Tories Introduce New Lawful Access Legislation

Lawful access legislation has once again popped up in Canada. On June 18 Parliament introduced two new bills: the Investigative Powers for the 21st Century Act (Bill C-46) and the Technical Assistance for Law Enforcement in the 21st Century Act (Bill C-47). According to the government press release, the main goal of the new Acts is to provide law enforcement with the tools they need to police new communication technologies like the internet. The content of the Acts is similar to that of Bill C-74 which was introduced in 2005 but died on the order paper. The legislation has been met with some media coverage from the CBC and the Globe and Mail and attracted the attention of some commentators like Michael Geist and D. Lawrence Munn.

The Investigative Powers for the 21^st Century Act would allow police to obtain transmission data from internet service providers (ISPs) by way of a production order or warrant. This would allow the police to track routing information including which sites a person is visiting, who they are communicating with on instant messenger, etc. The Act would also introduce a preservation order whereby police could order an ISP to not delete data concerning a particular subscriber. Police would also be able to obtain a warrant to turn on tracking devices commonly found in many electronic devices like cell phones. Finally, the Act toughens up cybercrime enforcement by new criminal offenses for arranging child sexual exploitation over the internet and to possessing a computer virus with the intent of mischief.

Perhaps more controversial is the Technical Assistance for Law Enforcement in the 21^st Century Act. Currently, although the police have the power to intercept telecommunications transcripts via a court order most ISPs are not equipped to handle such requests. The new Act would require the ISPs to upgrade their systems to be “intercept-capable” and allow timely access to subscriber information. This upgrade in infrastructure would essentially give police the same powers to monitor digital transmissions as they currently have with telephones. Notably, the Act requires the costly upgrades to be made largely out of the ISPs own pockets (though the government is subsidizing some of the initial purchases by up to 50%). The Act would also allow the police to obtain basic subscriber information such as names, addresses and email addresses from ISPs without court oversight.

Predictably, the Acts (which expand police powers and arguably shrink Canadians’ sphere of privacy) have been met with criticism. Along with the usual knee-jerk hacker contingent, some valid points have been made by concerned privacy watchers. D. Lawrence Munn points out that the Acts seem to expand on powers introduced in PIPEDA, and may not withstand a s. 8 Charter challenge. ISPs are also scrambling, arguing that the added costs of the new equipment could run some small ISPs out of business. It should be interesting to watch whether the recent controversy over the Acts intensifies over the summer or fizzles out before Parliament resumes in the fall.