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Lawful Access is Dead; Long Live Lawful Intercept!
Most recently, the politics surrounding C-30 led to the death of the bill, though aspects of it have already crept into other pieces of federal legislation. While Canadians and advocates have arguably been successful in repelling lawful access (again), its important to recognize that some facets of the legislation were migrated outside of the Parliament many months ago. The death of C-30 does not mean that non-Parliamentary processes will similarly be killed. Specifically, facets of the lawful access legislation have been advanced by Industry Canada during the Departments 700MHz consultation under the guise of modernizing lawful intercept capabilities.
...the CWTA wrote that there has been no enabling legislation passed by Parliament that would require such services be intercepted, and submits that it is inappropriate for the Department to impose such requirements via a COL particularly at a time when the Government is engaged in a legislative process covering the lawful access issue at a broader level. The COL should reflect the legislative requirements that exist at the time the licences are issued, and not be crafted in anticipation of legislative requirements that may or may not be in force at some point in the future.
Other carriers, such as Eastlink, Wind, MTS Allstream, Quebecor, Rogers, TBayTel, and TELUS shared sentiments similar to Bells and the CWTAs. The CWTAs comments are especially poignant in light of the governments retreat from Bill C-30: lawful access has been largely dropped, but this has not corresponded with statements from Industry Canada or Public Safety indicating that either Department is stepping away from modernizing lawful interception requirements.
Data flowing from USB HSPA+ modems would be subject to lawful intercept, as would data linked to tethered mobile phones, as would email, text messages, an other communications emitted directly from mobile devices. In essence, the government wants carriers to be capable of preserving any data that is received by, or transmitted from, wireless devices that use licensed spectrum.The changes that are proposed by Industry Canada represent a significant expansion of what communications could be placed under surveillance
. There is a qualitative and quantitative difference between circuit-based and radio-based communications, insofar as entirely new means of communication may be captured (e.g. email, streaming music and video usage, TV-watching, gaming over wireless networks, etc) and more communication potentially falls under the auspice of this requirement because of the broad definition of radio-based. Thus, whereas carriers previously had a limited set of clear interception requirements, this simple change in language would substantially expand what they would be required to be able to intercept and preserve.