The Lawful Access Spin

As expected, the government today unveiled Bill C-74, the Modernization of Investigative Techniques Act, better known as lawful access.  Since I’ m Tunis, I’m relying on the various releases from PSEPC, the Ministry responsible for the bill.  I’ll update this posting as needed once I’ ve had a chance to fully digest the bill [updateBill C-74 is now online]

Based on the PSEPC information, there are two key elements to this bill.  First, telephone and Internet service providers will be required to include an interception capability as they introduce new technologies.  Not all ISPs will be immediately affected, however, since those with under 100,000 subscribers will be exempted from the technological mandates for three years.  Those ISPs subject to the law will have one year to comply.  Access to this information will be subject to court oversight.

Second, law enforcement will be able to compel ISPs to disclose subscriber information, including name, address, IP address, telephone number, and cellphone number.  It would appear that such information can be compelled without judicial oversight.  The so-called rigorous oversight is basically limited to recording the requests and creating the prospect for audits on the use of this power.

A few comments on MITA and the government’ s spin on the bill.  First, the government is clearly trying to convince Canadians that we are playing catch-up on this issue, as it provides a chronology illustrating how the U.S., the U.K., Australia, and New Zealand have already moved forward with intercept legislation.  This should not be viewed as particularly persuasive- there are crucial elements in the Canadian legal framework (national privacy legislation, the Charter of Rights) that differ from those other countries.  Moreover, Canada is free to choose its own path and create Canadian provisions that better reflect national priorities and values.

Second, the government seeks to assure Canadians that their privacy will be protected with the oversight described above.  In fact, one document downplays the sensitivity of the information, likening it to "basic contact information, like that found in a phone book."  Unfortunately, the bill does precisely what privacy advocates warned against by increasing surveillance and decreasing oversight.  The oversight included in the bill is weak since it all occurs after the disclosure has been made.  What is needed is oversight before the disclosure to ensure that the proper privacy safeguards are maintained.  Moreover, we should not be lulled into thinking that the information is not sensitive – the information can hold the key to a wide array of additional information that can be exceptionally revealing.  As we learned with this week’ s Maclean’ s story, it isn’ t the phone number that matters, it is what the phone number can lead to and the same situation applies to ISP subscriber information.

Third, the government suggests that lawful access won’ t cost Canadians and will, in fact, "reduce costs to taxpayers and consumers."  Apparently the logic here is that government overspends to access this information at the moment (by having to actually obtain a warrant rather than a phone call in some circumstances) and this bill will therefore reduce costs.  I’ m assuming that everyone can see through this -obviously lawful access is going to create new costs for ISPs, who will ultimately pass along those costs to consumers.  To argue otherwise is just plain silly.

Fourth, the government plays the "it could have been worse" card.  It notes that the bill does not include requirements to retain data on web surfing habits or "know your customer" rules for ISPs.  The fact that the government declined to include even more invasive provisions should hardly be seen as a victory.

Fifth, it is important to note what is not in the documentation.  Yet again, the government has failed to make the case that this is necessary.  While they note that convictions are more likely with lawful access information and that this bill , there is no evidence provided that the current system has somehow led to botched investigations or failed prosecutions.  Indeed, access to subscriber information without a warrant is needed because "subscriber information is often required at the beginning of an investigation or for general policing duties. In these circumstances, the police may not be able to get a warrant given the little information available to them, and the time it would take in order to gather the necessary information for a warrant, where it is possible, can be critical to an investigation."  In other words, authorities don’t have enough evidence to justify obtaining a warrant, to the law is being changed to make it easier.

Canadians deserve better.  They deserve real judicial oversight before their personal information is disclosed and, given the costs (financial and otherwise) they deserve a full accounting on why this bill is needed.  


  1. American connection
    Anyone else think all this crap is some insane appeasement of the Bush administration to try them to play nice regarding softwood lumber and other irritants? The Martinites have no mandate for this stuff. We need legislation that reigns in the politions and makes them personally liable for their heinous action while in office. So-called parliamentary privilege is a crock to shield crooks.

  2. Comparison with wiretap
    The press releases are spinning this as an update of the wiretap law.

    For those of us who are not legal experts, can someone clarify the procedure to obtain a wiretap?

    With respect to this bill, the CBC report at

    “However, McLellan said that just like in the old wiretap days, police investigators will have to get the approval of a judge before they can have access.”

    This sounds different from what you say above.

