Lawful Access Rears Its Head Again

Yesterday, the Justice and Public Safety ministers unveiled the latest generation of proposed “lawful access” legislation. Variations had been introduced in the past by previous Liberal governments, only to die on the order paper.

The texts of Bills C-46 and C-47 are now online at the Parliament website for your reading pleasure (and here are the summaries included in the bills when tabled in Parliament):

C-46 An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act aka Investigative Powers for the 21st Century Act.
First Reading


The enactment amends the Criminal Code to add new investigative powers in relation to computer crime and the use of new technologies in the commission of crimes. It provides, among other things, for

(a) the power to make preservation demands and orders to compel the preservation of electronic evidence;

(b) new production orders to compel the production of data relating to the transmission of communications and the location of transactions, individuals or things;

(c) a warrant to obtain transmission data that will extend to all means of telecommunication the investigative powers that are currently restricted to data associated with telephones; and

(d) warrants that will enable the tracking of transactions, individuals and things and that are subject to legal thresholds appropriate to the interests at stake.

The enactment amends offences in the Criminal Code relating to hate propaganda and its communication over the Internet, false information, indecent communications, harassing communications, devices used to obtain telecommunication services without payment and devices used to obtain the unauthorized use of computer systems or to commit mischief. It also creates an offence of agreeing or arranging with another person by a means of telecommunication to commit a sexual offence against a child.

The enactment amends the Competition Act to make applicable, for the purpose of enforcing certain provisions of that Act, the new provisions being added to the Criminal Code respecting demands and orders for the preservation of computer data and orders for the production of documents relating to the transmission of communications or financial data. It also modernizes the provisions of the Act relating to electronic evidence and provides for more effective enforcement in a technologically advanced environment.

The enactment also amends the Mutual Legal Assistance in Criminal Matters Act to make some of the new investigative powers being added to the Criminal Code available to Canadian authorities executing incoming requests for assistance and to allow the Commissioner of Competition to execute search warrants under the Mutual Legal Assistance in Criminal Matters Act.

C-47 An Act regulating telecommunications facilities to support investigations aka Technical Assistance for Law Enforcement in the 21st Century Act.
First Reading


This enactment requires telecommunications service providers to put in place and maintain certain capabilities that facilitate the lawful interception of information transmitted by telecommunications and to provide basic information about their subscribers to the Royal Canadian Mounted Police, the Canadian Security Intelligence Service, the Commissioner of Competition and any police service constituted under the laws of a province.

This will surely be controversial. Already, articles on the legislative initiatives have garnered thousands of mostly negative comments on CBC and the Globe & Mail.

Interestingly, Stockwell Day when he was Minister of Public Safety said on CBC’s Search Engine [MP3 Podcast] that:

“We are not, in any way, shape or form, wanting extra powers to police to pursue items without a warrant. That is not what our purported legislation is going to be doing. That is previous Liberal legislation and that’s not the path we’re walking down at all.”

He was similarly quoted in the Ottawa Citizen.

The topic of warrantless access to customer information is one that I find very problematic. At the press conference, it was said that this is “not a privacy issue, but a child safety issue.” Also, it was said that if there’s a privacy issue, it’s about the privacy of exploited children. That’s too simplistic. It’s a privacy issue and a child safety issue and the issue requires a bit more nuance than was conveyed by the Ministers and the Bills’ supporters.

The suggestion that customer name and address information is not sensitive information because it is the sort of info listed in a phone book misses the point. The sensitivity of the information depends on the context. Your name on a list of residents in a city is not particularly revealing, but your name on a list of people who are being treated for depression surely is. If police are looking for a customer’s name and address, it’s not because they’re carrying out a census. It’s because they think they have something nasty to connect that person to. And if they are looking for it without a warrant, it’s because they don’t have enough evidence to satisfy a judge or a justice of the peace. Or because they think constitutional rights to privacy are an inconvenience.

Supporters of lawful access also suggest that IP addresses are just like phone numbers. That also misses the point. You choose who you give your phone number to. Everywhere you go on the internet, even if you think you’re anonymous, you’re leaving your IP address. It’s as though in the real world you left a trail of cards with only your (unlisted) phone number on them. People do completely lawful things on the internet and have an expectation of privacy with respect to those activities. Connecting their digital “footprints” to their offline identities should only be done with a warrant.

The warrantless disclosure of customer information is just one aspect of this legislation, all of which requires very careful public scrutiny.

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