I N M Y W O R D S by Michael Geist
THE THREAT OF LAWFUL ACCESS
LATER THIS YEAR, THE FEDERAL GOVERNMENT OF CANADA IS EXPECTED TO INTRODUCE AND PASS AN OMNIBUS CRIME BILL THAT WILL HAVE HUGE CONSEQUENCES ON PEOPLE’S PRIVACY IN THIS COUNTRY. IT MIGHT MEAN GREATER SECURITY, BUT THE QUESTION FOR SOME PEOPLE IS, AT WHAT COST?
ince the events of 9/11, an unbeliev- able 10 years ago, politicians around the world have grappled with the need for effective security policy that ac- counts for ongoing privacy concerns. Striking the balance is not easy for poli- cies that prioritize security without effec- tive privacy oversight run the risk of abuse, while overly stringent privacy safeguards may result in unnecessary barriers to effective security.
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The security-privacy balance will take centre stage later this year when Canada’s federal government introduces its om- nibus crime bill that is likely to bundle at least 11 crime-related bills into a single massive legislative package. The Conser- vatives argue that the omnibus approach is needed since the opposition parties “obstructed” passage of their crime and justice reforms during successive mi- nority governments. Yet included within the crime bill package is likely to be leg- islation creating new surveillance re- quirements and police powers that has never received extensive debate on the floor of the House of Commons, nor have never been the subject of committee hearings.
The package is benignly nicknamed “lawful access,” but isn’t benign at all. If the Conservatives move forward with their complete lawful access package, it will include a three-pronged approach fo- cused on information disclosure, man- dated surveillance technologies and new police powers.
The first prong mandates the disclo- sure of Internet provider customer infor- mation without court oversight. Under current privacy laws, providers may vol- untarily disclose customer information, but are not required to do so. The new system would require the disclosure of customer name, address, phone number, e-mail address Internet protocol address, and a series of device identification
38 SECURITY MATTERS • FALL 2011
numbers. If presented with a disclosure demand from law enforcement, providers would be required to turn over the requested data without external re- view or oversight.
The second prong requires Internet providers to dramatically re-work their networks to allow for real-time surveil- lance. The bill sets out detailed capability requirements that will eventually apply to all Canadian Internet providers. These in- clude the power to intercept communica- tions, to isolate the communications to a particular individual and to engage in multiple simultaneous interceptions. Moreover, the bill establishes a com- prehensive regulatory structure for In- ternet providers that would mandate their assistance with testing their surveillance capabilities and disclosing the names of all employees who may be involved in in- terceptions (and who may then be sub- ject to RCMP background checks). It also establishes numerous reporting requirements, including mandating that all Internet providers disclose their technical surveillance capabilities within six months of the law taking effect. Follow-up reports are also required when providers acquire new technical capabilities.
The requirements could have a signif- icant impact on many smaller and inde- pendent Internet providers. Although the bill grants them a three-year implemen- tation delay, the technical capabilities ex- tend far beyond most of their commercial needs. Indeed, after years of concern over the privacy impact associated with deep-packet inspection of Internet traffic (costly technologies that examine In- ternet communications in real time), these bills appear to require all Internet providers to install such capabilities. Having obtained customer information without court oversight and mandated In- ternet surveillance capabilities, the third prong creates several new police powers
designed to obtain access to the surveil- lance data. These include new trans- mission data warrants that would grant real-time access to all the information generated during the creation, transmis- sion or reception of a communication in- cluding the type, direction, time, duration, origin, destination or termina- tion of the communication.
Law enforcement could then obtain a preservation order to require providers to preserve subscriber information, in- cluding specific communication infor- mation, for 90 days. Finally, having obtained and preserved the data, pro- duction orders can be used to require the disclosure of specified communications or transmission data.
While Internet providers would actively work with law enforcement in collecting and disclosing the subscriber informa- tion, they could also be prohibited from disclosing the disclosures as the courts may bar them from informing sub- scribers that they have been subject to surveillance or information disclosures. Lawful access is complex legislation that touches on a very wide range of is- sues, many of which extend far beyond conventional criminal law. Given that the proposals breed uncertainty and have never been the subject of public review, lumping them together with many other bills represents a serious threat and is bound to result in only a cursory analysis of an important piece of legislation that has far-reaching consequences for pri- vacy, security and free speech.
Michael Geist (
wwww.michaelgeist.ca) holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can
be reached at
mgeist@uottawa.ca.
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