  3. Fubar
    This kind of thinking by the politician is rubbish. Why give out such information so easily. If someone got their hands on it, we’d have bigger problems to deal with like identity theft. Which is worse, safeguarding the information so we won’t have the bad apples giving the population a headache or the good apples able to easily track us down for any reason they can think of? We should go our own direction and not have to follow what everyone else is doing.

  4. contact info for P2P (RIAA & MPAA) enfor
    The legislation allows for contact information to be provided to foreign governments under the Competition Act where it relates to treaties. This means that the RIAA & MPAA can ask the US government to request contact information for IP addresses if they believe the person at the other end is violating a(ny) treaty, without having to go to court first.

  5. Michael Orban says:

    Who’s brilliant idea was this?
    I am curious to know which members of parliment were involved in the drafting of this bill and which mp actually introduced it?

    It’s laws (proposed), that really make me angry. I live in what I consider to be the best country in the world, and for that I pay….50% of my income.
    Can’t I just enjoy my privacy and other freedoms alloted to me under various charter’s that make up this country’s legal system?

    A few technical issue’s to think about; Many Canadians have switched away from regular telephone providers in favoir of VOIP. This could be a way around having to get a warrent for a phone-tap. Additionally, whether using “interception technology”, or other nefarious ways to log one’s activity, once your IP address is made available. And what many people don’t realize is that most programs rely on plain text transmission without encryption.

    Telnet, ftp, instant messaging, email, to name a few.

    At this point it is “security through obscurity”, but once that layer of “obscurity” is stripped away and localized, YOU ARE NAKED.

  6. European guy says:

    European connection
    Contrary to what some people here think, there is less of an American connection than an European connection. What these laws state is more or less common practice in the EU already. Already in 1995 there was a communication of the EU calling on Member States to make lawful interception a reality on their networks. In several European countries there are clear requirements on how to do this. The ETSI organisation has protocols available for LI. The Netherlands, Italy and the UK are all particularly advanced in introducing these legislations. Just look on the net for Lawful Interception and one of these country names. Europe is now working on data retention requirements, where ISP’s and telephone companies are required to retain call detail records, e-mail records etc for 6 months to 2 or 4 years. This is not about the content, just the CDR’s

  7. Jason La Pierre says:

    What are the chances this legislation is actually going to pass? Personally, I’d say slim to none, but that’s just for now. If we elect a majority government in the upcoming election, then we would have something serious to worry about. Even if we do manage to re-elect another minority government, we can be almost assured that we’ll see a watered down version of the same bill hit the order paper by next Summer. It would be interesting to ask the law amendments committee if this bill or its provisions could be used by organisations like the CRIA/MPAA/RIAA/IFPI to obtain confidential user information for the purpose of attempting to enforce intellectual property law.

  8. A gift to the RIAA?
    The recording industry wanted the ability to find out who an IP address belonged to, and everyone cheered when the ISP’s didn’t have to provide it. It now appears that this information may now be gathered and released at the discretion of the police. Like the Patriot Act, this is a power that begs to be abused.

    It’s also going to cost a fortune, and has the potential to introduce major latency to networks.

  9. Where have we seen this before…
    First, it means our own spiec can now access information directly they had to (by law) get from non-Canadian sources.

    Cell phones I can see… They use a public resource. Namely the EM frequencies. I could argue in this case if the spies are allowed to listen in without judicial oversight then so should the rest of the public. OTOH the internet is generally run on private networks. Therefore it should not be subject to the same treatment until it goes over a public line or uses public resources.

    I’d like to bring up another related issue. Did anybody notice if the bill (link provided in the story) was checked with an AMERICAN spell checker or a CANADIAN one? I looked at another bill and the authors used an american spell checker. It seems the Americans are starting to write our laws for us…

    More reasons not to vote Liberal or BAT (Born Again Tory) in the next election. NAZI police state here we come…

  10. Multinationals interests overrides most
    C74 places the Competition Commissioner in the same league as the RCMP & CSIS. For all intensive purposes, this act is more about protecting multinationals, than fighting criminals & terrorists.

    Since PIPEDA has gotten in the way of RIAA & MPAA suing Canadians, the legislation re-interprets sections of PIPEDA by stating ‘This section operates despite the provisions of Part 1 of that Act’.

    Even more, it essentially gags ISPs from taking about requests (must maintain the secrecy of the investigation), and puts part of the onus of breaking encryption/ecoding on the backs of the ISPs, and were the ISPs can’t do it, to provided the means to do so. I would not be surprised if this meant that some ISPs would ban encrypted/encoded communications in there EULAs so they can comply with the act.

