Lawful Access Legislation (June 2009)

Lawflu Access Legislation (JUNE 2009)

On June 18, 2009, the Canadian Government tabled two parallel bills with the stated purpose of providing law enforcement bodies with the tools to combat crime in the digital era:

• Bill C-47, the Technical Assistance for Law Enforcement in the 21st Century Act [1]
• Bill C-46, the Investigative Powers for the 21st Century (IP21C) Act [2]

The government has provided a media release and a number of Backgrounders to provide its context for this legislation:

• Backgrounder: Public Safety Canada, Technical Assistance for Law Enforcement in the 21st Century Act [3]
• Media Release: Public Safety Canada, Government Of Canada Introduces Legislation To Fight Crime In The 21st Century [4]
• Backgrounder: Department of Justice, Investigative Powers for the 21st Century (IP21C) Act [5]

Bill C-47, the Technical Assistance for Law Enforcement in the 21st Century Act [1]

This Bill comes out of the Ministry of Public Safety and contains two main components - an interception component and a subscriber information component. The Act creates a new legal obligation on telecommunications service providers to include interception capabilities in their networks. The Government claims that this does not provide law enforcement agencies with any new powers, but rather ensures a technical means is always available to execute a judicial warrant authorizing interception of communications. Certain exemptions from the requirement are granted to banks, private networks and charities, while a three-year exemption to the requirements are granted to service providers with less than 100 000 subscribers. The burden of paying for this intercept capability will fall on the service providers (and therefore ultimately the consumer) in the case of new equipment and software, while the Government will pay for retrofits to existing equipment and software. CIPPIC argues that requiring, in effect, for the consumer to pay for a system that allows for her own surveillance by public authorities is unjust. If the argument is that such a system is necessary for reasons of public safety, it ought to be paid for out of general government revenue in order that the burden may be equally shared across Canadians, and thereby more clearly subject to the democratic process.

Bill C-46, the Investigative Powers for the 21st Century (IP21C) Act [2]

The Investigative Powers for the 21st Century (IP21C) Act [2], out of the Department of Justice, is also aimed at updating law enforcement tools.  The bill contains four major provisions. First, it would allow law enforcement agencies to apply for production orders requiring service providers to provide them with transmission data sent or received via the internet or telephone. Second, it would allow law enforcement agencies to apply for preservation orders requiring service providers to retain data related to specific communication or an individual subscriber. Third, it would criminalize the arrangement or agreement online or over a telephone by two or more people of the sexual exploitation of a child. Finally, it would revise the existing system of tracking warrants, warrants that allow law enforcement agencies to remotely activate tracking devices in equipment such as mobile phones.

CIPPIC is concerned that the standard required for the production, preservation and tracking orders mentioned above will not meet the typical ?reasonable and probably grounds' level. Even though the production order would not allow access to the content of private communications, dates, times, and header information on e-mail messages has the potential create a detailed picture of an individual's social network, online activities, and personal interests. The generation of such profiles ought only be allowed in the case where there are reasonable and probable grounds that the individual has committed a crime, and should therefore be granted by judicial authorization to that standard.