Michael Geist reports today that the Canadian Chamber of Commerce and other business groups want to ensure that their members will be premitted to secretly install spyware on personal computers for a wide range of purposes. Specifically, they demand to be permitted to install, without individuals’ knowledge and consent, computer programs that are
installed by or on behalf of a person to prevent, detect, investigate, or terminate activities that the person reasonably believes (i) present a risk or threatens the security, privacy, or unauthorized or fraudulent use, of a computer system, telecommunications facility, or network, or (ii) involves the contravention of any law of Canada, of a province or municipality of Canada or of a foreign state;
In other words, they ask to be legally permitted to have extensive surveillance and self-help powers over individuals to “prevent, detect, investigate, or terminate” activities that they deem undesirable: to be the police, the judge, the jury, and the executor.
It seems as if the Canadian Chamber of Commerce has been inspired by the notorious Star Chamber, whose
jurisdiction was almost unlimited. It took notice of riots, murder, forgery, felony, perjury, fraud, libel and slander, duels and acts tending to treason, as well as of some civil matters, such as disputes about land between great men and corporations, disputes between English and foreign merchants, and testamentary cases; in fact, as Hudson says, “all offences may be here examined and punished if the King will.” Its procedure was not according to the Common Law. It dispensed with the encumbrance of a jury; it could proceed on rumour alone; it could apply torture; it could inflict any penalty but death.
True, the Chamber of Commerce and its partners do not ask to be allowed to apply torture, but other than that, their demands for unilateral power and disregard to due process are not that dissimilar. But the similarities do not end here. As an enforcer of royal proclamations and other grants, the Star Chamber played a crucial role in enforcing the oppressive regime of press control and monopoly that the Stationers’ Company of London held over the book trade in the days before the enactment of the Statute of Anne (the first Copyright Act). Demands for extensive power to enforce exclusive right over content, for censorship, and for dealing with concerns about real and imaginary security threats were common with the advent of print as they reemerge with the advent of digital technology.
For example, the Star Chamber Decree of July 11, 1637 dealt with extensive regulation of the printing and printers. It provided that
no person or persons whatsoeuer shall presume to print, or cause to bee printed … , any seditious, scismaticall, or offensive Bookes or Pamphlets, to the scandal of Religion, or the Church, or the Government, or Governours of the Church or State, or Commonwealth, or of any Corporation, or particular person or persons whatsoeuer, nor shall import any such Booke or Bookes, nor sell or dispose of them, or any of them, nor cause any such to be bound, stitched, or sowed, vpon paine that he or they so offending, shall loose all such Bookes and Pamphlets, and also haue, and suffer such correction, and severe punishment, either by Fine, imprisonment, or other corporall punishment, or otherwise, as by this Court, or by His Maiesties Commissioners for causes Ecclesiasticall in the high Commission Court, respectiuely, as the several causes shall require, shall be thought fit to be inflicted upon him, or them, for such their oft’ence and contempt.
Only licensed books were allowed to be printed and sold, and only by members of the Stationers’ Company. The Decree also provided the Master and Wardens of the Stationers’ Company extensive search, seizure, and arrest powers “to search what houses and shops (and at what time they shall think fit) especially Printing-houses, and to view what is in printing, and to call for the licence to see whether it be licensed or no”, and if a license could not be presented to “seize vpon so much as is printed, together with the seuerall offenders, and to bring them before the Lord Arch-Bishop of CANTERBURY, or the Lord Bishop of LONDON for the time being, that they or either of them may take such further order therein as shall appertaine to Iustice.” That power pertained both the books that were printed without the authorization of the Statinoers’ Company as well as to any “any book or bookes, or part of booke or books which they suspect to containe matter in it or them, contrary to the doctrine and discipline of the Church of England, or against the State and Gouernment …”
While the Stationers were granted such extensive search, seizure, and arrest powers, the Star Chamber at least decreed that final adjudication was supposed to be before the Lord Arch-Bishop of Canterbury or the Lord Bishop of London. The Canadian Chamber of Commerce would dispense with such trifle requirement.
Is the Canadian Chamber of Commerce serious about becoming the new Star Chamber? Probably not. Maybe the purpose of this ridiculous proposal is to be a red herring and either divert the attention from other demands and proposals or at least make them look reasonable in comparison. But hopefully, this red herring would be of the backfiring variety: the kind of red herring that causes proponents of ridiculous claims lose any credibility.