  11. I know where it started
    FYI, the recording industry has been sending lobbyists to the Hill for MP “courtesy calls” for years now. Specifically, this latest spiral came about from an industry-organized mini-concert on the Hill by such washed-up musicians as Tom Cochrane and Bryan Adams. Two of the biggest things I remember about the clip on CBC news were soundbytes from the recording rep saying that Cochrane had lost money from two to six million attempted downloads this year of his music -which to my mind is absurd as their damage claims- and a star-struck female MP
    flippantly making a remark that “we’ll just have to change the laws to protect them”. Brilliant.

    BTW, isn’t it odd that while the RIAA/CRIA wants to know exactly what I have on my HD, none of them seem to be concerned about the origin of the widespread drug abuse in their industry.

  12. Andy Dabydeen says:

    This is a frightening prospect for a country that is still relatively free. Guilt before innocence.

  13. Carmen Eadie says:

    I have a lot problems with people who are always trying to protect their privacy. What is it that you are trying to hide? We all have some type of skeleton in the closet, but who really cares. You can now use cocaine and still be elected to provincial office. You can be sexually indiscrete, bringing unwanted attention on your loved ones and others, and still command some type of respect, because well that doesn’t really impact your job, be you teachers, clergy, high ranking governemnt officials, or even presidents. Every time you use a debit care, you leave a trail of where you’re going and what you want. We should all live our lives like someone is watching. It’s too bad that we are all trying to ‘not get caught’ instead of just living an honest and openly tranparent life. Anyway, this privacy law doesn’t really bother me that much.. Carmen Eadie

  14. Rights c-74
    This goes to show that our right to privacy is being continualy taken away step by step, all in the name of security. They can color it how they please but it all comes down to the inevitable Big Brother syndrom. Why bother with the Charter of rights and our privacy laws. Lets just become a police state and get it over with, this is torture watching our freedom slip away because we Canadians seem to like to be told what to do without much of a fight.I pity the youth and thier future. One day they will have a camera at every turn to protect us from terrorists and ourselves. The hackers will also find it easier for them to obtain information as well. Who are we kidding. Soon Canada *if not already) will be spying on bank accounts just like the United States do, all in name security and getting caught up with the rest of the world. Is thie what we want as a Nation? Is this Canada’s unique identity?

  15. Concerned Citizen7812 says:

    Re-Re rights
    Judges are in place for a reason. To oversee that the law is being properly followed and that the police have proper cause before you go on spying on people. If you circumvent this process then you make the police have judical powers (Isnt that what court is for though?). How many times has a court thrown out cases because the poilce have not follwed the law properly. I think there are countries that police are judges also. And I think a lor of these are thrid world countries have some serious human rights issues as well . I am not saying it would be on the same level but this sure opens the door for a lot of abuse concerning personal information and violation of private life Or take a look at Americas Patriot act. That right there is practically martial law that can almost overaide anything if the so desire. They can send a smart card to every citizen in a matter of days. The technology has been in place for years ready for the word. I hope this is not the direction this country is heading. Its not about hiding anything but it is about the right to exist as a human being and having some protection from “THE MAN” pervading ones personal space at a whim or hunch without the proper safties in place. Give them an inch and they will take miles. Isnt opening mail a Federal offense? The US does a lot of this kind of thing and gets away with it to. Do you as a Law abiding citizen feel you deserve more than to be treated this way and be spied on? Imagine if Nixon had this in place. No one would ever know!

    BTW good hackers can mask IP and take someones elses IP identity

  16. Mobile Phones says:
    This privacy issue is just getting worse and worse. One should realise that this is not only effecting those in America but the world over. America has forced many countries to make certain questionable laws in order to protect America. I’m not making a comment to insult anyone, only a comment to let everyone know that this issue is becoming even a bigger problem. Countries who want to get into America’s “good books” are almost forced to make questionable laws that violate it’s citizens privacy and allow American governments (or whoever it is) to hold information on another country’s residents. It’s really not all that fair.

    I really wonder how this is all going to pan out. Maybe movies like Enemy of the State are going to become spot-on.

  17. kiwishare says:

    I will never stop sharing no matter what!.The industry has made more money in sales from this avid bit torrent user than from 100 non-sharers!.They have lost nothing,they have only benefited hugely.Their stats are bullsh!t,there methodology is seriously out of wack,but they have lots of money and powerful friends!.

    Freedom is lost.