A new legislation that will provide authorities with broader powers to compel Internet Service Providers (ISPs) to release user information to law enforcement agencies is being prepared by the federal government.
The proposed laws are intended to boost the capability of police to hunt down criminals and terrorists, but privacy advocates said such a move must always be accompanied by adequate public consultation and debate as well as judicial oversight.
Public Safety Minister Peter Van Loan confirmed the move during an appearance before a House of Commons committee where he said police are ham strung by current wiretap and surveillance laws. “
Current laws were written in an era before the internet, the cell phone and new technologies like Voice over Internet Protocol (VOIP).
Police investigative powers in current laws can be rendered ineffective through criminal use of new technologies,” Van Loan said.
Van loan said in some instances such as a child online exploitation cases, the police are able to rely on cooperation from a lot of ISP ‘but there are some who aren’t so cooperative.”
The proposed law will still require police to secure court approval before eavesdropping on Internet exchanges such as e-mails and chatroom conversations.
“Our Government is exploring ways to provide police with the ability to combat internet crime, while ensuring that the privacy rights of law-abiding Canadians are respected,” the minister said.
Law enforcement agencies (LEA) have been consistent in their demand for new powers that will enable interception or digital communications and search and seizure of information, according to David Fewer, acting director of the Canadian Internet Policy and Public Interest Clinic (CIPPIC), an Ottawa-based research and advocacy organization focusing on technology-related policies and laws.
He said LEAs have always sought:
• Rights to compel ISPs to release data
• Easing the burden of proof in seeking judicial warrants
• Reduction of requirements to obtain such warrants
“I am anxious to see both the draft legislation and the substantive evidence justifying and degradation of judicial oversight or diminishment of the burden of proof that law enforcement agencies require to obtain an invasive order,” said Fewer.
While a new legislation might aid police in dealing with criminal and even national security issues, it runs the risk of chipping away at civil liberty rights and safeguards against abuse of authority, he added.
“Canada has a recent history of abuse of process in both criminal and national security settings, so we should be critically examining these efforts to expand police powers,” Fewer said.
Lawful Access to private information has long been sought by the police but it is essential that any new legislation include judicial oversight, according to Michael Geist, Canada research chair of Internet and E-commerce Law at the University of Ottawa.
Lawful Access is a specialized toll used by police and national security agencies to investigate serious crimes such as drug trafficking, money laundering, smuggling, child pornography and murder. This involves the lawful interception of communication and the search and seizure of information, including computer data. Lawful Access can only be used with legal authority such as a warrant or authorization to intercept private communications, issued by a judge under very specific circumstances.
“You can’t just leave it to law enforcement agents to decide what and how information can be obtained,” Geist said.
He said there has been very little research on how much current legislation is hampering investigation or is being abused by investigators. “So much stuff is happening below the radar screens that it’s very hard to determine how existing laws are being used or misused.”
Geist called for greater public consultation debate on the matter so that LEAs can demonstrate the need for new legislation.
“Law enforcers have to make a case for this. They have been asked numerous times over the years to provide compelling evidence,” Geist said.
ITWorldCanada sought feedback from the Royal Canadian Mounted Police, but the RCMP’s media relations department said they were not commenting on the matter.
In the recent past it was the minority Liberal government then under Paul Martin that introduced several pieces of legislation to change the way copyright is handled electronically and how police use the Internet in their investigations.
The Modernization of Investigative Techniques Act, which would legalize several elements of the Lawful Access proposals that affect ISP across the country, was shelved with the defeat of the Paul Martin government.
Geist said the new legislation Van Loan is talking about will also likely involve substantial technology mandates such as those requiring ISPs to upgrade technology to permit easier LEA intercepts.
“There is certainly going to be an issue of how technology will be used to determine what type of and how much data will be stored and retrieved. The question will be who pays for all that,” Geist said. ISPs might “fiercely resists” any legislative proposal that hits their bottom line but this resistance could dissipate if the financial burden is lightened, said Fewer of CIPPIC.
“To the extent that the impact is lessened (for example by grandfathering existing technologies and making intercept capability proactive or by including a subsidy program), we expect ISP opposition to considerably lessen,” Fewer said.
