More disclosure needed for lawful access legislation

Public Safety Canada and Industry Canada have initiated a third round of consultations on lawful access, this time around the release of customers’ personal information by telecommunications service providers to law enforcement. Wrapped inside the obvious privacy implications, a lack of disclosure around the use of lawful access has generated much concern.

Little is known regarding how often wiretapping is carried out or customer information is requested; what the reasons behind such requests are; or how useful these methods are in assisting investigations and convicting criminals. Despite repeated requests, no such supporting data has been provided.

Without serious supporting data around which to frame such legislation, any attempts to push something through is readily perceived as suspect. As a result, the measure in its latest form has been widely seen as legislation requested by and written for law enforcement, without consideration for the significant impact the measure will have on several other groups.

Since 2002, privacy advocates and industry representatives have repeatedly voiced concern around the potential negative impact of poorly considered legislation for lawful access. The tabling of the Modernization of Investigative Techniques Act (MITA), or Bill C-74, in November 2005 by the previous government confirmed the fears of many interest parties.

Although all key stakeholders agree that legislation is needed, some of the issues that have been raised include possible privacy infringements, the potential for abuse, and the risk of over-overburdening industry with a lack of plan as to how enhancements will actually be implemented.

The latest consultations will be the third round of meetings with various interested parties on a matter of vital national security that has been consistently met with frustration. And that frustration is not expected to abate. Part of the reason frustration runs so deep among key stakeholders regarding the consultations is the apparent lack on the part of the government to take the concerns raised seriously.

Despite two rounds of consultations, the proposed legislation failed to reflect the concerns of both industry and privacy advocates. The reintroduction of the bill earlier this year in the form of a private member’s bill did little to quell concerns. With suspicions running high, the upcoming consultations risk becoming an exercise in futility.

Complicating the current situation further will undoubtedly be the lack of consensus among the various bodies that comprise government. The British television series Yes, Minister cuts very close to the truth (that is, with the addition of humour). The permanent bureaucracy, which in this case is in charge of consultations, often has different ideas and plans to the political representatives publicly held accountable.

Indeed, the much-criticized, hushed and hurried manner in which upcoming consultations are being held seems to greatly contrast with a political government that has not introduced its own bill to counter MITA in the 18 months since assuming power.

Despite a political change in governments, however, since the last drafting of this legislation, the bureaucracy considering the opinions of key stakeholders today is the same that heard those concerns twice before.

If nothing else, this round of consultations will test the ability of the Conservative government to compel the bureaucracy to heed the concerns of many, because in the end this legislation, like other security measures, has the potential to seriously impact each and every Canadian.

Alicia Wanless is executive director of International Perspectives, a firm specialising in analytical and research services. She is also the author of several reports and articles on issues in security focusing on wiretapping, cyber-crime and identity related issues.

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