New technologies and lawful access

By Alan Gahtan - Sept 30, 2002

The Department of Justice Canada , in collaboration with the Portfolio of the Solicitor General of Canada and Industry Canada , are considering the different options available to address the challenges posed to lawful access in the context of modern telecommunications technology. Their proposals are set out in the Lawful Access – Consultation Document dated August 25, 2002 and prepared by the Government of Canada.

Rapid technological developments affecting lawful access have surfaced in recent years. In the context of wireline communications, advanced service options and calling features are creating new challenges for investigative bodies who have previously conducted many lawful investigations with the assistance of wireline service providers. The wide expansion in the use of wireless communications devices such as cellular telephones, digital wireless phones and satellite-based communications can also place significant obstacles in the event that the infrastructure supporting such devices does not contain lawful access capabilities. The rate at which new wireless technologies and services are being introduced to the public makes it quite challenging for law enforcement and national security agencies to maintain their technical ability to lawfully intercept communications. Furthermore, the global nature of such technologies can pose significant jurisdictional problems in criminal and terrorist investigations. In addition to wireline and wireless communications, investigative bodies are facing challenges relating to the Internet as a result of the technology used for Internet communications, the need for sophisticated equipment to lawfully intercept Internet communications, and the lack of provisions that would require Internet service providers to implement procedures for lawful intercept capabilities.

Lawful access is an essential technique applied by law enforcement and national security agencies to conduct investigations. In regards to telecommunications in Canada , it involves the interception of communications as well as search and seizure of information conducted pursuant to legal authority as provided in the Criminal Code, the Canadian Security Intelligence Service Act, and other Acts of Parliament such as the Competition Act. These pieces of legislation provide law enforcement and national security agencies with the power to intercept communications and search and seize information in a manner consistent with the rights and freedoms guaranteed in the Canadian Charter of Rights and Freedoms.

Law enforcement and national security agencies utilize lawful access as a tool in the prevention, investigation and prosecution of serious offences and the investigation of threats to the security of Canada . According to the Government of Canada, updating lawful access legislation is necessary to such investigative bodies in order to assist them in their continued efforts to combat crimes such as child pornography, drug trafficking, Internet and telemarketing fraud, money laundering, smuggling, price fixing and terrorism.

Currently, Canada does not have a legislative mechanism that can be utilized to compel service providers to develop or deploy systems providing interception capability, even if a legal authorization is obtained by law enforcement or national security officials to intercept the communications of a specific target. The Government of Canada is proposing that all service providers (wireline, wireless and Internet) be required to ensure that their systems have the technical capability to provide lawful access to law enforcement and national security agencies.

The legislation would apply to all service providers operating a telecommunications facility in Canada . Each service provider would be required to provide, at a minimum, a basic intercept capability prior to providing new services or a significantly upgraded service to the public. The legislation would set out the definitions and the general approach and would provide the authority for the Cabinet, on the advice of the Minister of Industry and the Solicitor General, to make regulations within the authority provided in the statute. Regulations could include authority relating to the setting of technical and other standards or requirements for a service provider. Regulations could describe what service providers must do to provide access to their facilities, security requirements relating to how intercepted information is handled, issues related to costs, and the manner in which regulations are to be developed. Prior to recommending any regulation to Cabinet, the Minister of Industry and the Solicitor General would consult with appropriate persons representing the interests of those affected by the regulations.

Several amendments to the Criminal Code have been proposed to deal with interception and search-and-seizure provisions, and to permit Canada to ratify the Council of Europe Convention on Cyber-Crime. Such amendments relate to production orders, orders to obtain subscriber and/or service provider information, assistance orders, data-preservation orders, virus dissemination and interception of e-mail. In addition to the foregoing proposed amendments, it has been proposed that amendments to the Competition Act should be considered with respect to access to hidden records along with other orders such as general warrants and assistance orders in order to enhance the efficacy of evidence gathering tools.

A preservation order is a procedural mechanism in the Council of Europe Convention on Cyber-Crime that does not yet exist in Canadian law. In essence, such an order acts as an expedited judicial order requiring a service provider, upon being served with the order, to store and save existing data specific to a client or transaction. A preservation order is temporary and only remains in effect for as long as it takes law enforcement agencies to obtain either a production order requiring delivery of the data or a judicial warrant to seize the data. The purpose of such an order is to ensure that information that is crucial to a particular investigation is not deleted prior to law enforcement officials being able to obtain a production order or search warrant. Such a preservation order can be distinguished from a more general requirement that service providers collect and retain a variety of data relating to all of their subscribers.

Various issues should be considered in relation to the interception of e-mail. Part VI of the Criminal Code creates an offence for willfully intercepting a “private communication”, in addition to a scheme for obtaining judicial authorization to intercept such communications. The requirements for intercepting a “private communication” are more onerous than those required to obtain a search warrant to seize documents or records. Section 183 in Part VI of the Criminal Code, defines the expression “private communication” to cover any oral communication, or any telecommunication made under circumstances creating a reasonable expectation of privacy. The issue relating to the foregoing is whether a communication, once put in writing, is no longer considered a “private communication” for the purpose of the interception of communications provisions of the Criminal Code. The significance of the foregoing issue relates to whether judicial authorization must be obtained under Part VI to intercept e-mails or whether a search warrant to seize documents or records will suffice. Questions have been raised as to whether the Criminal Code and other acts such as the Competition Act should be amended to clarify the type of order that should be obtained before e-mail is acquired.

Law enforcement and national security agencies require accurate information on the subjects of their investigations in order to determine where to target an interception. Determining the local service provider identification (LSPID) information is the first step in identifying a subscriber by means of address or telephone number. However, the only means in which this information can be obtained is through a time-consuming and costly process of directly contacting each local carrier. The Canadian Radio-television and Telecommunications Commission recently approved the conditions under which Bell Canada could release LSPID information without a court order for emergency, national security and law enforcement purposes.

A related issue is how law enforcement and national security agencies can obtain access to Customer Name and Address (CNA) information, bearing in mind that some service providers do not even collect or store information. The Canadian Association of Chiefs of Police has made recommendations to improve lawful access to this information, including the establishment of a national database. Such implementation would presuppose that service providers are compelled to provide accurate and current information. Issues arising from the foregoing include whether or not a provider should be compelled by law to collect CNA information if it does not already collect such information for its own purposes, who should bear the costs of collecting, retaining and accessing such information and if a database were to be established, who should be responsible for its operations.

Government of Canada officials plan to meet with interested parties in the fall of 2002 to discuss the issues raised in their Consultation Document on Lawful Access. A copy of the legislative proposals can be obtained at www.canada.justice.gc.ca/en/cons/la_al/b.html#6.

© 2005 Alan M. Gahtan. All Rights Reserved | Use is subject to these Legal Terms
Disclaimer: Not all materials may be applicable in your jurisdiction. Not intended to be a substitute for professional advice. No implied endorsement of, or affiliation with, any linked sites. Path to individual pages may change - please link to home page only. Linking Info

[FrontPage Include Component]