The Snoopers’ Charter - Criminalizing Encryption


Full disc encryption. Fully encrypted back-ups. Back-ups for my back-ups. Am I a criminal? No - I'm a responsible lawyer who understands technology (at least on a cursory level) and is vicious about maintaining the confidentiality of her clients.

The internet is a weird mix of bedroom and public park. People use the internet for intensely personal things, but they also use it for the most public of their activities. My messages/emails/etc. It's difficult to determine whether someone's activities online are bedroom or public park. I've suggested in the past that encryption is the act of shutting the door - of establishing a higher reasonable expectation of privacy.

Courts use this idea of a reasonable expectation of privacy to determine whether or not search/seziure of that person's dwelling/stuff violated the Charter. It's on a continuum. You can have a reasonable expectation of privacy in your hotel room, but you have a higher reasonable expectation of privacy in your home, and an even higher reasonable expectation of privacy in a drawer in your home. It always makes me think of Russian dolls.

The cute little one has the highest reasonable expectation of privacy. Look at her. All smug... ehem.

The Supreme Court of Canada recognized in R. v. Spencer (2014) that a person has a reasonable expectation of privacy in their anonymity online. In that case, it was held that an Internet Service Provider (ISP) cannot be compelled to provide the identity of the user of a certain IP address.

In R. v. Ley and Wiwchar (2014) a BC judge held that the accused had a reasonable expectation of privacy in his Blackberry messages due, in part, to the fact they were encrypted. The judge also commented on the fact that courts have consistently held a person does not abandon their reasonable expectation of privacy simply by stepping out the door.

Reasonably expectation of privacy online. Encryption increases reasonable expectation of privacy. All of a sudden, I'm looking like the littlest doll. But there are those who seek to interrupt this trend by making the act of encryption itself illegal or requiring service providers to install backdoors to allow for decryption where a court order exists.

Legislation proposed in the UK would make social media and online messaging services including Snapchat, Facebook Messenger and iMessage illegal in the country.

The Investigatory Powers Bill, or the so called Snoopers’ Charter, would allow security services like the Government Communications Headquarters, or GCHQ, and MI5, or Military Intelligence Section 5, to access instant messages sent between people to and from the country. In an aim to combat terrorism and other crimes, the legislation would give the government right to ban instant messaging apps that use end-to-end encryption (that's iMessage, people!). The legislation would also require service providers to retain data (messages) for at least 12 months.

With the greatest respect to Canada's sexier-sounding (and slightly neurotic) sister - this proposed legislation is absolute lunacy.

The lunacy continues in the US where the FBI obtained a court order demanding that Apple decrypt iMessages.

Now. I have American friends. They confuse me. They are as casual with guns as they are with television remotes and they eat potatoes out of boxes (Seriously, what the heck is up with that?). BUT, if I had a top ten list of things I love about Americans the top two would be ....

(1) They ask you how you want your burger done. As a person who likes her steak basically still moving this is a welcome novelty whenever I go south of the border. Although I haven't ever been brave enough to get a rare burger.

(2) They are absolutely wild about freedom of expression. First Amendment rights are as absolute as rights get. I love it. I love Americans. I've said it before and I'll say it again. Americans are awesome in this regard.

I also love Apple. In this instance, Apple told the FBI that it cannot comply with the court order to decrypt because they did not build in a way around their encryption systems.

Y. E. S.

Aside from being amused by scrappy companies who aren't afraid to go toe to toe with the Gov, why is this important?

In my last post I mentioned that I trade in confidentiality. I meant it. Privacy is paramount to my clients, but also to the democratic function lawyers serve. What about the democratic function of other citizens? A citizen's vote isn't their only way to express their political opinion (see... ya know... the INTERNET, etc.). What happens when a citizen cannot be open/frank online?

Truth: I love to sing in the kitchen while I bake things. I sing a lot less loudly when my husband is around - not because I don't trust him or because I'm a bad singer (I am), but because there is something liberating about solitude, about being on ones own and knowing that one is on ones own.

I'm not the only one who has thought this.

Not all citizens have the social liberty to express themselves in a public forum, but they still have valid opinions/ideas. They should be able to express those ideas behind the only shield we have left - anonymity. Anonymity, like solitude, is liberating.

Encryption is anonymity and it serves a vital democratic function. Period.

When citizens can no longer move or act without an absolute guarantee at least some of their actions won't be surveilled by their government they no longer have a right to privacy, but a revokable privilege in it.

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