Appeared in the Toronto Star on January 4, 2010 as The Ten Players Who Will Shape Technology Law Predictions about future technology law and policy developments are always fraught with uncertainty, yet identifying the key players is a somewhat easier chore. Although Parliament is not scheduled to resume until March, […]
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The push for new Internet surveillance capabilities – dubbed the "lawful access" initiative – dates back to 1999, when government officials began crafting proposals to institute new surveillance technologies within Canadian networks along with additional legal powers to access surveillance and subscriber information. Over the past decade, lawful access has stalled despite public consultations, bills that have died on the order paper, and even a promise from former public safety minister Stockwell Day to avoid mandatory disclosure of personal information without court oversight. Last June, current Public Safety Minister Peter Van Loan tabled the latest lawful access legislative package. Much like its predecessors, the bill establishes new surveillance requirements for Internet service providers. In an about-face from the Day commitment however, it also features mandatory disclosure of customer information, including name, address, IP address, and email address upon request and without court oversight.
My weekly technology law column (Toronto Star version, Ottawa Citizen version, homepage version) notes that lawful access has long faced at least two significant barriers. The first involves ISP costs associated with installing new equipment and responding to disclosure requests. The government has attempted to address those concerns by promising to help pay the bills. It plans to provide some funding for new equipment and, in a little noticed provision, has opened the door to paying ISPs for providing customer name and address information to law enforcement authorities.
Appeared in the Toronto Star on September 28, 2009 as Case For Net Spying Not Closed Appeared in the Ottawa Citizen on September 29, 2009 as The curious case of the ISP access request that wasn't The push for new Internet surveillance capabilities – dubbed the "lawful access" initiative – […]
The latest Search Engine podcast includes an interview with Public Safety Minister Peter Van Loan on the lawful access legislation.
As expected, the Government has taken another shot at lawful access legislation today, introducing a legislative package called the Investigative Powers for the 21st Century (IP21C) Act that would require mandated surveillance capabilities at Canadian ISPs, force ISPs to disclose subscriber information such as name and address, and grant the police broad new powers to obtain transmission data and force ISPs to preserve data. Although I can only go on government releases (here, here), the approach appears to be very similar to the Liberal lawful access bill of 2005 that died on the order paper (my comments on that bill here) [update: Bill C-46 and C-47]. It is pretty much exactly what law enforcement has been demanding and privacy groups have been fearing. It represents a reneging of a commitment from the previous Public Safety Minister on court oversight and will embed broad new surveillance capabilities in the Canadian Internet.
The lawful access proposal is generally divided among two sets of issues – ISP requirements and new police powers.
1. ISP requirements
There are two key components here. First, ISPs will be required to install surveillance capabilities in their networks. This feels a bit like a surveillance stimulus package, with ISPs making big new investments and the government cost-sharing by compensating for changes to existing networks. The bill again exempts smaller ISPs for three years from these requirements. While that is understandable from a cost perspective, it undermines the claims that this is an effective solution to online crime since it will result in Canadians at big ISPs facing surveillance while would-be criminals seek out smaller ISPs without surveillance capabilities.
Second, the bill requires all ISPs to surrender customer name, address, IP address, and email address information upon request without court oversight. In taking this approach, Public Safety Minister Peter Van Loan has reneged on the promise of his predecessor and cabinet colleague Stockwell Day, who pledged not to introduce mandated subscriber data disclosure without court oversight.