Originally published in Blakes Bulletin on Information Technology, November 2006
Immediately prior to the federal election in late 2005, the former Liberal government had introduced Bill C-74, Modernization of Investigative Techniques Act, known colloquially as the Lawful Access Bill (the Bill), for first reading. Key features of the Bill were that it obliged telephone and ISPs to have the capability to intercept all data that they transmit and required that this interception capability be upgraded as telecommunications service providers introduce more advanced communication technologies. However, due to the election, the Bill died on the order paper and the issue has received minimal attention until now. Recently, Public Safety and Emergency Preparedness Canada (PSEPC), the department that sponsored the Bill, made a statement confirming that they plan to revive the Bill in some form. This leaves open the question – exactly when will Canadian lawful access legislation be modernized and to what extent?
Currently, the Criminal Code and the Canadian Security Intelligence Service Act give law enforcement and national security agencies legal authority to carry out the interception of communications and for the search and seizure of information. Both pieces of legislation were passed at a time when methods for intercepting communications were relatively straightforward. According to a 2003 Consultation Document published by the Department of Justice, the lawful access initiative was prompted by the need to modernize these laws to better deal with new technologies in the ever changing landscape of the telecommunications industry.
The Canadian initiative began in 2000 and has since progressed in fits and starts. In 2002, the Department of Justice began consultations with non-governmental organizations, and by late that year, a formal consultation document was released. In 2003, a summary of industry, government and public recommendations was released after an extensive consultation period, and by 2005 the federal government had focussed its initiative and introduced the Bill.
What is lawful access? The PSEPC has outlined two main issues that the Bill intended to address – interception of communications and access to subscriber information. While little is known about the current government’s plans regarding a new lawful access bill, it is reasonable to expect that many of the same issues contained in the Bill will re-appear. PSPEPC may not want to alter the provisions in the Bill too much since the Bill was already extensively studied; any dramatic shift in thinking may require the expenditure of significant political capital to fight these battles again. Accordingly, it is helpful to understand some of the salient features of the Bill.
First, the Bill required telecommunications service providers to have intercept-capable networks. Interception includes listening to, recording or acquiring information. In essence, the Bill imposed two interception obligations on service providers: (i) a service provider would be forced to possess the ability to intercept all communications that it transmits, including the ability to provide authorized persons with the means to decode any encoded or encrypted communications, and to maintain this ability in as far as it introduces new technology to its systems; and (ii) service providers would be required to have the capability to enable authorized persons to intercept communications involving multiple users, including furnishing authorized persons from multiple national security and law enforcement agencies with the ability to make simultaneous interceptions of communications of multiple users.
The Bill also required a service provider to release any intercepted communication when requested to do so by an authorized person, including those authorized under the Criminal Code or the Canadian Security Intelligence Services Act to intercept communications. Failure to release intercepted communication in the form demanded could result in an offence including a fine of up to CAD 100,000 for individuals and up to CAD 500,000 for all other persons.
Second, the Bill would have required telecommunications service providers to provide certain officials, such as the Royal Canadian Mounted Police, Canadian Security and Intelligence Service and the Commissioner of Competition, with a subscriber’s contact information, including their name, address, and Internet Protocol address. In order to obtain such information, a request would have to be made by the official; the Bill contained a number of safeguards with respect to this request, the information that could be provided and the use of such information so that the Bill would, purportedly, not be in violation of the Charter of Rights and Freedoms. It was not clear, however, that the provision of customer information pursuant to the Bill would not offend Charter prohibitions on unreasonable searches and seizures, since the PSEPC has not publicly made a satisfactory case justifying that warrantless access to customer information is necessary; there do not appear to have been situations where unreasonable delays have occurred in gaining access to a judge for a search warrant.
In addition to the subscriber information listed above, the Bill also required that a telecommunications service provider supply, "... any other identifiers associated with the subscriber ...". The Bill did not specify what the term "identifiers" refers to and it is unclear whether this provision would require disclosure of sensitive personal information such as, unlisted telephone numbers, customer billing records or credit history. Arguably, in order to prevent unnecessary intrusions on customer privacy, the Bill ought to have clarified exactly what information, in the form of an exhaustive list, the telecommunications service provider would be required to disclose.
