My weekly Law Bytes column (freely available hyperlinked version, Toronto Star version) examines the lawful access plan in light of Justice Minister Irwin Cotler’s announcement late last week that the government plans to move forward on the initiative this fall.
Although the specifics of the actual bill remain unknown, the spring 2005 consultations provided a good sense of what Canadians can expect. If enacted, lawful access would compel Internet service providers to install new interception capabilities as they upgrade their networks. The country’s major ISPs, who provide service to the majority of Canadians, will eventually be capable of intercepting data, isolating specific subscribers, and removing any encryption or other changes that they make to data transmissions. The proposal will likely contain an exemption for smaller ISPs, but all will be required to report on their readiness to conduct interceptions six months after the law takes effect. Failure to comply with the new standards would carry stiff penalties with fines of up to $500,000 and potential imprisonment for five years.
Lawful access would also provide law enforcement authorities with a wide range of new powers. For example, authorities could apply for new "production orders" with which they could compel disclosure of tracking data such as cell phone usage as well as transmission data, including telecommunications and Internet usage information. Law enforcement authorities would also have access to a new "preservation order" that could be used to compel ISPs to preserve Internet usage information for up to three months, forcing ISPs to store far more data than is currently the case. Among the most troubling aspects of the lawful access proposals are a series of new powers that are not accompanied by any judicial oversight. Law enforcement authorities, including the police, CSIS agents, and even Competition Bureau authorities, will have the right to obtain ISP subscriber information simply upon request without a warrant. In fact, the proposals even envision ISPs responding to such requests in certain situations within 30 minutes based solely on a phone call.
The column argues that before supporting this initiative, Canadians ought to ask some tough questions. I ask five:
1. Are all these new powers necessary?
2. Do the new powers contain sufficient judicial oversight?
3. Are the lawful access provisions constitutional?
4. Is lawful access strictly designed to address the threat of terrorism?
5. Will lawful access actually prove successful in battling Canadian terror?
Read the column for my answers which, not surprisingly, are critical of the lawful access initiative.