Canada gives lawful access another look

The federal government has rekindled debates around lawful access with the launch of a consultation process that discusses the possibility of granting law enforcement agencies greater access to Internet and telecom service providers’ subscriber data.

Public Safety Canada has issued the Customer Name and Address (CNA) Information Consultation Document in a bid to institute legislation to help law enforcement get “timely access” to CNA information.

“The purpose of this consultation is to provide a range of stakeholders…with an opportunity to identify their current views on possible approaches to updating Canada’s lawful access provisions as they relate to law enforcement and national security officials’ need to gain access to CNA information in the course of their duties,” the Public Safety Canada document read.

This report came on the heels of a U.S. District Court judge ruling that questioned the constitutionality of national security letters (NSL) issued by the FBI to telecom and Internet service providers requiring them to turn over customer information without proper court order.

The NSL program, which has been expanded under the U.S. Patriot Act, also bars service providers from ever revealing that they have been served with a NSL.

In its consultation document, Public Safety Canada noted the difficulties law enforcement agencies encounter when obtaining CNA information from service providers. The document lists some safeguards for preventing abuse, such as clear limitation on what customer information can be obtained and requirement of regular audits.

The list did not include the need for a court order with CNA information requests. The document also made no mention of whether a gag order on service providers, similar to the NSL program in the U.S., will be enforced as part of the proposed lawful access legislation.

Although this lawful access proposal seemed to be limited to information pertaining to the name, address, e-mail address, telephone and cellphone numbers of particular customers and not on the content of communication or Web activity, such information could still be detrimental to Canadians’ privacy, said Philippa Lawson, executive director at Ottawa-based Canadian Internet Policy and Public Interest Clinic (CIPPIC).

"Quite often, the police will be starting with a lot of content and what they want to do is match that content with an individual,” Lawson said.

Until recently, the Liberal-led lawful access proposal was shelved following a change in leadership in Ottawa in favour of the Conservative Party’s minority government. The incumbent government seems to have taken up the issue with Public Safety Canada initiating public consultations.

Lawson said the safeguard for lawful access must involve reasonable ground to suspect criminal activity. “They’ve got all sorts of minor safeguard that they are proposing and those are all important…but they don’t substitute for the fundamental safeguard of having reasonable ground to suspect criminal activity before you went ahead with these investigations.”