The Bill also allowed the Commissioner of the Royal Canadian Mounted Police, the Director of the Canadian Security Intelligence Services (CSIS), the Commissioner of Competition and the chief or head of a police service constituted under the laws of a province to designate any employee of his or her agency, or a class of such employees whose duties are related to protecting national security or to law enforcement. A designated person responsible for collecting subscriber information could make such a request only in performing the duty and function of CSIS, a police service or of the Commissioner of Competition under the Competition Act. Oversight over these designated persons would consist of recording all the requests for subscriber information that are made and creating the prospect of audits on the use of this power.
Furthermore, the Bill permitted any police officer to request subscriber information, provided they act in accordance with the safeguards contained in the Bill, which require the police officer to reasonably believe that the urgency of the situation allowed for it and that the information requested is immediately necessary to prevent an unlawful act that would cause serious harm to any person or property. In addition, the requested information would have to directly concern either the perpetrator of the act that is likely to cause harm or the victim or intended victim of the harm. A police officer making such a request would be obliged to inform the telecommunications service provider of his name, rank, badge number and the agency in which he is employed and state that the request is made under the authority of the relevant section of the law.
The Bill also allowed CSIS or a law enforcement agency to furnish a service provider with equipment to intercept communications. Such service provider could not remove the provided equipment without notifying the applicable law enforcement agency if the equipment’s removal would result in decreasing its interception capability.
The Minister of Public Safety would have had the power under the Bill to designate inspectors to verify compliance with the Act. An inspector would have wide powers, including the power to enter any place owned by, or under the control of a telecommunications service provider provided it is not a dwelling place and the inspector had reasonable grounds to believe that there was information relevant to the enforcement of the Act, no warrant would be required. The owner or person in charge of a place entered or to be entered by an inspector would have to assist the inspector in his investigation; failure to do so would result in an offence and a corresponding penalty of up to CAD 15,000.
The Bill did not apply to all service providers. For example, where a telecommunications service was intended principally for use by its provider and the provider’s household or employees and not by the public, the Bill was not applicable. A service provider whose principal function is to provide services to registered charities, certain educational institutions, hospitals, retirement homes, places of worship or a telecommunications research network would also be exempted from the application of the Bill. However, the Bill’s definition of a service provider ("a person who, independently or as part of a group or association, provides telecommunications services") is very wide and potentially encompasses businesses who offer telecommunications services as an ancillary part of their business, likely having created onerous and costly obligations.
Although the Bill attempted to harmonize its requirements with the protections offered by the federal Personal Information Protection and Electronic Documents Act (PIPEDA), no reference was made to privacy guarantees pursuant to provincial legislation. While many telecommunications service providers are federally-regulated undertakings, there are organizations (for example, a Web site hosting provider) which may fall within the expansive definition of "telecommunications service provider", but be subject to provincial privacy legislation. In addition, the issue of whether provincial privacy laws will apply to federally-regulated organizations in respect of their operations in a province has not been conclusively determined.
The Bill was circulated to interested parties, and a working group of the Canadian Bar Association (CBA) planned to respond before the call of the federal election last year, after which it died on the order paper. The Bill has only recently resurfaced as a priority of the current government, with few details provided. Interested parties such as the Canadian Association of Internet Providers and the Information Technology Association of Canada have cited problems with the Bill and have outlined issues they would like the new government to consider; similarly, the CBA continues to monitor the reintroduction of the Bill or a similar type initiative.
If the government reintroduces the Bill or something of a similar nature, there could be widespread implications for the telecommunications industry, the private sector and the public. Although there has been no definitive statement as to whether or not any new bill will mirror the one introduced last year, any new legislation that is introduced will likely require telecommunication companies to proactively create intercept-capable networks and disclose subscriber information if so requested. To the extent that these obligations will require carriers to implement, for example, software upgrades that are nonstandard and unique to Canadian legal requirements, significant costs will likely be imposed on telecommunications companies.
Given recent developments in other jurisdictions and in the context of the recent PSEPC statement, it is likely that lawful access will be back on the forefront of the public policy agenda in the near future.
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