Canadian 'Lawful Access' Legislation Imminent

The federal government will soon table a bill granting police greater powers to pry in cyberspace. On August 19, 2005, in a speech to the Canadian Association of Police Boards, the Minister of Justice, Irwin Cotler, confirmed that "lawful access" legislation will shortly be presented to Cabinet for final approval before being tabled in the House of Commons. In closed consultations with privacy advocates, law enforcement and industry stakeholders earlier this year, the Department of Justice discussed some of the aspects of the lawful access initiative. The bill would be expected to amend the Criminal Code and a number of related federal statutes to give police greater investigatory powers. Among the anticipated amendments, the bill will likely require Telecommunications Service Providers (TSPs) to provide "subscriber data" to police upon mere oral or written request, without judicial authorization. Subscriber data would be limited to name, address, telephone number or other telephony service subscriber identifiers, and Internet subscriber service identifiers. TSPs would be required to make their "best effort" to provide the most up-to-date subscriber information and would be subject to a gag order with respect to the request. Evidence adduced by Internet service providers during the recent high-profile music file-sharing suit in BMG v John Doe clearly demonstrates that TSPs maintain different quantities and types of traffic and transmission data according to their unique business needs. The bill would oblige TSPs to adopt uniform technical measures to enable them to isolate as well as produce subscriber "traffic data". A TSP would also be required to remove encoding, compression, encryption or any other treatment. These technical requirements, the cost of which would be borne by industry, would be phased in. Initially, they would not apply to smaller TSPs. The proposed legislation would adopt a number of new or updated criminal investigatory powers, including production, preservation and assistance orders, tracking warrants, and transmission data recorders. It would also amend the Criminal Code to include new offences for importing, obtaining for use or making available hacking devices, and for communicating false messages. While at times the bill has been harshly criticized by privacy advocates, including the federal Privacy Commissioner and several of her provincial colleagues, the changes would likely include at least one privacy-friendly amendment. Under current Canadian law, e-mail communications are subject to different degrees of privacy depending whether the e-mail is "in transit" or "stored". The government has proposed an amendment which would treat all private communications equally, regardless of the method of transmission. For the text of the speech by Minister Cotler to the Canadian Association of Police Boards, see: http://canada.justice.gc.ca/en/news/sp/2005/d_31604.html Visit here for the 2002 Lawful Access Consultation Document: http://canada.justice.gc.ca/en/cons/la_al/ For further background and many links of interest, visit the Cybercrime and Lawful Access information site: http://www.lexinformatica.org/cybercrime/ Summary by: Jason Young