reply to MaynardKrebs
Re: Lawful Access articles - collection
Privacy watchdog seeking compromise for Tories Internet surveillance bill
....Benyekhlef, a former federal prosecutor who is now director of the universitys Centre de Recherche en Droit Public, concludes that the federal bill is inconsistent with the Charter of Rights because it allows warrantless access to subscriber information.
There is tradition in Canadian law that the state must have a warrant before exercising its search or seizure powers, Benyekhlef said in an interview.
He proposes a five-step process in which the authorities would first apply to a court for an order seeking subscriber data. This could be done in person, by paper or on the phone.
A judge or justice of the peace would review the application to ensure it sets out reasonable suspicion that the Criminal Code or other federal law has been breached and that the information sought relates to the alleged offence.
If the application conditions are met, a signed order would be provided to the investigator, who could then present it to the legal division of an Internet provider. The provider would then be required to hand the investigator the data and maintain a record of the transaction.
The privacy commissioners analysis of the proposal points out its similarity to the production order powers currently available to authorities seeking financial and commercial information, in place since 2004.
My concern is that so far there has been no discussion of monitoring ANY system such as this proposal, or indeed any other, for serious or systemic abuses by the Feds, law enforcement, or a too cozy relationship with any judge or JP. There needs to be some sort of 'sunlight' clause in any legislation which permits the public/newspapers/etc... to see what is going on, and who is doing it, and how often, and for what types of cases.
In fact, I see the option of including Justices of the Peace as warrant issuing authorities as problematic. I would want the warrant issuance limited to judges.
I would also expect ISP's to 'man-up' and post monthly stats on their own web sites as to the number of warrant (or without warrant) disclosures of customer information, by province, and maybe by city - so we can have a view into the frequency & locations of such requests.
reply to MaynardKrebs
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.