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Winning against the “lawful access” bills: Two strategic intuitions

Débats - DebatesAre there actions we could start today in a decisive campaign against the adoption of so called “lawful access” bills by Canada? I came to answer “yes” while listening to a presentation by Antoine Beaupré, system administrator at Koumbit. It was during a public meeting entitled ” ‘Illegal access’ and the attack of internet freedoms”, on February 3, 2012, in Montreal.

Let’s remind us that the “lawful access” bills that already died three times because of dissolution of Parliament have not been tabled again yet. However, it is expected that the Harper government will go ahead. The latest versions of the legislation gave the police new powers to access data held by Internet services providers (ISPs). They allowed the mandatory disclosure of customer information without judicial oversight, as well as real-time monitoring across ISPs’ networks. All measures deemed unnecessary and dangerous, not only by civil libertarians, but by many police forces also. A detailed legal analysis was published recently by the British Columbia Civil Liberties Association.

The meeting was organized by Koumbit an IT workers coop that offers several services including web hosting: thus, it has already had its share of searches for information and of servers. Like many other businesses it that field, Koumbit fears the effects of the “lawful access” initiatives on the civil liberties of its customers and of all the citizens who use the Internet from anywhere in the world. Indeed, the opening presentation of Antoine Beaupré dealt with less the legal aspects of the bills as of their technical and political dimensions.

An uphill battle
At first glance, the likelihood of preventing the passage of this legislation appears remote. The Harper government’s majority is firmly in position for a full term and it expects to complete its anti-crime and security agenda against all odds. The opposition parties are weak, organizationally and politically. Despite the fact they imperil freedoms, “lawful access” bills did not raise up to now much attention in the media, and therefore in the population. Moreover, this attention is more likely to focus on immediate, clear and emotional issues as the financing of health care and old-age pensions than on a technical and stealthy one like Internet surveillance. Moreover, the large ISPs that were fiercely opposed at first now became conciliatory since the significant implementation costs of monitoring and recording Internet activities might be shouldered by government. In short, it seems that nothing could successfully stop the conservative roller once it starts in motion.

Already knowing these bills, I did not attend the meeting to be informed about them, but rather to understand how they could be successfully countered. I was able to detect two apparent forces of the Harper government’s hand that, in practice, could be turned against it in a sort of political judo.

Do a “Go Daddy” to complacent ISPs
During his presentation, Antoine Beaupré reported that not only the major Internet service providers were more conciliatory with the project “lawful access” to the extent that they no longer had to bear the costs. Some major ISPs are already incline to provide information on their customers to the police even if it did not have a search warrant duly issued by a judge. Moreover, their contracts with customers – that almost nobody reads – are well written to give them “permission” to do so contractually. Conversely, other ISPs have strict policy of refusing to disclose any information about their customers without warrants (see this text from Michael Geist, though not a recent one).

Apparently, the practice of these complacent ISPs already paved the way for “lawful access”. But conversely, do not these complacent providers already offer themselves as a target for a denunciation campaign, without waiting some bill to be tabled?

The model here is the boycott of Go Daddy, the largest web hosting and domain names manager in the United States, which totally supported the PIPA and SOPA bills. To test their strength, activists launched a boycott campaign against Go Daddy. Wikipedia immediately publicly canceled its contract with Go Daddy. Within days, more than 23,000 other customers also did the same. In full panic, company officials announced that they have changed their minds about SOPA and the boycott campaign ceased. Members of Congress took careful note these actions and this turnaround.

Canadians could similarly trigger a campaign of denunciation of some major complacent ISPs that eventually could lead to a call for boycott. The interest of such a campaign could be multiple:

• to provide immediate focus in the fight against the police surveillance of the Internet (targets all the more vulnerable as it is known that some of them already have many customers dissatisfied with the quality their products and their customer service);
• to constitute some kind of a rehearsal and a justification for mobilizing already for the coming “lawful access”‘ bill;
• to educate and mobilize the population, both on these unknown contracts’ clauses and on the danger of a possible “lawful access” bill;
• to warn internet service providers against too much complacency on this issue, and perhaps push them back to a position of opposition to “lawful access”, and finally
• to warn the Harper government itself.

International Campaign
Two other points in Antoine Beaupré’s presentation also drew my attention. First, he noted that Canada, with the United States, are among the few countries left in the world that do not facilitate police surveillance of the Internet activities of their own citizens. In fact, many countries, notably China, monitor systematically and blatantly all Internet activities occurring on their territory.

Second, “lawful access” type of laws and many laws aiming to protecting intellectual property like SOPA and PIPA threaten various anonymity services and networks, like Tor. Political activists, human rights advocates, whistleblowers and journalists use these systems to counter censorship and state surveillance. Many of these services use servers located in Canada. Some of these organizations are based in Canada. If no country permitted to operate servers integrated with such networks, the consequences for civil liberties and freedoms all over the world would be dramatic.

Being among the last posts of resistance may appear precarious. However, one can also take advantage of this. Because that means there would be more than Canadian citizens who would be affected by “lawful access”. Ultimately, all citizens of the planet are.

This means that it would be possible to mobilize individuals, organizations and communities, here in Canada and around the world, that work or are linked with, for example, Asian dissidents, Arab or Middle Eastern democracy activists, citizens fighting against organized crime in Latin America, those fighting against corruption in Africa, and members of civil society across Western countries. Such international mobilization would strengthen the campaign at home and would help to explain what is at stake to the public, elected officials and government. Such mobilization could also generate considerable pressure.

Political leverage
We must not bring ourselves to only conduct some symbolic last stand against some seemingly inevitable adoption of a bill. Instead, let us think about how to practically win this fight. Especially in light of the fact that, as far as one can predict, Internet will be a permanent field where power struggles of all kinds will unfold, here and elsewhere.

Both strategic intuitions presented here are for now just that, intuitions. We must find others. Then we have to test them, design plans, and put them into action.

Recall the words attributed to Archimedes: “Give me a place to stand and a lever, I will move the World.” Let’s find these much need supports and levers.

  1. Frank says:

    There is a third way: turn the concept of lawful access against itself by emphasizing the lawful access rights of citizens and customers to know what personal information or activities of theirs is being acquired, held and used about them by ISPs, businesses, and law enforcement.
    Ten years ago federal Privacy Commissioner Bruce Philips mobilized 90,000 Canadians to make access requests in one month in response to the HRDC Longitudinal Database, effectively shutting it down.
    Mobilize people by encouraging (and facilitating) them to exercise their longstanding (but rarely used) access rights under all privacy laws in Canada!

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