New mechanisms needed for lawful interception

Recently, Liberal MP Marlene Jennings reintroduced the Modernization of Investigative Techniques Act (MITA) as Bill C-416.

The private member’s bill is a peculiar choice for pushing forward the Liberal’s tough-on-crime agenda considering the bill’s unpopularity and shortcomings when first introduced in November 2005 and subsequently died on the order paper when the previous government fell.

Little has changed in terms of the contents of the bill or opinions surrounding it.
MITA is a wiretapping specific bill that would mandate communication service providers (CSP) – including those offering Internet – to “put in place and maintain certain capabilities that facilitate the lawful interception of information transmitted” over service provider networks.

Lawful intercept or lawful access, which allows law enforcement agencies to legally, yet covertly track and eavesdrop on a suspect’s communications, is a valuable investigative tool in many jurisdictions.

Canada currently has no separate legislation covering lawful access. Lawful access legislation is a crucial bridge that can facilitate criminal investigations, provide a framework for how CSPs are to assist in such investigations and protect the rights of citizens.

Without legislation there is no fixed way to intercept a suspect’s communications, service subscriber information can be requested and received without following due processes and information regarding the official use of wiretaps can be difficult to find.

The shortcomings of MITA are clearly the source for its unpopularity among industry, privacy advocates and members of the public. In terms of potential abuse, MITA continues to base prevention of potential abuses of lawful access on a warrant-based system and an ex-post facto review process.

MITA provides no insight as to how CSPs will be expected to comply (in terms of technology or standards) with the bill or who will ultimately decide this. MITA also leaves CSPs with no legal means to recoup the operational costs of lawful interception, which include staffing specialized engineers and maintaining interception equipment.

An approach, which has curiously been left out of MITA (in 2005 and now), would be to establish an outside governing body that would oversee lawful access from compliance to reviews.

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