Canadian Lawful Access Bill Due Nov 15th

According to Michael Geist, the lawful access bill, Modernization of Investigative Techniques Act, is expected to be unveiled on Tuesday, November 15th.

The bill will “compel all Canadian telephone and Internet companies to create and maintain infrastructures that are intercept capable and to provide access to basic subscriber contact information such as a name, address or telephone number.”

According to a Treasury Board report, drafts of this legislation were developed by the Technical Operations division of the Royal Canadian Mounted Police (RCMP) and by Public Safety and Emergency Preparedness Canada (PSEPC).

Part VI of the Criminal Code currently sets out procedures for the law enforcement community to obtain judicial authorizations to conduct electronic surveillance of private communications to assist in criminal investigations. As a measure of accountability, section 195 of the Criminal Code requires the Minister of Public Safety and Emergency Preparedness1 to prepare and present to Parliament an annual report on the use of electronic surveillance under Part VI for offences that may be prosecuted by or on behalf of the Attorney General of Canada. A copy of the 2004 Annual Report, which covers a five-year period from 2000 to 2004, is available here.

Under the existing law, Subsection 184(1) of the Criminal Code, with a number of specific exceptions, makes it an offence for a person to willfully intercept a private communication by means of an electromagnetic, acoustic, mechanical or other device. Subsection 193(1), with similar specific exceptions, makes it an offence to disclose private communications that are lawfully intercepted, or to disclose the existence of such intercepted communications. The 2004 report revealed that no prosecutions had been commenced during the five year period against officers or servants of Her Majesty in right of Canada or members of the Canadian Forces for offences under section 184 or section 193.

Additional information on the subject is available from the Department of Justice’s Lawful Access Consultation site. Other background information is available here and from CIPPIC. An interesting point is that if, as a result of new legislation, ISPs are required to create and/or retain records that are not currently being kept then this will facilitate access to subscriber information as part of P2P litigation.