Questions abound over “lawful access” bill

After three years of ongoing multi-sector consultations, the controversial lawful access bill was finally introduced last week in the House of Commons, but the opposition party doubts the bill will survive the current political power struggle.

The impending national elections – likely to be held in a few months – has dampened the likelihood of the lawful access bill getting passed, said Joe Comartin (NDP -Windsor-Tecumseh), the opposition party’s critic for justice.

Bill C-74 titled, Modernization of Investigative Techniques Act (MITA), was introduced by Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness Anne McLellan. And though privacy advocates and industry representatives were consulted prior to the drafting of the proposed legislation, it has left them with more questions than answers.

If it passes, telecom service providers – including Internet service providers – would be required to build wire-tapping capabilities into their networks that allow authorized law enforcement units to intercept and monitor communications of suspected criminals. Concerns have been raised about these provisions by different groups – and for many different reasons.

One contentious issue relates to the costs associated with intercept capabilities. As building and providing such capabilities would mean additional costs for service providers – for both the physical equipment and administrative expenses – the question of who ultimately foots the bill remains hanging.

The Information Technology Association of Canada (ITAC), which represents 1,300 companies from the information and communications technology industry, believes that once the bill is passed into law service providers would have to “pay the cost upfront.”

“At this point, it looks like a large part, if not all, of the operational cost will be borne by industry. What industry does (to) deal with those cost is really – as it always is – a function of the market,” said Bill Munson, vice-president, policy, ITAC.

Whether shareholders end up absorbing the cost – by way of lesser dividends – or it’s passed on to the subscribers remains to be seen, he said.

Munson pointed out, however, that in a very competitive market it might be unwise to pass the cost on to consumers, especially if other companies don’t do the same.

In a statement, McLellan said the proposed legislation would reduce the ability of criminals and child pornographers to use new technologies to carry out illegal activities.

“Currently, under the law, police and CSIS (Canadian Security Intelligence Service) can only intercept communications with (court) authorization. This Act will not change that,” said McLellan.

However, the bill also authorizes law enforcement agencies to obtain subscriber information from service providers – name, address, phone number, e-mail address, IP address – without a judicial warrant.

This provision is what concerns privacy advocates such as Ottawa-based Canadian Internet Policy and Public Interest Clinic (CIPPIC).

Even before MITA was introduced in parliament, CIPPIC had raised questions about the extended power accorded by the proposed legislation to law enforcement.

CIPPIC argued that judicial oversight is required, as a form of check and balance, in the exercise of government authority in pursuing suspected criminals. “While we understand and appreciate the need for powers (such as) wire-tapping and police surveillance in appropriate circumstances, we are certainly not convinced the government has made the case that less judicial oversight is the answer,” said David Fewer, CIPPIC staff counsel.

MITA proponents justified the bill saying law enforcement must be able to maintain its ability to investigate crime and terrorism in the face of rapidly evolving communications technology.

In a statement published in the Globe and Mail, McLellan said Canada is “well behind other nations to which we regularly compare ourselves as it relates to the ability for law enforcement to intercept certain kinds of new technologies.”

But Fewer is not convinced the argument of Canada being “behind” other countries in terms of lawful access provisions should bear any weight on this debate.

“The question isn’t what Australia is doing, what the United States is doing, or what any other country is doing. The question is what is appropriate for Canadians, given our system of law, our constitutional guarantees to be free from unreasonable search and seizure under the Charter, and our traditional civil liberties,” said Fewer.

While admitting that changes need to be made to provide law enforcement with tools and authority to keep up with advances in technology, one member of Parliament believes the MITA bill does not provide “sufficient safeguards against abuse.”

Comartin said giving police forces the right to demand information from service providers without judicial oversight is “unacceptable in a democratic society.”

“The government claims there is a proper balance between law enforcement and privacy rights, however, the NDP is adamant that this is not the case in the proposed bill,” said Comartin.

Although the legislator believes Bill C-74 will “not likely go ahead” in the House of Commons, the NDP will oppose any similar proposed legislation in a subsequent Parliament.

“We…will not allow for any interception of telecommunications of any kind without full judicial authority,” said Comartin.

Both CIPPIC and ITAC will be making submissions to Parliament when the MITA bill goes through committee deliberation.

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