because it affects US government officials and users that travel to those countries, and offends their views of free speech and individual empowerment.  The attitude of most of us in North America is that those governments should just lighten up and stop trying to suppress or control the thoughts and activities of people.

But we can’t forget that this is all a matter of degree.   US and Canada ”lawful access” advocates want ways for law enforcement to access electronic communications to fight criminals and terrorists, and have similar concerns about encryption that modern communications technology provides.  Law enforcement has always been able to do things like wiretaps with judicial oversight that requires some standard of reasonable cause before it happens.  (Although one is often suspicious about what wholesale monitoring is done at the national security level of things.)

We need to think these things through very carefully in terms of what access is truly needed and effective to fight crime, and what is merely security theatre.  Also what kind of rules, oversight, checks, and balances must go along with law enforcement access in order to balance that against rights to privacy and confidentiality.

Michael reports that a new “lawful access” bill is about to be introduced that is intended to give authorities easier access to private communications.  Also see Cory Doctorow’s take on it .  The privacy commissioner and CAIP (Canadian Association of Internet Providers) are not enamoured of the idea either.  

At the same time, the EFF reports about a New York times article about the “National Security Agency’s systemic and significant “overcollection” — that is, illegal interception — of Americans’ domestic communications”.

Perhaps requiring a warrant for the interception of communications is not such a bad thing?

Further to yesterday’s post about lawful access policy input (or lack thereof), here are 2 examples of why this kind of thing makes us skeptical about the need and concerned about the dangerous privacy implications.

First, there are reports that the US Director of National Intelligence recently testified that its warrantless evesdropping prevented a recent terrorist plot. Turns out it had nothing to do with it.

Read a Boing Boing report about that

Second, Outlaw.com reports on a judicial suggestion in the UK to put the entire population into a DNA database.

Read the Outlaw.com article

Michael and David are all over this – but its an important enough issue that I want to mention it as well. Public Safety Canada and Industry Canada have begun a consultation on how law enforcement and national security agencies can gain lawful access to customers’ information. In other words, they want to make is easier for law enforcement to get our phone and Internet records without court orders.

While we should not impede what is necessary to fight crime, carte blanch access to our personal info makes it far too intrusive from a privacy perspective. Michael points out that until this consultation process became publicly known, it was just going to be with a few selected participants. Not a great way to instill public confidence in either the consultation process or the overall fairness of the result.

This issue never really goes away – see “lawful access” in my tag cloud for earlier posts.

Read Michael Geist’s original and second comment

Read David Fraser’s comment

UPDATE: David has posted a good article detailing the background behind this issue

Techdirt has a post entitled Can We Please Have Politicians Understand The Internet Before They Regulate It? that talks about the proposed Canadian private members bill intended to rid the Net of offending stuff. It uses the kill a fly with a sledgehammer approach.

Techdirt pulls no punches, saying that it is: a bizarre bit of proposed legislation that is typical of other “protect the children!” laws that politicians love to propose without actually understanding what they’re talking about. This one is pretty ridiculous…

Michael Geist mentioned it as well. He prefaced some details with: The bill itself includes (and I am not making this up):

Its kind of scary to see this kind of bill being seriously proposed. At least its a private members bill, which rarely go anywhere. I sometimes wonder if these types of proposals are serious – or whether they are intended to anchor our expectations so when the real thing arrives it doesn’t look as outrageous.

Read the Techdirt comments

Read Michael’s post

Does anyone else see the the irony in this?

The press is all over Hewlett Packard for its pretexting phone record collection (rightly so), and it seems that criminal charges may be laid.

At the same time, the US and Canadian governments are trying to pass “lawful access” legislation that gives them more power to snoop around our communications without warrants or judicial oversight.

So its evil if a corporation spies on its board members and others, to the extent that the government may lay criminal charges – but its OK for the government to spy on its citizens at will?

Read a Silicon Valley.com article about the Hewlett Packard snooping

Read a Techdirt post about the Hewlett Packard scandal

Read a Wired News article about the US National Security Surveillance Act

Read an Ottawa Business Journal article about the proposed Canadian lawful access legislation

We are expecting 2 pieces of federal legislation soon dealing with copyright reform and lawful access. Both will be controversial.

David Fraser has a good comment on the role that private sector service providers should play in the balance between privacy and security – and its not to act as police.

Michael Geist continues with his 30 days of DRM series that deals with copyright reform issues, particularly, what the legislation might say about protecting DRM. He also has a good comment on the questionable thinking contained in an education ministers proposal.

My position on DRM is that is causes more problems than it solves, and defeating it should not be outlawed. Michael has focussed on all the exeptions that shouod be allowed to any provision outlawing defeating DRM. It just reinforces to me that this is getting way too complicated. Far simpler, easier, more certain, and balanced to forget any notion of outlawing tools to defeat DRM, and to expand the definition of fair dealing.

Read David’s comment on service provider roles

Read Michael’s comment on the education minister proposal

The recent Bell Sympatico user agreement change that says they can monitor communications and pass on to the government continues to attract attention. It has focused attention on upcoming “lawful access” legislation that is expected to increase government spying powers on the Internet.

Both Michael Geist and David Fraser point to a You Tube video called “Emily of the State” that has a parody of an avatar following your every move. Its worth a look.

Add to that stories about a Hong Kong government initiative to enlist Boy Scouts to troll the Net for copyright violations and report it to the government. Truly strange.

Look at the video

Read a NY Times article about the Hong Kong issue

See Michael’s post

See David’s post

Bill C-74, the Modernization of Investigative Techniques Act has been introduced by the Canadian Government.

The intention is to give law enforcement easier access to modern means of communication.

Critics are concerned for several reasons, including the costs ISP will need to spend to accomodate this, the lack of judicial pre-authorization, and privacy in general.

Perhaps the good news is that there is a good chance that this bill, and the controversial bill C-60 copyright bill, won’t get passed before the election that seems to be looming.

Michael Geist has a post with links to the government’s view, and his criticism of the bill.

Read Michael Geist’s comments

Read a timeline and series of articles on itbusiness.ca